Should restricting access to aid be considered a crime against humanity under the R2P framework? Should R2P be expanded to include deliberate restriction of aid or willful abandonment of populations in the face of natural disasters? Part One of this two-part series outlined the debate that occurred in 2008 surrounding Cyclone Nargis in Myanmar. It also highlighted the popular arguments for including instances of willful omission into the R2P framework. Part Two will explore the arguments against the expansion of R2P to include crimes of omission, in particular, willful inaction in the face of natural disasters. Furthermore, this part will attempt to find the best way forward that prioritizes the concern for civilians on the ground in natural disaster situations where potential crimes against humanity are occurring
Why Expanding R2P Will Hurt the Doctrine Through Ideological Overreach
Should the scope of Responsibility to Protect (R2P) include willful inaction in the face of natural disasters? The arguments against expanding the scope of R2P to include willful inaction in the face of natural disasters are often centered in the concern of ideological overstretch and safeguarding R2P from further backlash. Whether or not such instances should be considered R2P cases has surprisingly generated somewhat of a one-sided consensus within the international community concerning the Cyclone Nargis crisis in 2008.
Many prominent NGOs, the UN Secretary-General and his special adviser on R2P, pro-R2P governments and the usual skeptics have spoken out against extending R2P to cover the international response to natural disasters on the grounds that it would stretch the concept beyond recognition or operational utility. Their core argument is that R2P is already highly controversial –– broadening its scope would make its application much more difficult. Expanding the doctrine could have the perverse effect of weakening support for tackling the Rwanda-like crisis of tomorrow.
Even the most senior scholars on R2P, like the former Special Adviser to the Secretary-General on the Prevention of Genocide, Edward Luck, have expressed hesitancy over incorporating willful omission in the face of natural disasters into R2P. Luck suggested at the time of Cyclone Nargis that: “it would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar.” Luck also mentioned that since the Outcome Document of the 2005 [World] Summit limited R2P to just four crimes, “we must focus our efforts on implementing these principles in these four cases.” UN Secretary-General, Ban Ki-moon, believed that the case of Myanmar was a humanitarian crisis and it should be dealt with it that way. According to Gareth Evans, if R2P “is to be about protecting, the Inuit people of the Arctic Circle from the ravages of climate change — if it is be about protecting everybody from everything — it will end up protecting nobody from anything.
Theoretically, the misapplication of the responsibility to protect to natural disasters might damage the R2P principle itself, making it more difficult to enact in genuine cases of genocide and mass atrocities. Paragraphs 138 and 139 of the 2005 World Summit Outcome represent an agreed upon international consensus on the scope and breadth of the doctrine. These sections were carefully engineered by negotiators to ensure that R2P only apply to four crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. Expanding R2P to include natural disasters and grave humanitarian situations would be inconsistent with the R2P’s founding language. It would also validate the fears of many states that R2P would be used to further infringe on the sovereign rights of states.
The current vitality of R2P is intimately tied to the reality that there is a deep misunderstanding about R2P in the international community, as many governments misconstrue the norm as a Western interventionist ploy. With the BRICKS countries and many in the Global South still mistrustful of R2P, advocating the expansion of R2P in this climate could be devastating to the doctrine. Thakur Ramesh stated at the time of Cyclone Nargis that invoking R2P is justified to stop large-scale killings or ethnic cleansing, however it cannot be invoked in cases of natural disasters. Furthermore, the Asia Pacific Centre for R2P did recognize the possibility of a crime against humanity being committed if “the Burmese government is deliberately withholding aid to people who are facing immediate risk of death.” The Centre ultimately advised against labeling the Cyclone Nargis crisis an R2P situation, stating that: “At present there is no evidence of widespread intent by authorities to cause great suffering.” Beyond their doubts about what expanding R2P would mean for the future of the doctrine, it’s clear the Asia Pacific Centre for R2P, among others, determined there was not a sound legal foundation for labeling the crisis in 2008 as “R2P applicable.”
