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Volume 4

June 2008

Number 1

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
Vancouver, Canada

R2P and Burma: If Not Now, When?

The miserable saga of post-independence Burma drags on, giving tragic force to the old adage, "Just when you think things can't get any worse, they do." One can only ask, "What next?" (One answer suggests that another cyclone is not impossible.) It would be some kind of comfort to believe that whatever lies in store for the country cannot be worse than anything it has experienced hitherto, but as of May 20th, 2008, there are abundant signs that this also is about to be disproved. Decades of the extremes of greed and repression have given Burma the worst government in Southeast Asia (and the standards here are fairly demanding in any terms), which has left the population of what should be one of the region's wealthiest countries in continuous poverty while their leaders splurge on extravagant parties to celebrate the marriages of their offspring. Resources and investment opportunities are sold off to countries whose concern for the well being of the Burmese people is clearly nonexistent-surely an eternal black mark against India, a country that includes, in the person of Mahatma Gandhi, one of the great humanists of all time. The evident political will of the Burmese people has been consistently ignored, systems of forced labour and ethnic repression go unchecked, and now, to cap it all, Cyclone Nargis.

And, capping even that, there is the ineptitude, paranoia, and sheer inhumanity of the Burmese junta. If ever a government had forfeited even the last tattered shred of its right to rule (and it is arguable that the generals in their new capital of Nay Pwi Taw have even that), it has now disappeared. From every disaster comes at least one image which stays with you, unless of course we are speaking of observers whose capacity for ordinary human responses is on a par with that of the junta. For me, it will be long before I can forget the image of what appears to be a pool, but could be a field, or road, or even a village square, flooded, and beneath the surface of the waters, one can clearly see the bodies of three women, dressed in the characteristically colourful clothes of their region. It is somehow appalling to think that they must have risen to begin a new day, as they had done for many years, and gone about their usual tasks of drawing water, preparing food, seeing to the members of the family; then their familiar world rose against them and snuffed them out. We don't know and we'll never know whether they worked together-washing clothes, pounding rice or spices; all we know is that they float, drowned, just beneath the surface of the water. Perhaps they're still there, because there appears to be an deafening consensus on the part of such news media as are operating in Burma that the retrieval of the dead, much less their burial, is not a priority with anyone except international disaster relief agencies dedicated to the containment of disease.

We are all too apt to be fatalistic when confronted by natural disasters. "It's nature's way", we are told. I'm not sure that this will altogether do. To illustrate: after the loss of the semi-submersible oil rig Ocean Ranger in 1982 off the east coast of Canada, there was some talk in the province of Newfoundland about "the sea claiming its own". Perhaps so, but a train of human errors, minutely documented by a subsequent Royal Commission, showed precisely how humans contributed to satisfying the eternal hunger of the elements. Less sophisticated installations in the vicinity survived intact; Ocean Ranger sank not only because of the storm that it managed to ride out, but because of human fallibility. The devastating tsunamis caused by an earthquake off the coast of Sumatra in December 2004 could not have been prevented by any means we know of, but the systematic devastation of coastal mangroves in many parts of Southeast Asia removed a natural barrier against tidal surges, and so the devastation and death toll were worse than they might otherwise have been-human interference yet again.

The junta, of course, is not to blame for Cyclone Nargis, but its refusal to broadcast any warnings to its people that it was on the way is unforgivable (and unfathomable). The charges that can be laid at its door might include a very obvious and almost total lack of disaster preparedness and response capacity, as well as the instinctive decision to place regime survival over that of their people. The response of the international community has been heartening in some respects and abject in others. On the plus side, aid of all kinds and personnel qualified to distribute it and to take the necessary steps to shelter the living and dispose of the dead, were made available instantly. But the refusal of the junta to allow foreign aid workers to enter the country in anything like significant numbers, as well as reports of the seizure of food aid and substitution of provisions of lower quality have been met with hand-ringing and denunciation, but nothing else. The junta's apologists, in particular, have nothing to say in justification of its criminal behaviour. So it is appropriate perhaps to consider both at the regional and international level how this situation was allowed to arise in the first place, and the options available to the international community for dealing with it-should it, against the odds, develop the intestinal fortitude for doing so.

The junta, of course, is not to blame for Cyclone Nargis, but its refusal to broadcast any warnings to its people that it was on the way is unforgivable (and unfathomable).

