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Bengal_famine_1943Logical Broadening or Impractical Overreach: Should R2P Include Deliberate Inaction by Governments in the Face of Natural Disasters? 

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.

imagesOn 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.

Aralship2

Concluding Remarks

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.

 

Cyclone_Nargis_landfall Logical Broadening or Impractical Overreach: Should R2P Include Deliberate Inaction by Governments in the Face of Natural Disasters? 

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.” 

SONY DSCFrom 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.

7585429274_8851eff290_oProponents 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.”

Inle Lake, Myanmar

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. 

Part 6 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

By MARISSA GOLDFADEN

Asian human rights mechanisms

The workings of the Association of Southeast Asian Nations (ASEAN)

Founded in 1967, ASEAN is currently comprised of Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Timor Leste has observer status. The purpose of ASEAN is to boost economic growth, social progress and cultural development in the region; and promote regional peace and stability through respect for justice and the rule of law, and adherence to the principles of the United Nations Charter. In 2007, ASEAN adopted its own charter.

Decision-making within ASEAN

Secretariat Implements policy decisions; draws up ‘plans of action’ in collaboration with Senior Officials
Ministerial meetings Amend and endorse plans of action drawn up by the Secretariat
ASEAN Summit The highest decision-making body: gives final approval to plans of action

 

In terms of rights, ASEAN Vision 2020 seeks to create an ASEAN Community by 2020 where “all people enjoy equitable access regardless of gender, race, religion, language or social and cultural background; where civil society is empowered and gives special attention to the disadvantaged, disabled and marginalized; where social justice and the rule of law reign.”

The ASEAN Community is composed of three pillars of cooperation:

  1. ASEAN Political-Security Community (APSC)
  2. ASEAN Economic Community (AEC)
  3. ASEAN Socio-Cultural Community (ASCC)

Asia-Pacific does not have a regional system of treaties, courts, commissions or other institutions to protect and promote human rights. As such, the organization has recently established the following three relevant mechanisms:

  • ASEAN Intergovernmental Commission on Human Rights (AICHR)
    • Though it does not explicitly mention minorities, principle 2.2 of the AICHR’s Terms of Reference underlines respect for non-discrimination.
  • ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC)
  • Committee on the Implementation of the ASEAN Declaration on the Promotion and Protection of Migrant Workers (ACMW)

All ASEAN member states have ratified the UN Convention on the Elimination of Discrimination against Women (CEDAW) and Convention on the Rights of the Child (CRC).

ASEAN has also adopted its own declarations relating to women:

  1. Declaration on the Advancement of Women in ASEAN (1988)
  2. Declaration on the Elimination of Violence Against Women in the ASEAN Region (2004) 
  3. ASEAN Declaration Against Trafficking in Persons Particularly Women and Children (2004)

Established in 1985, the South Asian Association for Regional Cooperation (SAARC)’s main goal is to jointly promote social and economic development in Asia. Its current member countries are Bangladesh, Bhutan, Maldives, Nepal, Pakistan, India, Sri Lanka, and Afghanistan.

Created in January 2004, the Technical Committee on Women, Youth and Children is concerned with issues such as the trafficking of women and children within and between countries in the region; increasing women’s participation in politics; and women’s health and education. SAARC adopted a regional Convention on Combating the Crime of Trafficking in Women and Children for Prostitution in January 2002.

Established in 2004, the SAARC Social Charter “incorporates a broad range of goals in areas such as poverty eradication, population stabilization, women’s empowerment, promotion of health and nutrition, and child protection. It also requires member states to formulate a National Plan of Action, or modify any existing one, to implement the provisions of the Charter. It calls on states to enact any plan through a transparent and broad-based participatory process.”

The SAARC Charter does not list promotion of human rights as a goal. SAARC has not adopted any human rights convention or charter. It has not agreed to create any regional institution or mechanism to monitor adherence to, and implementation of, the various UN human rights conventions already signed by its member countries.

