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.

Responsibility?
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.