Failure to Address Humanitarian Intervention
Following Myanmar’s cyclone in May 2008, some experts say the spirit of the R2P doctrine, if not its letter, was tested. The country’s regime was incapable of providing relief to millions of affected citizens and it refused to let in international aid and aid workers for several days. The French Foreign Minister suggested the United Nations invoke the R2P doctrine as the basis for a resolution to allow the delivery of international aid even without the junta’s permission.
The current issue of Myanmar is a natural disaster” and the situation should not be politicized.
The current issue of Myanmar is a natural disaster” and the situation should not be politicized. Experts warned that Southeast Asian nations and India might also take exception to intervention in Myanmar. In identifying one possible case for the application of military force, the 2001 R2P report had included “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” But one of the original R2P commissioners says politically, “we cannot ignore the significance of the exclusion of natural and environmental disasters between 2001 and 2005.” To attempt to reintroduce it today, he writes, “Would strengthen suspicion of western motivations and reinforce cynicism of western tactics.” National sovereignty as sacred has gained ground after the U.S. invasion of Iraq and despite recent efforts to enshrine the doctrine of a ‘responsibility to protect’ in international law, the concept of humanitarian intervention has lost momentum.”
Proponents of the doctrine say another way to raise pressure for action in Myanmar is to focus on rebuilding the country. Those who helped write the 2001 report emphasized that R2P embraced not just the “responsibility to react” but the “responsibility to prevent” and the “responsibility to rebuild” as well. The 2005 UN document also emphasized prevention. It noted: “We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations . . . and to assisting those which are under stress before crises and conflicts break out.”
International Humanitarian Law
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. It is accepted that it applies to nuclear weapons to the same extent that it applies to conventional weapons.
New technologies can lead to better protection for civilians and civilian infrastructure, for instance by making it possible to take greater precaution or to use greater precision in attack.
Two specific principles of IHL are of particular relevance:
- The prohibition on the use of indiscriminate weapons;
- The prohibition on the use of weapons which cause unnecessary Suffering or superfluous injury.
The first principle is part of the general rule that a party to an armed conflict must always seek to distinguish between the civilian population and combatants. A weapon which is incapable of drawing such a distinction is unlawful under IHL. The harmful effects of the radiation from nuclear explosions are well-documented, as is the impossibility to control them. In particular, radiation can be carried into the stratosphere and be deposited over a much greater, and unpredictable, area than that affected by the initial explosion.
The second principle is part of the general rule that a party is only entitled to use that force which is required to achieve a legitimate military objective. A weapon which is bound to uselessly aggravate the suffering of combatants is unlawful under IHL. The particularly painful, and often protracted, consequences of exposure to the high levels of radiation generated in nuclear explosion are, again, well-documented. Given these principles and the uncontrollable and destructive power of nuclear weapons, it is difficult to envisage any circumstances in which nuclear weapons of the type currently held by the United Kingdom could be used in a way that is compatible with IHL Cyber technology, remote-controlled weapon systems and robotic weapon systems are some of the new weapon technologies. New technologies can lead to better protection for civilians and civilian infrastructure, for instance by making it possible to take greater precaution or to use greater precision in attack. But they also bear risks. Ultimately, their compliance with international humanitarian law will depend mostly on the concrete use that is made of them, for which the parties to conflicts and individuals deploying them are responsible.
There is little doubt that these new technologies, like new technologies before them, are changing the landscape of war and just as air warfare had to comply with the existing framework of international humanitarian law when it was introduced in the 20th century, so too must the new technologies of the 21st century comply with fundamental rules governing the means and methods of warfare.
History has shown that the laws of war are traditionally more strictly applied to those defeated, as the victorious faction is placed in the role of policing themselves.
Remedies for violations
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal. Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war, but only after facing a “competent tribunal”. At that point they become an unlawful combatant but they must still be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial. Spies and terrorists may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. However, nations that have signed the UN Convention against Torture have committed themselves not to use torture on anyone for any reason.
Citizens and soldiers of nations which have not signed the Fourth Geneva Convention are also not protected by it, whether they are spies or terrorists. Also, citizens and soldiers of nations which have not signed and do not abide by the Third and Fourth Geneva Conventions are not protected by them. The High Contracting Parties shall furthermore be bound by the Convention in relation to a Power which is not a contracting party, if the latter accepts and applies the provisions thereof. If someone is (or is suspected to be) a citizen or soldier of a nation which has signed or abides by the Fourth Geneva Convention , or is or is suspected to be a “prisoner of war” (POW) per the definitions of such “protected persons” in the Third Geneva Convention the following applies: A POW who breaks specific provisions of the laws of war may be penalized, but not penalized worse than the tribunal would penalize its own soldiers for the same offense (and usually a disciplinary, not judicial, punishment if its own soldiers normally wouldn’t be brought to trial for a particular offense) and POW’s may not be penalized based on rank or gender, nor with corporal punishment, collective punishments for individual acts, lack of daylight, or torture/cruelty .
After a conflict has ended, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through process of law. Also, nations which signed the Geneva Conventions are required to search for, then try and punish, anyone who has committed or ordered certain “grave breaches” of the laws of war. History has shown that the laws of war are traditionally more strictly applied to those defeated, as the victorious faction is placed in the role of policing themselves. While it can be argued that the victors may be less strict on their own forces, it can also be argued that the signing of the treaties involved in the laws of war implies a good-faith promise to adhere to them equally.
This opens the door not only to hold private security contractors liable, but also other kinds of corporations which employ violent mercenary or terrorist groups as private security forces.
As with many facets of war, the aftermath and subsequent legal proceedings depend heavily on circumstance, and are different for each conflict. There is an emerging trend in the US to hold private corporations civilly liable for aiding and abetting in war crimes, by knowingly providing substantial assistance in the commission of the crimes. Under international law, the main element is knowledge, not intent that the crimes be carried out. This opens the door not only to hold private security contractors liable, but also other kinds of corporations which employ violent mercenary or terrorist groups as private security forces. Although conflict zones often lack functioning legal systems, and government may even have passed laws immunizing private mercenaries from criminal liability, aiding and abetting a war crime can still be the basis for civil liability in a foreign court with jurisdiction over the defendant corporation.
Other than this a lot of scholars also argue whether threat or use of force of economic nature or nuclear nature is also a violation of Article 2(4) of the UN Charter.