Image: therealsingapore.com

The situation of the Rohingya people in Burma remains dire. Even as President Thein Sein has launched political and economic reforms to move the country away from its authoritarian past, and even as Aung San Suu Kyi, Burma’s champion of human rights, has been freed from house arrest and is now in the middle of an historic, emotional, and heavily publicized visit to the United States, there is still a threat of genocide for the Rohingya. 

With this in mind, Christine Lim traveled to the campus of Columbia University on Sept. 14 for a discussion titled “Burma in Transition: Minorities, Human Rights, and Democratic Process.” Speakers for the event were Amartya Sen, 1998 Nobel Prize laureate in Economics; Wakar Uddin, director general of the Arakan Rohingya Union; T. Kumar, director of international advocacy for Amnesty International USA; and Elaine Pearson, deputy director of the Asia Division at Human Rights Watch. 

By CHRISTINE LIM

Opening the event was Wakar Uddin of the Arakan Rohingya Union and the Burmese Rohingya Association of North America. His graphic, eye-opening slideshow relayed the horrific facts of everyday life for the 800,000 Rohingya Muslims who live in Burma as a stateless minority with virtually no rights, having been stripped of their citizenship in 1982.

Even those who have lived in the country for generations are denied citizenship and birth certificates, Uddin said. They need permission from the state to reproduce at more than the replacement rate, marry, or travel outside their villages. Illiteracy is incredibly high among Rohingya, and fewer than 1 percent of them graduate from high school. Uddin described land confiscation, arbitrary arrests, and forced labor as rampant, and incidents of armed child soldiers waiting outside mosques to ambush attendees. He also said that the police routinely engaged in a practice officially known as “population reduction monitoring,” illustrating the sinister-sounding policy with a photograph of an old man shot to death.

Uddin declared that the Burmese government’s “massive ethnic cleansing” of the Rohingya, carried out with the help of the military, amounted to genocide and that full citizenship for the Rohingya was the only viable long-term solution. To this end, Uddin called on the audience to pressure the international community not only to supply aid but also to press Rangoon to repeal the 1982 citizenship law. He also urged the current Burmese government to grant the right to return to the estimated 1.5 million Rohingya who have fled to neighboring countries.

Elaine Pearson of Human Rights Watch said she recently visited Burma and did see some unexpectedly good changes in limited areas such as Rangoon, but that in Arakan the situation had only gotten worse. She expressed hope that Aung San Suu Kyi would take a more definite stand on the Rohingya issue during her tour of the United States.

Although Suu Kyi has shown concern over other Burmese social issues, such as the continued recruitment of child soldiers and prostitutes, she has remained silent regarding the treatment of the Rohingya minority in Burma. When asked during her June visit to Oslo, where she received the Nobel Peace Prize she was awarded in 1991, whether she thought Rohingyas should be considered citizens, Suu Kyi replied, “I do not know.”

Pearson pointed out that President Thein Sein and the National League for Democracy, Suu Kyi’s party, agreed on the confinement of Rohingyas in refugee camps and warned listeners not to be misled by the romantic idea of “cease-fire capitalism,” borne of the highly publicized peace agreements, signed but not acted upon, between Rangoon and military forces representing ethnic minorities. She said it was dangerous that civil society had been left out of discussions about the distribution of limited natural resources, since ethnic minorities were likely to lose out as a result. Pearson also stated that military reform would be necessary for positive steps toward democracy and human rights, because the military was currently “not on board” with those goals.

T. Kumar, of Amnesty International USA, spoke in greater detail about the difficulties of attending school, finding a job (as opposed to forced labor), or seeking medical care without citizenship and the right to travel freely.

Amartya Sen, the best-known of the speakers, urged listeners to keep a sense of balance with regard to the plight of the Rohingya, to avoid being either too discouraged or complacent about acting to improve matters where possible. He characterized the issue as a modern problem not only of human rights but of citizenship, saying what was necessary was a non-sectarian approach that truly sought to understand the tensions between ethnicities, as the problem was a complex one, stretching across religious, ethnic, and linguistic boundaries, and could not be solved by what he called a kind of wishy-washy “secularism” that insists upon giving the same five minutes of recitation from various holy texts before every communal gathering.

