When natural disasters hit countries that are ruled by authoritarian regimes, the system of humanitarian help is also hit by an inherent contradiction: must we force a country into accepting both help and foreigners on its territory? The question which humanitarian law is struggling to find a clear answer to is related to national sovereignty, standing in the way of protection of victims. This important issue is brought into focus these days because of the refusal of the Burmese (Myanmarese) authorities to accept any foreign humanitarian aid despite the magnitude of losses the country has seen.
Although the UN resolution of 1988 recognises that the interference of Non-Governmental Organisations (NGOs) in situations of natural disasters is necessary to help save lives, it does not allow them to impose it on countries that would refuse this help. It is only in situations of conflict that humanitarian law would recognise NGOs' right to interfere in some countries to save victims, without the government's consent, and this is not the case with Burma (Myanmar). On the contrary, the UN resolution 62/92, passed on February 1, 2008, and which deals with natural disasters, emphasises the fact that the responsibility of organising, coordinating, and carrying out humanitarian aid activities rests upon the disaster-stricken country. The latter may accept assistance from other countries; still, nothing obliges it to receive foreign rescue teams or assign to them the task of organising rescues.
This kind of refusal, together with the dilemma of entrusting the international aid to a dictatorial government, makes some people refer to the possibility of imposing aid, on the basis of the international concept of the 'responsibility to protect', adopted by the UN in 2005. This concept may be applied in situations where genocide, crimes against humanity, or war crimes... take place. This obviously implies that the UN can impose its resolutions to make use of its power against, not only countries which present threats to international peace, but also those where genocide and mass killing take place. However, this idea remains only a solution, which heavily depends on the consent of the five permanent members of the Security Council. Thus we cannot really speak about a law for the populations.
Furthermore, this concept does not cover natural disasters. A legal debate imposes itself if we want to find out whether deliberately refusing humanitarian assistance to a population can be considered as a crime against humanity. This would hopefully lead us to restart the debate on the issue of the 'responsibility to protect', and possible sanctions to be imposed by the International Criminal Court. Although this debate may be founded on the ethical values of emergency, it does not seem to be relevant at the legal and diplomatic levels, insofar that its tangible results cannot be achieved in emergency situations.
Myanmar has not ratified the status of the International Criminal Court (ICC), which means that the Security Council is the only body entitled to make appeal to ICC, assuming the agreement of all its members. Moreover the violence that may be caused cannot be concealed by the principle of the 'responsibility to protect', since we are faced with a problem of imposing military presence on a country which is opposed to it. We are thus obliged to make use of all the necessary military and political means and should be ready to take on the consequences of such a situation, while being able to anticipate deadlines and the real impact on the disaster victims. Above all, it should be clear that this principle is void of any legal and practical effectiveness, as long as it is not accepted by the Security Council, and this is exactly what happened in the case of Myanmar.
The dilemma we are exposed to in this case is worth considering. Since it is out of question to impose authority, it is not reasonable to continue to threaten a country in the name of effectiveness and emergency. However, we must take immediate action to organise and put together our legal qualifications of negotiation, persuasion, and pressure, based on the indignation this issue has aroused amongst not only European countries but also many Asian nations. Equally important is the fact that we have to make use of, and reinforce, what has always been known as the major force of humanitarian action; that is, its apolitical aspect. In other words, there should be a way to convince the Myanmarese generals that humanitarian aid will not jeopardise their regime.
The problem in Myanmar is related to help coming from Western countries because the authoritarian government has willingly accepted help from Asian countries. Indeed, the opening up on Asian countries marks a turning point in humanitarian action. This is also the case in the earthquake-stricken China, which accepts help but not foreign rescuers. It is good to hear that some Asian countries have the means and are willing to develop aid methods, while showing empathy and compassion, which are not limited to Westerners. Humanitarian interference, however, can be seen as a form of violence exercised on a country's leadership, since it may lead to aggressive acts with bad consequences, such as those that occurred in Iraq and Somalia. Military interventions of this kind arouse more fear as natural disasters related to climate change are predictably increasing. Humanitarian action is expanding in the world. Western diplomacies are thus required to think about the best way to get involved while preserving solidarity and humanity values.
Francoise Bouchet-Saulnier is an expert in the field of humanitarian law and the legal counsel for Medecins Sans Frontieres in Paris. She is also the author of the 'Practical Guide to Humanitarian Law'.