WATERLOO, Canada - Their paranoia and mistrust of the outside world are such that Burma's generals have been criminally tardy in permitting emergency humanitarian supplies and personnel to come into the country. More than 100,000 may have been killed and over 2 million displaced and made homeless by the cyclone.
The rising tide of anger, outrage and frustration led French Foreign Minister Bernard Kouchner, the founder of MSF (Doctors without Borders), to suggest invoking the "responsibility to protect" (R2P) duty in the U.N. Security Council as the legal means to force open Burma's borders to outside help. Kouchner's call has generated an intense debate in policy, advocacy and media circles that is worth parsing into moral, legal, political and practical components. There is also the question of which is more damaging to R2P in the longer term: invoking or ignoring it in the context of Burma since Cyclone Nargis.
R2P was a creative and innovative reformulation of the old "humanitarian intervention" debate by a Canadian-sponsored but independent international commission. We published our report at the end of 2001. Less than four years later, it was adopted without a dissenting vote at the U.N. summit of world leaders in New York.
In paragraphs 138/139 of the summit's outcome document, the assembled prime ministers and presidents of the world agreed that every state bears the responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity.
They further declared that they "are prepared to take collective action, in timely and decisive manner, through the Security Council and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations."
Morally, there is no difference between large numbers of people being killed by soldiers firing into crowds or the government blocking the delivery of help to victims of natural disasters.
To the extent that R2P is rooted in solidarity with victims of atrocity crimes, the sophistry of the distinction between 100,000 killed by troops or through deliberate government neglect is morally repugnant.
Conceptually, the shift from the crime of mass killings by acts of commission (shooting people) and acts of omission (preventing them from getting food and medical attention) is a difference of degree rather than of type.
Legally, the four categories where R2P apply are genocide, war crimes, ethnic cleansing, and crimes against humanity.
In our original report, we had explicitly included "overwhelming natural or environmental catastrophes" resulting in significant loss of life as R2P triggers if the state was unable or unwilling to cope, or rebuffed assistance. This was dropped by 2005. But "crimes against humanity" were included, and there would be few lawyers who would dispute its foundation for covering the Burmese generals' actions in blocking outside aid when 100,000 have been killed and 2.5 million are affected.
Politically, however, we cannot ignore the significance of the exclusion of natural and environmental disasters between 2001 and 2005. Clearly, the normative consensus on this new global norm did not extend beyond the acts of commission of atrocity crimes by delinquent governments.
To attempt to reintroduce it by the back door today would strengthen suspicion of Western motivations and reinforce cynicism of Western tactics. Unlike previous decades, the new unity of the global South, led by Brazil, China, India and South Africa, is based on a position of strength not weakness. The West can no longer set or control the agenda of international policy discourse and action.
Practically, there is no humanitarian crisis so grave that it cannot be made worse by military intervention.
Unappealing as they might be, the generals are in effective control of Burma. The only way to get aid quickly to where it is most needed is with the cooperation of the authorities. If they refuse, the notion of fighting one's way through to the victims is ludicrous.
The militarily overstretched Western powers have neither the capacity nor the will to start another war in the jungles of Southeast Asia. If foreign soldiers are involved, it does not take long for a war of liberation or humanitarian assistance to morph into a war of foreign occupation in the eyes of the local populace.
It's interesting that the further away countries are from Burma geographically and the less they know about it, the more of a macho stance they seem willing to embrace.
Asians forcefully reject any Western right to set the moral compass for the West's and everyone else's behavior. It's easy for those who have no interests engaged there to accuse China and India of standing shoulder to shoulder with the butchers of Burma.
Their protests and censure would carry more moral weight if their conduct showed a consistent privileging of principles over national strategic or commercial interests in their dealings around the world. Gross double standards can no longer be hidden from Asians.
Any effort to invoke R2P formally in the Security Council would have the counterproductive effect of damaging R2P permanently across Asia, if not more widely in developing countries.
Yet because of the moral and legal considerations, it would be equally shortsighted to rule out the relevance and application of R2P should the situation not improve and people start dying in large numbers from the aftereffects of Cyclone Nargis.
Nor can we rule out laying charges of crimes against humanity against the top leaders in due course.