Coda

In a speech at the Asia Society on Sept. 18 in Washington, DC, Suu Kyi touched upon the conflict in Rakhine state, though she limited her discussion to abstract principles rather than concrete policies, such as the granting of citizenship, framing them as the responsibility of the government, as opposed to that of her party, the NLD:

 

“The government has formed a commission to look into the situation in the Rakhine. The NLD [. . .] want to give the government all the opportunities it needs to diffuse the situation there and to bring about a peaceful settlement. We do not want to criticize the government just for the sake of making political capital. We want to help the government, in any way possible, to bring about peace and harmony in the Rakhine state. Whatever help is asked from us, we are prepared to give—if it is within our ability to do so. But it is not for us—we are not in a position to decide what we do and how we operate—because we are not the government. I think this has to be understood by those who wish the NLD to do more. What we can do is to declare our principles and our preparedness to help in every way we can. [. . .] But I am not going to talk about the Rakhine issue in greater detail now.”

Photo: Salem-news.com

By MARISSA GOLDFADEN

Today, the Global Centre for the Responsibility to Protect released the fourth issue of their bimonthly bulletin, R2P Monitor. This issue features Syria, Sudan, and DR Congo, all in “Current Crisis,” and Libya, Nigeria, Côte d’Ivoire, Burma/Myanmar, South Sudan, Somalia and Central Africa, with situations of “Serious Concern.” Current crises are those where mass atrocity crimes are occurring and urgent action is needed; serious concern indicates that there is a significant risk of occurrence, or recurrence, of mass atrocity crimes within the foreseeable future if effective action is not taken.

In analyzing the violence in Syria, the Centre touches upon mounting sectarian divisions (which we wrote about here back in February), as well as divisions within the United Nations Security Council. While they call on the Syrian government to “immediately cease attacks on civilians and adhere to [Kofi Annan’s] six-point plan,” collective action must also be taken by the Security Council, General Assembly, and the whole of the international community.

Similar necessary action is laid out for Sudan, where the government “should allow immediate and unhindered humanitarian access to all areas of South Kordofan and Blue Nile. Crimes against humanity and war crimes perpetrated in South Kordofan, Blue Nile, Abyei and Darfur should be thoroughly investigated by a credible and independent body authorized by the UN.” The Security Council is also urged to take steps beyond an investigation in order to better secure a long-term conflict resolution.

In the case of Congo, the brunt of the responsibility for addressing the threat of terrorist factions and militias falls on the government and the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). Other parties charged with acting in this instance are international donors and countries with whom DRC shares borders.

As one would anticipate given the name and nature of the Centre and its publication, the key recommendations appear to be structured parallel to the pillars of R2P:

1. The State carries the primary responsibility for the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing.
2. The international community has a responsibility to assist States in fulfilling this responsibility.
3. The international community should use appropriate diplomatic, humanitarian and other peaceful means to protect populations from these crimes. If a State fails to protect its populations or is in fact the perpetrator of crimes, the international community must be prepared to take stronger measures, including the collective use of force through the UN Security Council.

Earlier this week, Genocide Watch and the Genocide Prevention Advisory Network (GPAN) put out a list and map of countries at risk of genocide, politicide, or mass atrocities in 2012. Categorized as current massacres, potential massacres, or polarization, a majority of the countries are in the Middle East and Africa. Current massacres are taking place in DR Congo, Sudan, Eastern Congo, Uganda, Syria, Somalia, Afghanistan, Pakistan, North Korea, Myanmar, and Ethiopia. According to GPAN, these countries are “at the mass killing stage. They have active genocides, recurring genocidal massacres, or ongoing politicides. They are erupting.” The groups and factions comprising the victims and killers include government supporters or protesters, militias, religious and ethnic groups, armies, and terrorist organizations. Which side they fall on varies by region.