Burma was admitted to the Association of Southeast Asian Nations in 1997 not as a mark of acceptance, but in order to encourage the regime to evolve into a government more attuned to basic concepts of the demands of international human rights law and indeed the rule of law itself. This strategy stands revealed for the fraud it always was. As for the international community, despite ringing declarations on the "Responsibility to Protect" (R2P), the death toll in Burma is set to climb inexorably and for no reasons other than ineptitude, indifference, and a lack of political will. Never have the protestations of "never again" sounded so hollow as they do, at least for this writer, today.

This paper explores the tension between traditional approaches to state sovereignty, especially the principle enshrined in Article 2(7) of the Charter of the United Nations (non-interference in the domestic affairs of a state), with the idea of the Responsibility to Protect, which posits that territorial sovereignty should never prevent states from coming to the aid of people in another country who face a threat to their right to their personal security, whatever form this might take. Indeed, proponents of the latter insist on the 'responsibility' aspect of what they claim as an emerging doctrine: in the Burmese context, other states should have rendered assistance before now whether the junta gave permission or not.

Before proceeding, it may be that by the time this paper appears, the situation in Burma will have been alleviated somewhat. That does not change the fact that for a fortnight or more, the government of that country failed in its duties to its people. Nothing it does or allows to be done subsequently alters this fact.

What is R2P?
The concept of the Responsibility to Protect is a development, indeed a refinement, of the notion of humanitarian intervention. Put simply, the proponents argue that when a civilian population is at risk, e.g. from armed aggressors, and the law enforcement or armed forces of the country concerned are unable or are unwilling to protect them (especially if they are the source of the aggression), then it is open to other countries to take whatever measures that might be necessary to ensure the safety and security of those at risk. The Burmese faced a very different form of risk after the Cyclone struck, but that is immaterial - they needed help, and their government withheld it.

The NATO action to protect Kosovar Albanians from the Serb army is usually cited as the leading example of humanitarian intervention; another is the Australian-led armed force which landed in East Timor in September 1999 following the results of a referendum which opted for independence from Indonesia: pro-Jakarta militias turned on the Timorese, and the Indonesian army did nothing. It is true that the government of Indonesia expressly permitted the Task Force to land and restore order; one wonders what would have happened had it refused to do so.

The concept of humanitarian intervention is somewhat neutral, but not so R2P: the use of the word "responsibility" denotes an obligation, and herein may lie one of the major difficulties with the entrenchment of the idea in international law, a point which will be elaborated below. Humanitarian intervention is a development of international humanitarian law, the body of rules that includes the four Geneva conventions of 1949 and their various annexes and protocols, the implementation of which is overseen by the International Committee of the Red Cross. The process of transforming the notion that states might intervene in the internal affairs of another country in certain circumstances to there being a duty to do so can be traced to the Report by the International Commission on Intervention and State Sovereignty, a group of experts convened specifically to consider the matter, which concluded its work in 2001. The Commissioners, co-chaired by former Australian foreign minister Gareth Evans, included former Philippine president Fidel Ramos and Canadian liberal front bench spokesman Michael Ignatieff, were supported by a number of foundations and the governments of Canada, Switzerland, and the United Kingdom. Canada's then Foreign Minister Lloyd Axworthy was a vigorous champion of the initiative. It should be emphasized that this was not in any sense an "official" undertaking, but appears to have emerged from discussions by like-minded individuals in a number of institutions and think-tanks.

The impetus for the creation of the Commission was supplied by events which took place during the hostilities in the Balkans that erupted in 1992 when it was clear that the Federal Republic of Yugoslavia was in all likelihood going to break down into its component parts (more or less as it had been before Yugoslavia was created by the Versailles Peace Conference of 1919). This was not at all to the liking of Serbia, the dominant partner in the Federation, and particularly its then leader, President Slobodan Milosevic. From the viewpoint of the ultra-nationalist Serbs, the breakup had further and unacceptable consequences in creating sizeable Serb minorities in a number of the republics, but most importantly, Bosnia. The result was a vicious conflict marked by a return to the sort of barbarism which was the hallmark of the SS during the Third Reich. In particular, the 1995 massacre of Muslim men and boys in the so-called United Nations safe haven of Srebrenica, and the subsequent discovery of mass graves in other parts of Bosnia, shocked the world opinion profoundly. It should be remembered that war crimes were not the exclusive preserve of Serbian regular or irregular forces, but there is no doubt that full responsibility for Srebrenica rests on the shoulders of the Bosnian Serb leadership, which received political and military support from Serbia itself.

