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? This piece is the first part of a two-part blog series that will examine this largely unsettled issue from the point of view of the mass atrocity/ genocide prevention community.
Since the advent and proliferation of the Responsibility to Protect norm (R2P), which emerged from the Conference on State Sovereignty in 2001, a global paradigm shift has begun to take root concerning the relationship between governments and their peoples. R2P puts forward that it is a state’s duty to protect their populations and that sovereignty should no longer be used a shield for governments to hide behind. In particular, states have a responsibility to protect civilians from four particular crimes, namely: crimes against humanity, war crimes, ethnic cleansing and genocide. The growing ubiquity of R2P and its institutionalization can be seen (in recent years) within the United Nations, regional organizations and capitals across the world, thus shifting the focus of international conflicts from the state to the human level. The debate and controversy surrounding R2P has been plentiful and typically focused on the question of sovereignty, the legitimacy (and effectiveness) of interventions and the utility of R2P as a normative framework for action. But lost aside these more prominent debates is a particular controversy that emerged after Cyclone Nargis in 2008 in Myanmar.
Prompted by France’s Foreign Minister invoking R2P at the UN in the wake of the Myanmar government’s reluctance to allow aid to civilians, a fierce debate ensued concerning the doctrine’s applicability in Myanmar, and more generally, its applicability to natural disasters. The question of whether or not a government’s refusal to aid civilians in a disaster setting constitutes an R2P case quickly became a hot topic in policy circles both in Turtle Bay and in other global political spheres in 2008. But due to blowback, any traction this idea had received has largely abated since. Given the recent cases of governments refusing to directly or indirectly assist civilians during natural disasters, namely in Darfur and Myanmar, the relevancy of this debate should be revisited. While many in the mass atrocity/genocide prevention community have shunned the prospect of natural disasters being considered as R2P cases, the legal and moral arguments for doing so shouldn’t be discounted. This piece will seek to outline the recent history of this debate, the prevailing arguments on both sides, and a way forward that most effectively prioritizes constructive action and policy-specific solutions over attention-diverting ideological and politically motivated debates.
Why Including Crimes of Omission into R2P is the Logical Evolution of a Doctrine
As set out in the 2005 UN Summit Outcome Document, R2P applies only to a state’s failure to protect its populace from mass atrocity crimes, i.e., “genocide, war crimes, ethnic cleansing, and crimes against humanity.” The UN’s definition is distinctly narrower than the original expression of the doctrine (as formulated by the ICISS), as it specifically excludes instances such as “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” The result was what Alex Bellamy of the University of Queensland has called “R2P Lite”. Nevertheless, crimes against humanity remained a trigger for the invocation of R2P, according to the 2005 Outcome Document. The core question that had divided the international community in 2008 was this: could and should inaction of a government be categorized as a crime against humanity?
Some commentators believe that R2P can be applicable in such cases, specifically Gareth Evans (although his opinions reflect mixed views). In 2008, Evans claimed that “Myanmar’s failure to help its citizens and refusal to allow for the delivery of aid, [its actions] could be characterized as mistreatment of the population, and therefore an ‘attack’ against its population that intentionally caused great suffering.” Thus, in situations where a country denies aid and at the same time does not take measures to help its population, many believe the doctrine of R2P could be implemented on the basis of a “crime against humanity.” Also chiming in on this issue in 2008 was John Virgoe, the International Crisis Group’s Southeast Asia Director, who stated that whilst his organization wasn’t ready to call for an international intervention, the situation was approaching an R2P scenario because of the potential commission of crimes against humanity. Former Canadian foreign minister Lloyd Axworthy was one of the most ardent supporters of viewing the situation in Myanmar through an R2P lens. Axworthy claimed that due to past failures in Darfur and Congo, the international community needs advocates who would support and advance R2P in situations where crimes against humanity are occurring. Axworthy also believed that “the application of R2P to the situation in Myanmar would be a strong demonstration, especially to Asian countries, of the importance and viability of this international norm.”
From a legal perspective, Jarrod Wong’s inquiry into whether crimes of omission fit the description of the Rome Statute’s definition of a “crime against humanity” is particularly useful. Wong points to Article 7 of the Rome Statute of the International Criminal Court, which defines crimes against humanity as: “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder, or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Wong makes the point that triggering R2P for crimes of omission is justified by prevailing international criminal jurisprudence, and “there is no need to recognize natural disaster situations or any particular context involving harm by omission as a new and independent basis for invoking R2P.”
Theoretically, the only difference between crimes of commission, such as mass executions, and acts of omission, is in the severity of the crime not the type. According to Wong it is the state’s reluctance to act, not the natural disaster, that is considered the cause of the harm. If a state’s deliberate inaction can be identified as a crime against humanity, and the state is manifestly failing to protect its population, R2P should legally apply to the situation. Because of this, according to Wong, R2P can then be “applied equally to a state’s failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity.” Gareth Evans also stated that what occurred in Myanmar could classify as a crime against humanity in two ways. Firstly, it could classify as a crime against humanity by fitting the description of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. Secondly, it may fit under the international crime of “extermination”, defined in the Rome Statute as including “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”
Others have echoed Wong’s legal rationale by citing that the jurisprudence of international courts establishes that crimes against humanity can be caused either by acts of commission or omission, but only if those omissions are found with criminal intent. Stuart Ford found this point particularly important since many who reasoned that R2P did not apply to the situation in Myanmar claimed the junta’s blocking of aid was substantially different from deliberate state-sponsored killings that classically trigger R2P. But Ford effectively makes the legal case that “if killing via omission demonstrates the requisite criminal intent, it is just as much a crime against humanity as killing by commission.”