On February 8, the Overseas Development Institute (ODI) held an event in London to launch “Network Paper 72, Local to Global Protection in Myanmar, Sudan, South Sudan and Zimbabwe.” Per the ODI:

The Local to Global Protection Project (L2GP) is an initiative to document and promote local perspectives on protection in major humanitarian crises. Based on research in Myanmar, Sudan, South Sudan and Zimbabwe, L2GP explores how people living in areas affected by natural disaster and armed conflict understand ‘protection’ – what they value, and how they go about protecting themselves, their families and their communities. The research also examines how people view the roles of others, including the state, non-state actors, community-based organisations and national and international aid agencies.

Speaking at the event were Justin Corbett, author of the South Kordofan/Nuba, Sudan Study; Simon Harragin, author of the Jonglei, South Sudan Study; Ashley South, author of the two Myanmar (Burma) studies; and Nils Carstensen (ACT Alliance), L2GP manager and co-author of Network Paper 72. Also in attendance were Dr. Sara Pantuliano, head of the Humanitarian Policy Group at ODI, and Wendy Fenton, coordinator of the Humanitarian Practice Network.

The impetus behind the project was namely the disconnect between protection activities at the local and global levels. The findings were consistent with the rationale, as the majority of local communities considered their own actions to protect themselves as more important than anything done by outsiders. The most common first line of defense was for people to get out of the way, whether that meant fleeing into the jungle, mountains, refugee camps or crossing the border into another country. Another popular survival strategy component was allying oneself with political or religious leaders who have connections and negotiating power. However, the study found that self-protection strategies often had negative consequences for local populations.

The Zimbabwe case study stressed the importance of “capturing local cultural and religious phenomena in assessing protection threats…includ[ing] witchcraft, religious sects and cult beliefs.” Outside actors largely ignore such issues, but they represent real protection threats for local respondents. In the cases of Myanmar, respondents hardly distinguished between immediate protection concerns pertaining to physical safety and security, and longer-term livelihood security issues. National actors tended to rank assistance priorities differently than communities and aid, and how it was targeted, was sometimes in conflict with local values and realities. This “illustrated the challenge of identifying the local voice.” As such, it is important to be mindful of “the inevitable presence of prejudices in the analysis and presentation of local perceptions,” necessitating greater interaction between international humanitarian actors and local actors.

Research for the South Kordofan/Nuba case study was conducted from 2005 (the beginning of a ceasefire ending a 20-year civil war) to 2011 (when violence flared up again). In accordance with the other case studies, “attempting to separate physical safety, rights and livelihoods, as international agencies commonly do, was not relevant to local understandings of protection.” Over the past six months, efforts have been made to lessen these ideological and practical gaps. Initiatives included “setting up local protection teams in Nuba, consisting of young male and female volunteers, whose role is to share local knowledge of wild foods or medicinal plants which may exist in one particular village, with other villages… the teams also disseminate advice on what actions to take during bombing raids to protect physical safety based on lessons generated from the previous period of conflict.”

Ultimately, international actors should heed the “predictive capacity of local actors who know what the protection threats are, and can articulate when they will happen,” since the former lack the capacity to respond to these.

Photo: hic-mena.org

Last Thursday, the government of Myanmar and ethnic Karen rebels signed a cease-fire agreement, effectively ending their 60-year conflict. However, many members of the international community remain skeptical as just two months ago, Human Rights Watch reported,

Fighting in Karen State flared on election day on November 7, 2010. Conflict between government forces and ethnic Karen insurgents has displaced more than 10,000 civilians . . . All parties to the conflict make widespread use of anti-personnel landmines. Abuses by the Burmese army in Karen State since November 2010 include forced labor, targeting of civilians, attacks on livelihoods, and the longstanding practice of using convict porters . . . prisoners were used as “human shields” to trigger landmines, draw fire during ambushes, or protect soldiers. Injured porters were left to die, and many were summarily executed for failing to carry heavy loads of munitions and supplies. Many of these abuses are war crimes under international humanitarian law.

