Is the failure to respond appropriately to a natural disaster a crime against humanity? The responsibility to protect and individual criminal responsibility in the aftermath of Cyclone Nargis.

AuthorFord, Stuart

On May 2 and 3, 2008, Cyclone Nargis struck Myanmar, devastating large portions of the Irrawaddy Delta and creating the potential for a massive humanitarian crisis. Yet, the Myanmar government rejected aid from some countries, limited the amount of aid entering the country to a fraction of what was needed, and strictly controlled how that aid was distributed. The United Nations and many governments criticized Myanmar's response to the cyclone as inadequate and inhumane, and senior politicians from a number of countries discussed whether the situation justified invoking the "responsibility to protect" doctrine

This article explores several questions, including: (1) whether an inadequate response to a natural disaster can constitute a crime against humanity and thus act as the trigger for the responsibility to protect; (2) whether the responsibility to protect could have been invoked by the international community in response to Cyclone Nargis; and (3) what countries would have been obligated to do if it had been invoked.

In particular, assuming that the invocation of the responsibility to protect would have been based on a finding by the Security Council that crimes against humanity were being committed by the government of Myanmar, would the international community be obligated to investigate and potentially prosecute the underlying violations of international criminal law? If so, what venues exist for the investigation and prosecution of these potential crimes?

  1. INTRODUCTION

    Cyclone Nargis struck Myanmar on May 2 and 3, 2008. (1) It wreaked havoc in the capital, Yangon, devastated large portions of the Irrawaddy Delta, and resulted in the immediate deaths of tens of thousands of people. (2) Most of the initial deaths were caused by the storm surge, which sent a twelve-foot-high wave sweeping across parts of the Irrawaddy Delta and submerging many villages. (3) The storm surge destroyed housing, (4) polluted water sources, (5) and contaminated or destroyed food stocks. (6) Many areas remained underwater for days or weeks after the cyclone. (7) The widespread devastation caused by the cyclone created the potential for a massive secondary humanitarian crisis. (8) Moreover, the geography of the Irrawaddy Delta made the delivery of humanitarian aid very difficult. (9)

    It quickly became apparent that unless a major aid effort was undertaken, tens of thousands more people could die from disease and starvation. (10) Yet, it appeared that the government was both ill-equipped to respond to the crisis (11) and reluctant to expend the effort necessary to organize an effective response. (12) Initially, the junta seemed more interested in preparations for a May 10 referendum on a new constitution. (13) There were also allegations that the government had been aware that the cyclone would strike Myanmar and could cause considerable loss of life but had refused to warn the population in advance. (14)

    The international community rushed to provide substantial humanitarian aid to the government of Myanmar. (15) However, the military junta rejected some of the aid offered by countries it viewed as hostile, including aid offered by the United States, France, and Great Britain. (16) It also strictly controlled how much aid was admitted (17) and how that aid was distributed. (18) The government particularly objected to the admission of international experts to assist in assessing the crisis and distributing the aid. Many aid workers were simply denied visas to enter the country. (19) Moreover, for the first three weeks, all foreigners, including those aid workers that had been admitted to the country, were prohibited from entering the Irrawaddy Delta. (20) At one point, the government seized all of the food, aid, and equipment brought into the country by the World Food Program. (21) The regime also tried to control aid efforts by private individuals and domestic organizations, (22) and there were allegations that the junta was diverting aid from those in need to its own supporters. (23)

    The United Nations repeatedly criticized the slow pace of the relief effort, (24) amid concerns that large numbers of people who had survived the initial storm surge were dying because they had not received aid. (25) On May 11, the spokesperson for the World Food Program stated that the government was only allowing in 10 percent of the needed aid. (26) Three weeks after Cyclone Nargis, aid was still only reaching 25 percent of the 2.4 million victims of the storm. (27) For its part, the Myanmar government insisted that things were quickly returning to normal and that it had the situation under control. (28) Senior British and U.S. officials criticized the response of the junta as "inhuman" and "criminal neglect." (29)