Once the major hostilities appeared to have ceased, trouble then erupted in the Serbian province of Kosovo, with clashes between Kosovar Albanians who sought independence from Serbia itself and the Serb army. It appeared that the latter was prepared to employ at least some of the tactics that had disgraced the name of the Bosnian Serb forces some years previously, and international opinion considered that a second Srebrenica was not an acceptable outcome. The Security Council of the United Nations was unable to act, thanks to the vetoes of China and Russia, both of which are steadfastly opposed to intervention in the internal affairs of other countries unless a threat or breach of international peace and security has been declared by the council pursuant to Chapter Seven of the UN charter. No such declaration had been made, and therefore there were no legitimate grounds for intervention. It should also be remembered that Russia has for long seen itself as the champion of the Slavs everywhere: imperial Russia was accorded this status by the Ottoman Empire in the nineteenth century.

In This Issue

Moving Forward in Burma
Brent Sutherland writes on the history of Burma's troubles and a possible way forward

Paradox, Natural Mathematics, Relativity and Twentieth-Century Ideas
John Ryskamp presents a poem entitled The Twenty-First Century which he follows up with an article on Piero Sraffa, Kurt Godel, Motoo Kimura, and Albert Einstein

Somalia Report 2008
Academic and Somalian Citizen Aweis Issa on the Situation on the Ground in Somalia

Literary Contributions
Contributions from an International Selection of Writers

A Duty to Intervene, Not to Stay
A Response to the Recent Book What Happened? by former Bush White House Press Secretary Scott McClellan, by C.G. Bateman

With the United Nations unable to act, the initiative then passed to those countries that thought that armed intervention was manifestly justifiable. Western European countries were acutely conscious of the impotence of the European Union with respect to the mini war that had been waged virtually on its doorstep. The United States was outraged at what it took to be the duplicity of Milosevic in reneging on commitments he had entered into at the conclusion of the Balkan war. Accordingly, it was relatively easy to cast NATO in the role of protector of the Kosovar Albanians. Ultimata were given, and ignored. It was obvious that this population was at risk from the Serb army. People had started to flee their homes, and it was feared that at very least a major refugee crisis was in the making. But the problem was what form any armed intervention would take. The notion of humanitarian "intervention" suggests that intervening countries put troops on the ground and form a physical barrier between the civilian population and those that threaten it. However, the United States was none too keen to expose its interests to harm (or, put another way, the Clinton Administration did not wish to see a procession of coffins returning to the U.S. draped in the stars and stripes), due largely to what has become known as the "Mogadishu factor". This refers to the disastrous U.S. intervention in the civil war in Somalia, which included atrocities such as the highly publicized dragging of the bodies of two U.S. soldiers around the streets of the capital from the back of jeeps belonging to the militia of a warlord.

If troops were not to be deployed, the options were relatively few. It was decided that not only would Serb forces in Kosovo be harassed from the air, but that a strategic bombing campaign aimed at Serbia's infrastructure would be undertaken in order to bring home to Milosevic and the supporters the price of defiance. A bombing campaign was duly launched in which the air forces of many NATO countries, including Canada, participated. After just over two months of aerial bombardment, Milosevic finally came to terms. The net result of this unpleasant episode was the conviction on the part of the Kosovar Albanians that Serbia could never be trusted, and that independence was the only solution, a step which the leadership has since taken.

From the perspective of international lawyers, one of the most astonishing things about the NATO action was that the organization and its member states refused to take a position on whether their actions were legally justified or not. Some months after the conclusion of the bombing campaign I was at a conference in Manila, organized by the Pacific Command of the U.S. Judge Advocate-General. One of our luncheon speakers was the former legal advisor to the State Department, who had been in that position at the time of the NATO action. He was asked by a relatively junior officer as to whether the U.S. considered itself legally entitled to do what had been done, and the officer received the somewhat ambiguous answer that the U.S. did not take a position on the legality or illegality of what had happened. To their credit, most of the participants in the room burst out laughing.