Because of these grave violations, and given the fact that this is the sixth such cease-fire agreement to be signed between these two groups, Karen Communities Worldwide is calling on the government to engage in dialogue beyond the cease-fire in order to solve the conflict’s underlying political problems. Specifically, they are requesting:

  • A nationwide cease-fire
  • Dialogue for a political solution that guarantees ethnic rights and culture.
  • Stop military actions in ethnic areas
  • Stop human rights violations
  • Free all political prisoners, including ethnic leader Mahn Nyein Maung
The government says it is negotiating peace pacts with the other major ethnic rebel groups — the Chin, the Mon, the Kachin and the Kayah — with a goal of achieving a lasting  peace with them in the next three to four years. Professor Kanbawza Win posits that these various ethnic groups are fighting for their individual rights while simultaneously being unified in their struggle for national democracy. A major hurdle in fulfilling this ambition is the issue of political prisoners; though 130 were released on Friday, according to Amnesty International and as indicated above, “more than a thousand political prisoners may remain behind bars, many of whom are prisoners of conscience.”
Photo: euronews.net

* Burma’s ruling military junta seems to be inching towards democratic reform. The contentious Myitsone dam project has been called off and the government recently released more than 6,000 political prisoners. One of them, chief opposition leader Aung San Suu Kyi, has registered her National League for Democracy party to run in the upcoming elections. The party supports a constitutional amendment that would allow prisoners to vote. Additionally, bans on public protests and union strikes have been lifted.

But these positive developments are still far outweighed by the country’s persistent human rights violations. The United Nations Special Rapporteur on Human Rights in Burma, Tomas Ojea Quintana (pictured above), recently discussed the Burmese military’s use of children and forced labor, as well as discrimination against ethnic minorities. A National Human Rights Commission has been set up but lacks independence, and border conflicts remain unresolved. Lastly, despite the dam project not coming to fruition, exploitation of Burma’s natural resources, and the resultant displacement of people, continues to be an issue.

* Last Friday, 29 United States senators, Democrat and Republican alike, sent a letter to President Obama to express their “support for developing the necessary tools to successfully avert mass atrocities and prevent conditions that can lead to violence against innocent civilians.” The letter recapped the terms of Senate Concurrent Resolution 71, while also expressing appreciation for recent steps taken by the Obama administration to develop a ‘whole-of-government’ approach to genocide and mass atrocities prevention, such as the Presidential Study Directive 10 (PSD-10), a National Security Staff Director focused on the prevention of war crimes and atrocities, the creation of an Atrocities Prevention Board, and the mandate for an interagency study to inform the board’s work.

Photo: irrawaddy.org

* Yesterday, a Kenyan court ordered the government to arrest Sudanese President Omar al-Bashir, should he ever return to Kenya. Though al-Bashir is wanted by the International Criminal Court (ICC) on genocide and war crimes charges, he was not arrested when he attended a ceremony in Kenya last year. While the African Union does not want its members to enforce the arrest warrant, Kenya is obliged to cooperate as a signatory to the ICC. As such, the ICC reported Kenya to the United Nations Security Council. In response to the ruling, Sudan expelled Kenya’s ambassador and pulled its own envoy from Nairobi. The Kenyan ambassador was given 72 hours to leave the country.

* Secretary of State Hillary Clinton is scheduled to visit Burma later this week. In advance of the trip, the U.S. Campaign for Burma, in conjunction with 11 other human rights organizations, wrote an open letter to Secretary Clinton, “urg[ing] her to prioritize securing an end to the egregious crimes against humanity the Burmese Army continues to commit against ethnic minority civilians.” The country’s military-backed government recently unveiled reforms but atrocities committed as recently as last month have been reported by aid groups. The ongoing fighting has led to approximately 1 million refugees and internally displaced persons.

Photo: thelondoneveningpost.com

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