Legally, many argued at the time that blocking aid isn’t a violation of one of the four R2P crimes. For acts to constitute crimes against humanity there must be a clear pattern with obvious intent. Alex Bellamy made this point by reiterating that crimes against humanity involve acts committed as part of a systematic attack against a civilian population. Bellamy claimed that the government of Myanmar was not engaged in such attacks in the Irrawaddy Delta since it was not denying all aid, or preventing aid agencies already deployed in the region from going about their work. Furthermore, he believed there was no evidence of widespread intent by military junta to cause deliberate suffering and that proving so would be nearly impossible. Determining intent, according to many, is the main reason why Myanmar was not an R2P-applicable case (although many like Wong and Ford strongly disagreed). If cases of willful omission by governments legally triggered the R2P doctrine, there would still be compelling reasons R2P-based intervention would be an inappropriate path according to some.
The political opposition to expanding R2P to include natural disaster situations, specifically at the United Nations Security Council, can’t be overstated. Several Security Council members made it clear during that they would block any attempt to use the Council to impose assistance against the wishes of the Myanmar’s government. Additionally, Russia and China’s outright opposition to calls for R2P in such situations is a major obstacle and clear indication that invoking R2P would never get past the Security Council. During the Cyclone Nargis, China and the Association of Southeast Asian Nations rejected the possibility of forcibly delivering supplies without the junta’s consent and argued that R2P did not apply to natural disasters.
The positions of China and the ASEAN countries only grew stronger after France’s Foreign Minister called for invoking R2P. The reluctance of ASEAN to view Cyclone Nargis as an R2P situation was not only because they did not believe that the principle applied in this case, but also because they were concerned about the potential interference in a nation’s domestic affairs. China, for example, claimed that the situation in Myanmar was not a matter of “international peace and security” and didn’t apply to the Security Council. There were other pathways at the UN, China argued, more appropriate for coordinating the delivery of international assistance (a point also made by many opponents to applying R2P in Myanmar).
Another important counterargument to advocates of expanding R2P is that misapplying the Responsibility to Protect would make humanitarian conditions worse in Myanmar and elsewhere. Some commentators in 2008 were fearful of any forceful action by external actors to force aid into Myanmar for fear that their efforts would backfire and cut off the aid that was already successfully entering the disaster zones. Looking forward, they argued, efforts to apply R2P again, in a case of large-scale killings, could be undercut. In other words, they feared that invoking R2P in Myanmar could have endangered lives elsewhere tomorrow and possible even delayed immediately help for Nargis victims.
On this point, the impracticality and potential collateral damage associated with potential military action under an R2P mandated mission underscore the broad concerns from many in the international community about how R2P would be actualized. As Alex Bellamy stated in 2010: “those who have attempted to use R2P to justify the delivery of humanitarian aid against the wishes of the host state (Myanmar) have not really considered the practicalities.” From airdrops to full-scale invasions, it’s hard to see any viable and practical approaches to implementing R2P in a natural disaster setting without further harming the livelihood of civilians on the ground, he said. Bellamy aptly summed up the counter-productivity of potential intervention strategies: “The problem with these approaches is they threaten to divert attention away from the delivery of humanitarian relief, making cooperation with local authorities more difficult and regional support less forthcoming, ultimately delaying assistance to those who need it most.”
Andrew O’Neil stated in 2008 that a full-scale invasion with humanitarian goals would have improved the conditions of the victims on the ground. Bellamy and many others in the genocide prevention community had major problems with such proposals, more specifically, the time it would take to mobilize, the effect it would have on aid flows and the likelihood it would be met with military resistance by the junta. Airdropping aid was another possibility proposed by many, but Bellamy and others noted the imprecision of airdrops, the possibility of drops being seized by the government, and the need for medical care and water purification kits to be delivered on the ground.
It’s hard imagine aid being delivered effectively without the cooperation of the Myanmar’s government, on top of the fact that Myanmar government would have likely expelled all of the United Nations staff members who were managing ongoing aid operations. More useful and practical options include utilizing regional organizations in cooperation with the UN Secretary General’s office, along with pressure from the UN Security Council and the General Assembly. Working to secure pathways and facilitate the work of associated relief agencies like UNICEF, the World Food Programme and UNHCR are some of the more tangible steps that can be taken to help civilians on the ground.
Ashley McLachlan-Bent and John Langmore claimed that “although it may be weak when it comes to rebuking the misjudged actions of its member states, ASEAN in the aftermath of Cyclone Nargis was, arguably, far more successful than any other attempts to engage the regime, conduct disaster assessments and facilitate the entry of aid into the country.” This reflects the sentiments felt by many, not only that invoking R2P during Nargis would have been counterproductive, both in terms of getting aid to civilians and in ensuring R2P’s utility in the long-term, but that there were more feasible options involving regional actors and the UN that were ultimately more constructive.