Judith Raffelseder’s legal dissection of this issue reached the same conclusion. The evidence of the situation proved that the military junta’s actions met the criteria of a crime against humanity because “it consisted of an organized pattern of non-accidental repetition of criminal conduct.” Raffelseder also concluded that the “blocking of aid was a crime against humanity that was part of a widespread and systematic attack against the civilian population.” Furthermore, Ford also concluded in his legal analysis that “all of the elements of a crime against humanity were present in Myanmar in the immediate aftermath of Cyclone Nargis.” One of Ford’s central points was that while the legal foundations for triggering R2P in a case like Cyclone Nargis were quite strong, the political will to implement it wasn’t there (in fact it was quite the opposite). Given this strong legal foundation for classifying government refusal to aid civilians in the wake of natural disasters as a crime against humanity, and given the fact that the purpose of R2P is to provide a framework for which the international community can effectively address such crimes, it is hard to discount the rationale of those calling for R2P to apply in such situations.
Among the concerns of expanding R2P is that doing so would jeopardize its already fragile political standing and ultimately the effectiveness future applications. Politically, it’s apparent why natural disasters were ultimately removed from the list of crimes that would trigger R2P from the 2005 Summit Outcome document. But is R2P really at risk of being overexposed and overused, or is it just as much at risk of being diminished as a result of its underuse? Given the international paralysis on Syria, the unrelenting abuses in Darfur and ongoing mass atrocities in Myanmar, the consequences of failing to exercise R2P to stop atrocities is a somber indication that the former is proving to be the more perilous.
Proponents of employing R2P in Myanmar reasoned that the reluctance to do so in situations where natural disasters are intertwined with crimes against humanity contradicts the doctrine’s core intention: to save civilians lives. At the heart of this line of thinking is the idea that there is no moral difference between a government shooting 100 civilians or killing 100 by blocking access to clean water –– the result is the same. As Gareth Evans put it, “if what the generals are now doing, in effect denying relief to hundreds of thousands of people at real and immediate risk of death can itself be characterized as a crime against humanity, then the responsibility to protect principle does indeed cut in.” Roberta Cohen also argued in support of R2P’s applicability by stating “that the aftermath of Cyclone Nargis is a case for R2P because what started as a natural disaster turned into a man-made disaster, and the crime committed could constitute a crime against humanity.”
Realistically, it’s probably true that 99.9% of natural disasters would never fit the requirements of an R2P situation. The rarity of such situations might lead some to believe that its inclusion into R2P would be a pointless endeavor. But the situation in Myanmar showed that in the face of such a rare situation, the international community was truly divided on how to respond and unsure of the legality and appropriateness of applying R2P to such a unique situation. But even those who disagreed on R2P’s applicability agreed that it should not have been so easily ruled out. One of the founders of R2P, Ramesh Thakur, who disagreed that Cyclone Nargis was an R2P situation, publicly stated “it would be short-sighted to rule out the relevance and application of R2P should the situation not improve and people start dying in large numbers from the after-effects of Cyclone Nargis.” Another architect of R2P, Gareth Evans, agreed that “when a government default is as grave as the course on which the Burmese generals now seem to be set, there is at least a prima facie case to answer for their intransigence being a crime against humanity – of a kind which would attract the responsibility to protect principle.”
A core problem though is not the weak consensus on R2P’s applicability here, but rather the lack of clarity on how it could be put into practice in such situations. On this point, Judith Raffelseder alludes to the importance R2P can play in acting as a framework that can guide responses to such situations. She claims that “the international framework of disaster response laws does not, or only to a certain extent, provide an answer to the refusal of aid in the aftermath of a disaster, whereas the relatively new concept of R2P is a useful tool in this respect.” While any sort of military intervention triggered by R2P would have likely been counterproductive in immediately helping victims on the ground, placing the situation in terms of R2P could have been useful by stressing the non-military means of coercion that define R2P. Timothy Garton Ash, a supporter of employing the R2P doctrine in Myanmar, also wondered how the international community could use non-military means of coercion to help civilians on the ground. Ashley McLachlan-Bent and John Langmore put forth that “ASEAN was ideally placed to use the concept of R2P as a way of demonstrating to the region that the principle does not automatically imply military intervention, but offers a variety of diplomatic pressures and strategies to ensure the best outcomes for those suffering.”
Regardless of which side of the argument one lies on, there’s a clear gap in terms of how an international response should look like under the R2P framework. Such a lack of policy-specific solutions may impede the breadth of the international community’s toolkit the next time a Cyclone Nargis situation occurs. The international community must ask itself whether this inclusion of instances of willful omission (into R2P), be it in cases of natural disasters, be seen as either the latest stage of an evolving understanding of R2P, or an ideological overstretch that, although morally attractive, jeopardizes the future of the R2P doctrine.
The second part of this blog series 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 piece 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.