It is not difficult to see why an assembly of lawyers would find such a statement to be literally incredible. International law is not neutral as to state behaviour. It assumes that countries act, or refrain from acting, in accordance with their international obligations. While it is always possible for countries to issue a "without prejudice" declaration, attempting to immunize themselves from the legal effects of an act or omission, it is hard to see how this could be done with something as fundamental as the violation of the territorial integrity of a sovereign state, not to mention the use of force against it which not only resulted in the destruction of a good part of its infrastructure, but must have been utterly terrifying for the civilians in the areas which were under attack. Even if it is reasonable to suppose that a good many of these individuals were in shelters, we should not for one moment underestimate the trauma that they must have suffered. Some years ago I discussed this very matter before a group of first year students. During the break, one of them came up to inform me that she had been resident in Belgrade at the time, and had taken refuge with her family in one of these shelters. She flatly refused to discuss her experiences with me, much less the class, and from looking into her eyes I could see immediately why.

Those who have never been subjected to aerial bombardment have absolutely no conception of what it is like. One of my earliest "political" memories is watching a BBC interview with General William Westmoreland, at that time commander of the U.S. forces in South Vietnam, in about 1964. Westmoreland assured the interviewer that the North Vietnamese were indeed recalcitrant, but a few more bombing runs would soon cure that. My mother turned to me and observed that this was precisely the mistake that Hitler had made during the Second World War. The reaction of the civilian population of Britain to the Blitz was a stiffening of resolve and determination not to give in to those who used tactics, with the added determination that, once the tables were turned, the other side would find out for itself what the experience was like, with interest added. A Vietnamese colleague of mine who sat in shelters while Westmoreland's planes bombed Vietnamese cities expressed entirely similar views. Knowing that one is "safe" is not quite enough to come through the experience with equanimity.

The broader point is this: while air force planners might demonstrate the brilliance of precision bombing to the media (although we should note that a great deal can be said about the extent to which "precision" is the appropriate word to be used here), it is one thing to see silent video footage taken from tens of thousands of feet in the air, and quite another matter to be on the ground within a mile or so of the bomb exploding. We have plenty of evidence as to the traumatic effects on populations not only from Belgrade, but also Iraqi cities as a result of the grotesquely named "shock and awe" campaign that preceded the invasion of Iraq.

My conclusion on this point is to agree that although it was unthinkable to sit by and content oneself with issuing protests while the Kosovar Albanian population was put to flight or worse, the destruction of Serbia's infrastructure, with consequent trauma for the civilian population, was not the right way to set about it.

International law requires a proportionate response. The NATO actions were surely disproportionate: it is no defense to plead the Mogadishu factor. In any case, one wonders what sort of resistance the Serb army might have put up against a sizeable and well-equipped NATO force which gave every sign that it meant to have its way.

Be all this as it may, it is clear that the primary requirement in the areas of Burma which bore the brunt of the Cyclone, just as it was after the tsunami of 2004, is immediate assistance rendered by those trained to deliver it. This means allowing food and medical equipment in, as well as personnel. The point is that this has to happen immediately. Speed was of the essence after the tsunami, just as it always is in the aftermath of, say, a marine pollution disaster. The first few hours are crucial if a catastrophe is to be avoided. Recognising this, the Red Cross has been trying to make headway with a treaty that would waive visa and other idiotic requirements in the aftermath of a disaster, the better to facilitate precisely the sort of help the tsunami victims required, as do the survivors of Nargis. This, however, goes against every instinct of authoritarian or controlling governments. It creates an irresolvable tension between the necessity of doing what should be done in humanitarian terms and the mania for exercising control.

R2P and International Law
Modern international law presupposes that the use of force by states is unlawful unless it is (a) in pursuance of resolutions by the Security Council taken under Chapter VII of the UN Charter (ousting Iraq from Kuwait being an excellent example), or (b), self defense. It should be noted that neither is an open invitation to act at will: when the use of force is authorized by the Security Council, that authorization will contain limits which may not be exceeded (this is the most often-cited reason for the claim of an invasion of Iraq to unseat Saddam Hussein went beyond the 1991 mandate to liberate Kuwait). As regards the use of force in self defense, a minor infringement of the sovereignty state which caused little or no damage to lives or property would not serve as the pretext for a major military campaign. Israel was perfectly within its rights to respond to attacks by Hezbollah in Lebanon in 2006, but it is doubtful that the bombing of Beirut airport was justifiable under this rubric. Again, the catch word is proportionality. Where, then, does humanitarian intervention fit, since it might not be authorized by the Security Council under Chapter VII, and it is most unlikely to qualify as self-defense?