This brief has outlined the arguments for and against making R2P applicable in situations of natural disasters, or in cases of willful inaction by governments when their populations are facing humanitarian catastrophes. It is the hope that this piece helps one better understand the debate that occurred during the Cyclone Nargis crisis in 2008, as well as the continuing discussions within the international community on the appropriateness of viewing cases of willful omission through an R2P framework. While there were strong arguments made by many, including several of the founders of R2P, throughout the Cyclone Nargis crisis there remained several points that both sides agreed upon
Firstly, this is a debate that has waned since 2008 largely without a solution from the mass atrocity/ genocide prevention community. Given the mass confusion and disagreement during the last natural disaster turned mass atrocity situation (Cyclone Nargis), not having this discussion in the present could sacrifice timely and coordinated responses in the future. Working through this complex issue and establishing a strong international consensus or framework of action might avoid the delayed action or ineffective cooperation that would occur the next time a Cyclone Nargis comes around. This isn’t an impossible feat – the line that divided those for and against applying R2P in Myanmar wasn’t that wide. For example, even those who’ve argued against incorporating such cases into R2P have conceded that a situation like Cyclone Nargis came awfully close to being an R2P situation. It is important to note that the international community has rarely seen such examples of intentional omission to act in the face of natural disasters – the mechanisms for action and opportunities for such debates have been few and far between. Given the acceptance by many that such acts constitute crimes against humanity, along with the rising severity in storms and destructive weather patterns due to the effects of climate change, it might be time to revisit this issue sooner rather than later.
Secondly, the torchbearers of the R2P doctrine would be wise to use this issue as an opportunity to refine and perfect the norm, specifically on how it would apply in specific cases. It’s important to remember that in 2008 the international community unanimously accepted that the R2P exists and does require states to protect populations at risk. Since then, the norm has only grown in acceptance and importance. The main question is not whether or not states accept R2P, but rather how to apply it. Not only is this of great importance in terms of working out the unique case of R2P and natural disasters, but it’s also reflective of the larger issues that face the R2P norm. Establishing consensus in order to shape a framework for applying R2P in unconventional cases (where crimes against humanity are occurring) remains a major challenge. Doing so while stressing an understanding of an R2P that flexes its preventative aspects (Pillars I and II) rather than interventionist ones will be just as important.
A new view of R2P, coined by Jarrod Wong as “a constructive interpretation,” can address some of the aforementioned challenges. According to Wong, this evolved view of R2P can “apply not just to a government’s failure to protect its people from affirmatively perpetrated mass atrocities but also from harm based on omission where the government’s failure to act also constitutes a crime against humanity under international law.” The constructive interpretation of R2P would remove the focus off of the reference to natural disasters and instead shift it to crimes of omission where the failure to act constitutes a crime against humanity under international law. It’s important to point out that “natural disasters” were originally among the categories qualifying for R2P, but were ultimately removed by the time the U.N. adopted the doctrine in 2005. Wong’s interpretation reflects the points made by many: that the focus on “natural disasters” avoids the important distinction that it’s not that disasters at fault, but rather the human element that can acerbate suffering and constitute a crime against humanity.
According to Lloyd Axworthy, former Canadian foreign minister, “there is no moral difference between an innocent person being killed by machete or AK-47, or starving to death, or dying in a cholera pandemic that could be avoided by proper international responses.” Viewing R2P in such a way can provide for a more consistent approach to situations in which crimes against humanity are committed by willful omission. Ultimately, this is an issue that comes down to how one determined R2P should be used moving forward. Some claim that the international community should recognize that R2P “is not a delicate vase but a sturdy pot which states must be willing to take down off the shelf and use.” Others, more concerned with preserving R2P’s already fragile political capital, would be reluctant to agree that applying it in situations other than classic conflict-based crimes is constructive for both the norm and its future utility. The lack of consensus on how to apply R2P in cases of willful omission requires greater debate and increased attention. Doing so would prevent delayed responses to a future crisis, as well as the unconstructive and time-consuming political debates that would inevitably accompany it. Having constructive dialogue now on this complex issue might better protect civilian populations at risk in the future, which is what R2P ultimately was created to do.