    On May 20, 2008, there was a small breakthrough, as the Myanmar government agreed to allow greater amounts of aid from fellow ASEAN countries. (30) This was followed on May 24, 2008 by a deal brokered by U.N. Secretary-General Ban Ki-Moon to allow aid workers of any nationality to enter the country. (31) A few days later, the government eased some of the restrictions on foreign aid workers and allowed more aid to flow into the devastated regions. (32) Despite the loosening of some restrictions, aid agencies continued to report that the government was making it difficult to coordinate and deliver aid. (33) At the same time, the government began evicting people from camps and shelters and sending them back to their home villages, even if their homes no longer existed. (34) Tensions continued between aid workers and the Myanmar government over the aid effort well into June. (35)

    During the crisis, Bernard Kouchner, the French Foreign Minister, famously recommended that the international community deliver the waiting humanitarian aid over the objections of the Myanmar government: "We are seeing at the United Nations if we can't implement the responsibility to protect, given that food, boats and relief teams are there, and obtain a United Nations resolution which authorizes the delivery and imposes this on the Burmese government." (36) Kouchner also suggested that the ruling junta could be guilty of crimes against humanity for restricting the supply of aid. (37) Several other senior European officials made similar statements. (38) There are also indications that the United States and some European nations considered requesting a Security Council resolution that would authorize the delivery of humanitarian aid without the consent of the Myanmar government. This plan was apparently dropped when it became clear that China would veto any such resolution. (39)

    Kouchner's comments led to a vigorous debate about whether the responsibility to protect (40) could properly be invoked in response to the humanitarian crisis in Myanmar. (41) Some commentators have suggested that the responsibility to protect doctrine should have been applied, (42) while others have argued that it would have been inappropriate. (43) In order to determine if the responsibility to protect doctrine applied to Cyclone Nargis, it first must be determined whether or not the situation in Myanmar constituted a crime against humanity. While the situation in Myanmar did not fit easily into the confines of a traditional crime against humanity, it more closely resembles that than a war crime, genocide, or ethnic cleansing. (44)

    If the situation in Myanmar was a crime against humanity, then the responsibility to protect would be applicable. First and foremost, this would impose a burden on Myanmar to take all necessary action to ameliorate the situation. If Myanmar was unable or unwilling to take the appropriate action, it would impose a burden on the international community to take steps to protect the civilian population of Myanmar. While the responsibility to protect doctrine emphasizes the need to use peaceful means first, it also commits the international community to taking "timely and decisive" action through the Security Council, if necessary. (45) This could include a Security Council resolution that permitted the delivery of humanitarian assistance by international forces on Myanmar's territory, although coercive military action would generally be considered a last resort.

    Thus, the question of whether crimes against humanity were occurring in Myanmar was crucial to the argument that the responsibility to protect doctrine could be invoked to override the government's resistance to the delivery of humanitarian aid. It also gives rise to a second important issue. If crimes against humanity were being committed, then it raises the possibility that some person or group of persons could be held individually criminally liable for those crimes. These are two very different kinds of responsibilities: (1) the obligations of states (both Myanmar and the international community at large) to the civilian population of Myanmar, and (2) the possible criminal liability of individuals for crimes against humanity.

    This article will first examine whether the situation in Myanmar could reasonably have been described as a crime against humanity based on the information available to the international community in May 2008. It will examine various legal theories that are suggested by the facts outlined above and apply the jurisprudence of the existing international courts (46) to determine whether there was sufficient reason to believe that crimes against humanity were being committed to justify invoking the responsibility to protect. It will then address the applicability of the responsibility to protect doctrine and discuss what the international community could and should have done in response to the Myanmar government's refusal to admit aid. Finally, assuming there was reason to believe that crimes against humanity were being committed, it will examine potential venues for any investigations and trials.

  2. WERE CRIMES AGAINST HUMANITY COMMITTED IN THE AFTERMATH OF CYCLONE...

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