A cyclone is not enough

Article Type: News items From: Disaster Prevention and Management, Volume 19, Issue 2

On 3 May 2008, Cyclone Nargis struck Burma, leaving much of the Irrawaddy Delta under water. Early estimates suggested around 12,000 people were killed,quickly revised upward to about 100,000 by independent observers. Ultimately even that number proved optimistic.

Although estimates still vary, today about 138,000 are believed dead or missing in the cyclone’s wake (Haacke, 2009).

In addition to the outright casualties, 1.5 million people were displaced. Despite the humanitarian catastrophe confronting the country and the government’s obvious inability to respond effectively, Burma’s military regime (the nation is also known as the Union of Myanmar) initially blocked access by agencies offering humanitarian relief, inhibiting the delivery of urgently needed supplies and medical assistance.

The disaster occurred shortly before a 10 May constitutional referendum aimed at legitimizing the military government. The regime went ahead with the vote despite the crisis. During the crucial period immediately after the cyclone, the Myanmar military was primarily focused on the referendum rather than delivering assistance to the Irrawaddy region.

Organizations already present in the country – such as Médecins sans Frontières and Save the Children –were able to get a few aid workers into the affected areas, but they reported restrictions (New York Times, 13 May 2008). For instance, three MSF workers in one hard-hit town were refused government permission to travel or even enter a hospital to consult.

Other NGOs, UN agencies, and nations offered assistance, but the junta was slow to issue visas for foreign aid workers and UN personnel. The government insisted on distributing the aid itself – raising fears that much of the cash and supplies would be siphoned off by the military and would never reach the intended recipients. Aid workers’ movements were also restricted, for fear they might distribute pro-democracy propaganda and encourage social unrest.

Aid obstructed

About ten days after the cyclone struck, the UN Office for the Coordination of Humanitarian Affairs and Oxfam independently reported that, at most, only one-quarter of the required aid was being allowed into the country. The aid that did arrive was not being effectively distributed.

Reports also emerged of military officers hoarding aid for themselves and selling it on the black market (New York Times, 2008).

Frustrated by the lack of progress, on 7 May French Foreign Minister Bernard Kouchner urged the UN Security Council to invoke the newly agreed on “responsibility to protect” –often called by the shorthand R2P –in order to deliver aid without the consent of the Myanmar government.

This proposal was reiterated by the French ambassador to the United Nations and repeated by commentators, analysts, and politicians, primarily in Europe and North America. When the European Union met to discuss its response to the cyclone and the French proposal to invoke R2P, France’s junior minister for human rights, Rama Yade, told reporters, “We have called for the ‘responsibility to protect’ to be applied in the case of Burma” (New York Times,2008).

EU ministers failed to reach a consensus on the French proposal but EU High Representative for the Common Foreign and Security Policy Javier Solana said the international community “should use all possible means to get aid through to victims of Myanmar’s cyclone.” Media commentators in the USA, the UK, and Australia echoed Kouchner’s call for the international community to live up to its responsibility to protect – proclaimed at the 2005 World Summit –by delivering aid whether the Myanmar government wanted it or not.

Commentators disagreed, however, about the appropriate approach. Many suggested that the “responsibility to protect” could be invoked to bypass the Security Council, where the delivery of aid would be opposed by China, Russia, Indonesia, and South Africa. Some pointed to the international relief efforts in Iraqi Kurdistan in 1991, when the UK, France, and the USA established “safe havens” to protect Kurds from Saddam Hussein’s army without UN approval. One academic pointed to Kosovo as an example, arguing that the West should invoke the responsibility to protect as a way of bypassing the Security Council and be prepared to fight its way into Myanmar just as NATO fought its way into Kosovo (O’Neil, 2008). Clarion calls notwithstanding,China and the Association of Southeast Asian Nations rejected forcibly delivering supplies without the junta’s consent, arguing that R2P did not apply to natural disasters (Barber, 2009).

China, Indonesia, and Vietnam would likely have been skeptical about involving the Security Council in the international response to Cyclone Nargis irrespective of the proposals actually put on the table. Nevertheless, their positions hardened after Kouchner’s invocation of the R2P because, on one hand, they genuinely did not believe that the principle applied in this case,and on the other, they were concerned about the potential to increase coercive interference in a nation’s domestic affairs.

The Asian governments’ position about the applicability of R2P in the post-Nargis context was shared by some senior UN officials and Western governments. UN Under-Secretary-General for Humanitarian Affairs John Holmes described Kouchner’s call as unnecessarily confrontational.

UK Secretary of State for International Development Douglas Alexander rejected it as “incendiary” and Britain’s UN ambassador, John Sawers, agreed with the Chinese and Southeast Asian view that R2P did not apply to natural disasters and should not be invoked to justify the forcible delivery of aid or to coerce the Myanmar government (Borger and MacKinnon, 2008).

