European leaders have accused Burma (Myanmar) of a crime against humanity for its stubborn response to cyclone aid relief, in a tactic to pressure the regime and save lives.
While also using "soft power" diplomacy to pry open channels to the leadership and persuade the generals to relent, ministers from France to Finland have been brandishing the strongest possible language – which comes with subtle legal undertones.
A "crime against humanity" is one of four scenarios which, under a 2005 United Nations doctrine, can trigger forcible international humanitarian action. Strictly speaking, it only applies to cases of war. But if the UN agreed that such a crime was being perpetrated, the case for UN-backed intervention would become compelling.
In practice, both sides know this is a last resort, but the Europeans are brandishing the threat to coerce the regime into action.
The tactic may be working. The military junta ruling Burma has softened its stance somewhat in recent days, agreeing to more humanitarian help from regional powers – and to a visit by UN chief Ban Ki Moon, who is expected to arrive in the country Thursday.
But they are still balking at the kind of large-scale foreign intervention that Europe and the US want to see across the Irrawaddy Delta, where aid groups fear more than 130,000 have died since the May 3 cyclone. The generals say the rescue effort is over and now it's time for reconstruction. The UN by contrast says 1.4 million people still need urgent help.
"All different forms of pressure have been voiced in the last days and weeks," says John Clancy, spokesman for European Union (EU) humanitarian aid commissioner Louis Michel, who visited Rangoon last week. "If all of this pressure manages to open up [the country] even a little bit and allow in aid to save lives, then it will be important."
If Europe is adopting a good-cop, bad-cop approach, then Mr. Michel was the good cop. His visit – during which he reassured the junta there was no political subplot at play – paved the way for visits by the UN's top humanitarian aid official, John Holmes, the British minister Mark Malloch-Brown and now Mr. Ban.
Ban will meet the junta head Gen. Than Shwe, tour the stricken delta area, and return to Rangoon on Sunday to co-chair an aid-pledging conference.
But back in Europe, key figures are playing bad cop. France's foreign minister, Bernard Kouchner, was the first to invoke a "crime against humanity" and said failure to act by the UN Security Council would be "cowardice."
Gordon Brown, the British prime minister, characterized the regime's response as "inhuman." Ministers from Spain and Finland also resorted to the "crime against humanity" label. And EU foreign policy chief Javier Solana said the UN charter "opens up some avenues" to get aid in "if things cannot be resolved."
A European diplomat based at the Security Council in New York says: "We haven't ruled anything out and will consider all options. Our focus isn't on the labels we attach but on getting aid in. We think the Security Council can lend its voice to political pressure on the government to improve access."
Tying Burma's response to a crime against humanity has legal implications: A 2005 UN doctrine committed the international community to a "responsibility to protect" (R2P) doctrine. It would have to intervene "should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."
Technically, the legal principle only applies in cases of war. But Donald Steinberg, vice president of the International Crisis Group, says that in Burma's case it could apply because "a government that sees a situation where tens or hundreds of thousands are likely to die because of inability to provide relief and says no to international humanitarian aid is itself committing a crime against humanity."
Gareth Price, head of the Asia program at the Chatham House think tank in London, adds that "it's not clear whether [R2P] applies to a natural disaster. The assumption has to be it applies whenever it would work, but where do you draw the line?"
Yet two major problems face those who want to trigger R2P. First, they would need approval in the Security Council – where efforts to even discuss Burma have foundered on the objections of China and Russia, who insist that sovereignty takes precedence over humanitarian concerns. Second, even if the UN were to approve a forcible humanitarian mission (which it has done with mixed results in the past in Bosnia, Somalia, and Iraqi Kurdistan), it would face hostility in carrying out its mission.
"If you intervene militarily against the wishes of a host government – and one that has hundreds of thousands of troops under arms – it is virtually impossible to set up the kind of distribution systems, transport systems, medical support in order to save massive amounts of lives," says Mr. Steinberg.
Sean Keogh, an aid worker who just returned from a week in Burma, says airdrops must be a last resort. "If you airdrop without staff on the ground it means the most vulnerable people will get missed. It can cause conflict and tension in communities," he says.
But if the Europeans aren't holding a strong hand, neither is the junta. "They somehow believe the biggest threat is the entry of all these foreign relief experts, " says Steinberg. "The biggest threat is that they screw this up so badly that tens of thousands more die and the people of Burma rise up and say enough is enough."