The only answer can be that if the concept is to be entrenched in international law, then it can only be as a third exception to the prohibition of the use of force. For many, the dangers here are manifold. Some do not wish to see the broadening of permissive categories or the use of force under virtually any circumstances whatsoever. For others, the fact that humanitarian intervention contravenes the letter and spirit of Article 2(7) of the Charter of the United Nations, which prohibits interference in matters within the domestic jurisdiction of another state, vitiates the whole notion from the very beginning. Nothing, they think, justifies that.

R2P cannot be characterized as a principle of international law. If it were, then some measure of protection would have been afforded the people of Burma who are so obviously in need of it now. It seems to me that few governments would welcome the entrenchment of an obligation to act in circumstances such as these (or in Darfur, if it comes to that). It might be argued that having recognized Indonesia's sovereignty over East Timor, Australia sought to make amends by leading the Task Force that restored a measure of order after the pro-independence vote in the territory. Kosovo might have been an exception, explained by Srebrenica, not humanitarian principle. And it is also true that the whole notion of "intervention" has been tainted by the quagmire in Iraq. The apparently limitless resources deployed there would have been better devoted to Burma today (and a host of other humanitarian causes: it is unfortunate that few politicians regard making progress here as a suitable "legacy").

International law emerges from the practice of states. As this paper is nearing completion on at the end of May 2008, that practice appears to have been confined to hand-wringing, denunciation, and, it must be said, the provision of aid and offers of assistance. But apart from statements from the government of France, there has been little or no indication that the international community is prepared to defy a regime which the vast majority of its members refuse to recognize as the legitimate government of Burma - a curious dilemma to say the least. Worse, one wonders if the international community is not merely confirming the junta's sense of immunity. The R2P-CS Project (see note 2) describes the Responsibility to Protect as an "emerging norm". State practice in May 2008 can hardly be said to have contributed to further emergence.

Alternatives to intervention on the ground have been suggested, including dropping supplies by parachute. But to whom? The regime (and let us remember that the arm of the government is extremely long) is unlikely to stand back and watch the population avail itself of such assistance. And one wonders how many people are in a fit state to do so in any case. We know from the aftermath of disasters that when people are desperate, they become selfish and violent: the weakest will go to the wall, and the fittest will survive. It is hard to see how aid could be distributed fairly and equitable - on the basis of need - other than by the trained personnel of relief agencies.

In legal terms, the adherents to Article 2(7) are at least taking a principled stand by insisting that the notion of territorial integrity and state sovereignty is so central and paramount to the international legal order that other considerations must give way before it. For others, the idea that the Kosovar Albanians might find themselves in a second Srebrenica, or that the civilian population of Darfur must simply accept the consequences of being who they are and where they are as best they can, or indeed that millions of people in Burma might die in preventable epidemics, is completely unacceptable. They would say that the basic notion of state sovereignty is not itself under threat, and that modern states routinely involve themselves in the affairs of others in ways never contemplated when the UN Charter was adopted in 1945: international law has moved a very long way since then. The real threat is to the authority of a government, but we are talking here of administrations or regimes that have been weighed in the balance and found wanting.

My tentative conclusion, reached with some reluctance, is that rather than the Responsibility to Protect, we have the Option to Protect. I for one would accept that there has been genuine outrage on the part of governments worldwide at the behaviour of General Than Shwe and his unsavoury associates. But it does not appear that there is general readiness for the notion of "responsibility" and its clear connotations of the existence of a legal obligation.

It is very difficult to look at the response of the junta in Burma in the ten days following Cyclone Nargis, and seriously assert that theirs has been the response of a responsible and caring government, fully conscious of its obligations to its citizens. The impounding of food aid and the distribution of substandard fare, the refusal to allow aid workers access to the disaster zones, the insistence on continuing with a referendum the results of which can never have been in any possible doubt, all speak to a level not merely of callousness, inhumanity and incompetence, but to my mind, criminality. These actions are a crime against the Burmese people. As I said earlier, the junta has no legitimacy: today, it is not difficult to find reasons for its removal, and concluding that the Burmese people deserve much, much better.

More incisive articles from Ian Townsend-Gault

Fixture Postponed: The Iran Stand Down

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