This article evaluates these judgments about the applicability of R2P to natural disasters. It argues that R2P does not apply. Attempts to apply the principle in natural disasters are likely to damage both the R2P norm and efforts to secure international access. There are other avenues available to international actors in situations where a state refuses to grant humanitarian access. Regional organizations, global humanitarians, and activists concerned about aid delivery in the wake of a natural disaster ought to focus on developing these other mechanisms rather than on expanding R2P to make it apply to every case of major human tragedy.

What is the “responsibility to protect”?

First, we need to understand what R2P is, and what it is not.

One of the few real achievements of the UN 2005 World Summit was the adoption of the “responsibility to protect” principle. As agreed by UN member states, R2P rests on three equally important and non-sequential “pillars”as outlined in the 2005 World Summit Outcome:

• 1.

  The responsibility of the state to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement.

• 2.

  The international community’s duty to assist the state to fulfill its responsibility to protect.

• 3.

  The international community’s responsibility to take timely and decisive action, through peaceful diplomatic and humanitarian means and, if that fails, other more forceful means, in a manner consistent with UN Charter Chapters VI (pacific measures), VII (enforcement measures), and VIII (regional arrangements). The UN Security Council may act in situations where states“manifestly fail to protect their populations” from the four crimes.

In April 2006, in Resolution 1674, the UN Security Council reaffirmed R2P and indicated its readiness to adopt appropriate measures where necessary. There are two important points to stress here: R2P applies only to four very specific crimes –genocide, war crimes, ethnic cleansing, and crimes against humanity –and it does not justify coercion outside the limits of the UN Charter.

R2P’s intellectual and political origins lay in older ideas about“sovereignty as responsibility.” Sovereignty has always entailed both rights and responsibilities. Even theorists most associated with the defense of unbridled sovereign power conceded this point. Thomas Hobbes, for example,insisted that the contract between individuals and the state would be voided if the sovereign threatened the individual with death or could no longer fulfill the function for which he or she is given power. In this situation, sovereign power is no longer owed obedience. The ruler is no longer indeed a sovereign(Macfarlane and Foong Khong, 2006).

Between the eighteenth and twentieth centuries, this idea was enumerated as the principle of “popular sovereignty” –the idea that sovereignty derives from “the people,” who have a fundamental right to determine their own form of government. First enunciated in the English,American, and French revolutions, this idea provided the basic legitimizing principle for decolonization and opposition to white minority rule (Bukovansky,2002). In the aftermath of the Second World War, it became one of the organizing principles of world politics (Roth, 2000). But it asks as many questions as answers: Who are “the people?” How is the people’s will determined? Popular sovereignty rests on the idea that the state is responsible to the people and owes them a duty of care towards them.

These ideas were given new impetus in the 1990s in reaction to a number of decidedly “uncivil” wars. Momentum developed in two different contexts: a discussion about sovereign responsibilities in the face of internal displacement and a debate about the so-called “right” of humanitarian intervention.

Brookings Institution Senior Fellow Roberta Cohen and Francis Deng (Cohen and Deng, 1998), then the UN secretary-general’s representative on internally displaced persons, developed the contemporary idea of “sovereignty as responsibility.” Their principal challenge was how to persuade governments to improve protection for internally displaced persons (IDPs). They developed the idea of sovereignty as responsibility to fit this purpose (Deng, 2004). The concept’s starting point was recognition that the primary responsibility for protecting and assisting IDPs lay with the host government (Cohen and Deng,1998). No legitimate state, they argued, could quarrel with the claim it was responsible for the well-being of citizens. Where a state was unable to fulfill its responsibilities, it should invite and welcome international assistance(Deng, 2004). Such assistance helped the state by enabling it to discharge its sovereign responsibilities and take its place as a legitimate member of international society (Deng et al., 1996).

During major crises, troubled states face a choice. They can work with international organizations and other interested outsiders to realize their sovereign responsibilities or obstruct those efforts and sacrifice their good standing and sovereign legitimacy (Deng et al., 1996). Sovereignty as responsibility focused on the responsibilities of governments, maintaining that effective, legitimate states were the best way to protect vulnerable populations. However, the theory does not address what to do when a state refused to request assistance or itself committed genocide or mass atrocities,pitting the sovereign right to non-interference –enshrined in UN Charter Article 2, Sections 4 and 7 –against a sovereign’s putative responsibilities.

This dilemma was most pointed in relation to humanitarian intervention. In the midst of the contentious global debate about the legitimacy of NATO’s 1999 intervention in Kosovo, UN Secretary-General Kofi Annan (1999) picked up the concept of sovereignty as responsibility. Mindful of the apparent contradictions between the rights and responsibilities of sovereignty, Annan challenged international society to develop a way of reconciling “fundamental human rights with the principles of sovereignty and protection of national self-determination.”

