Joschka Fischer discusses implications for international law of the current humanitarian crisis in Burma/Myanmar in his column this week,
Unterlassene Hilfeleistung Die Zeit 06.05.2008. (All translations here are mine.)
The paranoid military dictatorship in Burma is afraid that opening their country to international aid will endanger their hold on power.
But despite the fact that the "situation in Burma cries to heaven" for "an intervention by the international community", the United Nations cannot intervene without the agreement of Burma's military government. "National sovereignty is not only a legal concept but also corresponds with the real power relations," Fischer writes.
In situations like Rwanda where the government undertakes genocide against a portion of its people, or in the Balkans where government drive ethnic cleansing, within existing international law a "responsibility to protect" can be invoked, he explains. The UN Security Council can authorize under Chapter VII of the UN Charter an intervention by the UN itself or by a group of member states. This "responsibility to protect", he continues, is founded on a General Assembly decision of 2000 and Security Council Resolution #1674 of 2006. "Thereby the relationship in international law between state sovereignty and the individual citizen was decisively shifted to the benefit of the latter."
Fischer observes that while this represents great progress in international law in principle, translating it into practice still means finding countries who are willing to take part in the intervention. He doesn't say so in this column, but a UN-authorized intervention into a civil war situation by outside forces will encounter the same problems individual countries encounter when doing so. Intervening on a urgent basis to stop genocide in practice is unlikely to be simply a weeks-long mission. Once an outside power intervenes, with UN sanction or not, it is likely to find itself teaming up with militias and getting pulled into the very messy business of trying to build a functional government where this is none, or a very weak one. Ethiopia's intervention in Somalia is a current case in point (although that intervention started a US-backed "regime change" effort, not a response to genocide).
In the case of Burma, even the "responsibility to protect" doesn't apply, Fischer observes, because it is authorized in cases of genocide, ethnic cleansing and crimes against humanity, not in a case of a government refusing humanitarian aid on its own territory.
Fischer hits on a key problem with expanding this concept in international law even further. "Would in the end even a new 'Regime Change Doctrine' emerge from that process, which invites political misuse?", he asks. He diplomatically refrains from speculating what rogue superpower or other potential abusers of the concept he may have in mind.
Fischer uses this case to raise a caution about the limits of power for countries intervening in the affairs of other countries, even if the intentions are genuinely good. And when has any intervention ever been so pure? As he puts it, "One can certainly not start wars to restrain or end a government's interference with the provision of aid, because the foreseeable harms stand in no relationship to the humanitarian benefits." This is basic Just War Doctrine. The benefits must have a reasonable chance of being greater than the harm to justify war. As the horror the Cheney-Bush administration has created in Iraq shows, the harms can be very great.
Fischer argues that it was nevertheless helpful that France supported a Security Council resolution to take measures to get through additional humanitarian aid to Burma, even though it was certain to be vetoed by Burma's ally China. He believes that international law should define a framework for dealing with such situations, keeping in mind the very real practical difficulties.
At the very least, he says, miscreant regimes should be shamed before the world for such misconduct as that in which the Burmese junta has engaged. But he also disagrees with the "Realist" foreign policy perspectives that simply dismisses any notion of humanitarian intervention as "impractical idealism". As he puts it, the Realists are caught in a three-way triangle of sovereignty, power, and balance of power. And that perspective, he says, is insufficient for the real situation of the 21st century.
On the other hand, he emphasizes that the implementation of such new principles as he discusses also has to take hard realities into account. They can't be undertaken carelessly, recklessly or in the pretence that only the best-case scenarios will occur. (See Cheney-Bush administration, Iraq War.) He concludes:
Seit dem Ende des Kalten Kriegs vollziehen sich in der internationalen Politik und im Völkerrecht Entwicklungen, die den neuen Realitäten der Globalisierung zu entsprechen versuchen. Dazu gehören die Grundsätze der humanitären Intervention und der Verpflichtung zu schützen. Ihre Praktikabilität wird Zeit brauchen, aber das galt auch für alle vergleichbaren Entwicklungen zuvor, an deren Gültigkeit wir uns heute wie selbstverständlich gewöhnt haben. Es besteht daher kein Grund, die Flinte ins Korn zu werfen.
[Since the end of the Cold War, developments have taken place in international politics and international law which correspond to the realities of globalization. Among them are the basic concepts of humanitarian intervention and the responsibility to protect. Their practicality will need time, but that was also true for prior comparable development and whose validity we have become accustomed to viewing as self-evident. Therefore there's no reason to throw out the baby with the bathwater.]
Tags:
burma,
internaional law,
joschka fischer,
myanmar