That challenge was taken up by the Canadian government, which created the International Commission on Intervention and State Sovereignty. Chaired by Gareth Evans and Mohammed Sahnoun, the ICISS developed the phrase “responsibility to protect,” set out the case for it, and focused on developing ideas in relation to humanitarian intervention (ICISS, 2001).

Although UN member states adopted the language of R2P, they chose to not adopt the ICISS recommendations wholesale. Instead they framed the new principle around the idea of sovereignty as responsibility. As Edward Luck (2008) has argued, it is important not to confuse what we would like the R2P principle to be with what it actually is.

This gets us to the question of whether R2P should be applied to situations like Cyclone Nargis, where a state cannot effectively respond to immense human suffering following a natural disaster, but where the state does not accept offered international assistance.

R2P and Nargis: why it did not and should not apply

If we understand the “responsibility to protect” properly, it is obvious that it does not apply to natural disasters themselves. As Edward Luck(2008), the UN secretary general’s special advisor, said about Cyclone Nargis:

It would be a misapplication of “responsibility to protect”principles to apply them at this point to the unfolding tragedy in Myanmar…the Outcome Document of the 2005 [World] Summit limited their application to four crimes and violations: genocide, crimes against humanity, war crimes, and ethnic cleansing. We must focus our efforts on implementing these principles in these four cases, as there is no agreement among the member states on applying them to other situations, no matter how disturbing and regrettable the circumstances.

What, though, about situations like Burma after Cyclone Nargis, where a government denies access to aid agencies? If it could be demonstrated that the government was deliberately withholding aid to people at immediate risk of death, it has been suggested that the government might be guilty of “crimes against humanity” –thereby committing crimes relevant to the R2P. This is because, according to Article 7, Section 1 of the Rome Statute of the International Criminal Court, a “crime against humanity” includes“other inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health.”

ICISS co-chair and International Crisis Group CEO Gareth Evans (2008)commented in the 12 May 2008, Guardian newspaper that it might be time to consider invoking the responsibility to protect because “there is at least a prima facie case to answer for [the Burmese generals’] intransigence being a crime against humanity –of a kind which would attract the responsibility to protect principle.” In a similar vein, ICG Southeast Asia Director John Virgoe told reporters that while his organization “was not setting out a blueprint for international intervention – we’re one step earlier than that –it is getting close to an R2P situation,”presumably because of the potential commission of crimes against humanity(Phillips, 2008). At best, this was a very tenuous line of argument.

Crimes against humanity involve acts committed as part of a systematic attack against any civilian population. The government of Burma was not engaged in such attacks in the Irrawaddy Delta. Burma was not denying all aid, or preventing aid agencies already deployed in the region from going about their work. There was no evidence of widespread intent by the authorities to cause suffering. But even if there were, there would still be compelling reasons R2P-based intervention would be an inappropriate path.

First, invoking R2P would not build an international consensus through the UN Security Council on action in such cases. Several Security Council members have made it clear that they would block any attempt to use the council to impose humanitarian assistance against the wishes of the host state. China, for example, argued that the situation in Burma is a natural disaster and not a matter of “international peace and security.” There are other UN avenues, China argued, more appropriate for coordinating the delivery of international assistance.

Indonesia shares China’s view, and it can be safely assumed that Asia’s other non-permanent member of the Security Council, Vietnam, shares this position as well. South Africa has also indicated its skepticism about the effectiveness and appropriateness of a Security Council resolution on this matter.

Second, the misapplication of the responsibility to protect to natural disasters might damage the R2P principle itself, making it more difficult to mobilize the principle in genuine cases of genocide and mass atrocities. Paragraphs 138 and 139 of the 2005 World Summit Outcome were carefully negotiated over more than six months and reflect international consensus. Negotiators insisted that R2P applies only to genocide, war crimes, ethnic cleansing, and crimes against humanity and that the Security Council must authorize coercive measures. To apply the principle to humanitarian catastrophes other than the four specified is a misapplication with serious consequences. Concerned that Western states will make a habit of expanding the principle’s scope, it is likely many states would backtrack from the commitments they made in 2005.

This is more than an idle theoretical problem. A reduced commitment to R2P would have practical consequences for the populations that are victims of genocide, war crimes, crimes against humanity, and ethnic cleansing. It will make it harder to forge consensus on the preventive and protective measures needed in those cases; more difficult to appropriate political will and material resources to enact the institutional reforms thought to prevent these crimes(such as improvement of the UN’s early warning capacity); and it will slow progress on doctrinal thinking about practical steps that can be taken to better protect threatened populations.

Progress has been made on all these fronts since 2005. Cases like Darfur, the Ituri province in Congo, the continuing abuses perpetrated by the Lord’s Resistance Army in Uganda, and attacks on civilians by insurgents and terrorists in Iraq and Afghanistan remind us that much more needs to be done. Misapplying R2P would stall this progress without improving the likelihood of achieving humanitarian access in the wake of natural disasters.

Third, those who have attempted to use R2P to justify the delivery of humanitarian aid against the wishes of the host state have not really considered the practicalities. In the case of Cyclone Nargis, at the most extreme end of the scale, it is difficult to see how Andrew O’Neil’s proposal for a full-scale invasion would have improved the lot of the victims (O’Neil,2008). It would have taken weeks to mobilize, would have been opposed by most states globally and by every state in the region, and would ultimately have been counter-productive. An invasion would increase rather than mitigate the number of civilian casualties, pose greater risk to humanitarian workers, and hinder efficient aid delivery.

At the more sensible end of the scale are proposals for airdrops of aid or for relief workers to be dispatched into the region without the approval of the host government (Daalder and Stares, 2008). In the case of Cyclone Nargis, the US government was associated with proposals for non-consensual airdrops, but Defense Secretary Robert Gates intimated the USA recognizes the need to operate with Burma’s consent.

The most urgent needs in a disaster are food, drinking water, and medical supplies. Food can be dropped from aircraft, but water purification kits and medical supplies need to be distributed by people on the ground. Airdrops are notoriously imprecise. There is a strong possibility that much of the aid would end up in the water or seized by the authorities. Without people on the ground to ensure that aid gets to those who need it, aid dropped from the air tends to find those members of the affected population who are strongest and most mobile. Acting without the government’s consent is likely to make it more difficult to persuade the regime to permit more international aid workers on the ground. It would make cooperation between NGOs and the military regime all but impossible, hindering rather than the helping the international relief work already underway (Chia, 2008).

The proposed dispatch of aid workers without government consent could get around some of these problems. Indeed, Médecins sans Frontières operated in the affected areas because it deployed there before the military was able to mobilize its response. But this strategy has its own problems. It would be impossible to get the volume of assistance required into the affected areas without government cooperation. It may also harm the efforts by aid agencies such as Médecins sans Frontières and Save the Children if the government decided to demand the withdrawal of all foreign aid workers in retaliation. Burma has already shown itself willing and able to deport relief workers who enter without visas.

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.

What can be done instead?

The Cyclone Nargis experience helped identify two promising avenues for coordinating responses to natural disasters and encouraging states to grant humanitarian access:

• 1.

  working with regional arrangements and strengthening their capacity; and

• 2.

  developing the UN mechanisms for humanitarian assistance.

The countries and regional associations best placed to assist vulnerable populations are those closest to them. In the case of Cyclone Nargis, ASEAN worked with the UN secretary-general to secure the regime’s acquiescence to the delivery of International aid and then played a significant role in coordinating the delivery of that aid. Although painfully slow and uncoordinated, ASEAN eventually persuaded Burma to grant humanitarian access. Despite lengthy delays in delivering aid supplies and assistance, the much predicted second round of deaths due to disease and malnutrition was avoided. But restrictions placed on aid delivery meant that, while aid was effective in helping forestall an impending catastrophe, reconstruction has been much slower and progress on moderating the regime’s abuse of its own population has been virtually nonexistent (International Human Rights Clinic, 2009).

The Cyclone Nargis episode highlighted ASEAN’s institutional incapacity. It took the organization fully two weeks to organize the humanitarian relief. Had disease broken out rapidly in the affected areas, the consequences might have been catastrophic. Nonetheless, there were many significant “firsts”for the region. Not least, it was the first time that ASEAN had taken the lead in coordinating a major humanitarian effort in partnership with the United Nations.

There are also alternative pathways by which the United Nations could be engaged with the provision of humanitarian relief. Most notably, the UN General Assembly and Security Council have adopted resolutions on the need for states to grant humanitarian access. The most obvious pathway lies in establishing a framework through which states can expedite the granting of visas to the United Nations and its major relief agencies such as the World Food Program, UNICEF,UNHCR, and the World Health Organization.

Important work has already been done to streamline and improve UN relief capacity, most notably through the establishment of the Central Emergency Relief Fund, which has helped expedite the release of funds to support humanitarian relief. The International Law Commission is currently reviewing the question of whether states have a legal duty to grant humanitarian access. The R2P is a hard won political commitment to prevent particular human-made disasters, not a cure-all for global humanitarianism. Expanding the principle beyond the four crimes to which it applies helps neither the victims of genocide and mass atrocities nor the victims of natural disasters. To strengthen global capacity for responding to natural disasters, much better paths are available –regional arrangements and the UN humanitarian system.

Alex J. BellamyProfessor of International Relations and Executive Director of the Asia-Pacific Centre for the Responsibility to Protect at the University of Queensland, Australia. He is the author of Responsibility to Protect: The Global Effort to End Mass Atrocities, published by Polity in 2009.