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Denial of Humanitarian Aid in Myanmar a Crime under International Law?

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As the world remains shocked at the atrocities committed against civilians in the northern Rakhine state, Myanmar government has once again blocked all aid agencies from delivering vital supplies of food, water, and medicine to thousands of civilians trapped in military campaign zone.

The Guardian quoted the Office of the UN Resident Coordinator in Myanmar that “because the security situation and government field-visit restrictions rendered us unable to distribute assistance,” suggesting authorities were not providing permission to operate. Further to this United Nations High Commission for Refugees (UNHCR), the United Nations Population Fund (UNFPA), and the United Nations Children’s Fund (UNICEF), the UN World Food Programme (WFP) and sixteen major non-government aid organisations – including Oxfam and Save the Children – have also complained that the government has restricted access to the conflict area.

It is not the first time that humanitarian actors face the challenge of providing humanitarian aid to the victims. Governments, especially those who fight rebels in their territories, keep humanitarian agencies at bay doubting their independence, impartiality, and neutrality. The states also use control over humanitarian aid access as a strategy to weaken the rebel controlled territories.  These restrictive measures may consist of regulation of movement, blockades, penalization, and arrests of relief staff, and various bureaucratic strategies for restricting access, like preventing aid workers from entering the country. Restrictions on access can take any dimension like denials or delays in processing travel permits, limitations on the number of staff, and arbitrary bureaucratic limitations on the passage of relief supplies. In the present case of Myanmar also, its leader Aung San Suu Kyi’s office accused aid workers of helping “terrorists,” a claim that prompted fears for the safety of aid workers. Myanmar authorities have also denied international staff access by holding up visa approvals.

Not only the States, various rebel and militia groups have also been responsible for obstructing relief efforts. Their tactics range from harassing checkpoints to outright denials of access. In some cases, aid organizations themselves have been targeted for killing, attacks on relief convoys, looting of supplies, and even the killing of relief personnel. Irrespective of from where restrictions on access have occurred, it leads to thousands of deaths from malnutrition and disease, and as these numbers increase world over, it is a serious concern for the humanitarian world.  

These challenges have increased manifold, as most of the present day conflicts like one in Myanmar are not traditional international armed conflicts, where international law provisions offer access as a matter of right for humanitarian agencies. If international law does not give a cogent answer on the right of access to aid agencies in Rakhine State, is Myanmar Government justified in its action? 

Sanctity of Humanitarian Aid under International Law

International humanitarian law (IHL) provides legal sanctity to the work of humanitarian agencies in supporting governments for fulfilling their obligations to protect civilians when states are unable to do it. The Fourth Geneva Convention of 1949 through its articles 55 and 81, and article 70 of the Additional Protocol I to the Geneva Conventions have given the states a duty to provide humanitarian aid to the civilian population under their control. This includes non-nationals, whether free or detained and the people of occupied territories of the adverse party. Further, if states are unable to do so, they are bound to accept the offer of third parties like impartial aid agencies to provide the required support.

At the same time in cases of internal conflicts (non-international armed conflicts as well as in other internal disturbances, like in the present Myanmar’s case) International law, does not give aid agencies any unfettered rights to reach out to the civilians. Right to access in such situations are subjected to the consent of state parties and scrutiny by them under Article 70 of Additional Protocol I, Article 18 of Additional Protocol II, and Articles 23 & 59 of Geneva Convention IV. Such a liberty of states to control the movements of aid agencies inside their boundaries is primarily because in cases of conflicts of non-international nature States doesn’t want unnecessary international attention unless they decide so.

However, these restriction based upon the sovereign authority of the state is not absolute. As per the ICRC Commentaries to the Geneva Conventions, this consent requirement does not give unfettered discretion to allow or not to allow relief action. According to the Commentaries, if the humanitarian organization is impartial and neutral, then denial of relief action would amount to a violation of the rule prohibiting starvation of civilians as a method of combat. Further states have the primary responsibility to protect and ensure their basic need for survival of the civilians under Articles 55-56 of Geneva Convention IV. States are required to permit and facilitate the free passage of relief supplies and personnel and to guarantee their protection under Articles 23, 30 & 59 of Geneva Convention IV and Articles 70-71 of Additional Protocol I, and Art.18 of Additional Protocol II. There are also other international human rights documents, which provides for the right to freedom for movement for all, including for humanitarian personnel under Article 13 of Universal Declaration of Human Rights (UDHR) and Article 12 of International Covenant on Civil and Political Rights (ICCPR). Further, individual’s rights to survival and development including the right to food, medical treatment, and shelter are given under Article 25 of UDHR.

Further, if the restrictions on humanitarian access results in the deprivation of basic necessities, the attacks on relief organizations, and the destruction of sources for survival contribute to violations of various international norms especially it may constitute Grave Breaches under IHL and crimes under the International Criminal Law especially the International Criminal Court’s Rome Statute. Following are the provisions of IHL and Rome Statute, which penalize the restriction of humanitarian aid.

Grave Breaches Under IHL

Under Articles 50, 51, 130,147 respectively of the four Geneva Conventions provides for willfully causing great suffering torture or inhuman treatment as grave breaches for which the perpetrator can be prosecuted. Denial of aid to a starving civilian population during a conflict situation may amount to same.

Crimes under International Criminal Law

  1. Genocide

Genocide is an act of  ‘killing members of the group with a Intend to destroy in part or as a whole’. It is also committed by causing death by withholding aid. Denial of aid may also cause ‘serious bodily or mental harm.’ The same can also be characterized as deliberately inflicting on the group conditions of life calculated to bring about death through deprivation of food and medical supplies.  [The Rome Statute Art. 6 and the interpretation of Art.6(a) in Elements of Crime]

  1. b) Crime Against Humanity
  • Murder can be interchangeable with caused death due to the deprivation of access to food and medicines as per the interpretation of Elements of Crime. (The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Extermination can include ‘mass killing by inflicting conditions of life calculated to bring about the destruction of part of a population, both direct and indirect including one caused by the deprivation of access to food and medicines [The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Torture- intentional infliction of severe pain and suffering, whether physical or mental, in custody or under the control of the accused. This can be applied in situations where the aid and support are denied to a group who is under the party’s control. [The Rome Statute Art. 7 (2)(e)].
  • Persecution – is defined as ‘intentional and severe deprivation of fundamental rights which includes deprivation of access to food, water, medicine and other elements of survival [The Rome Statute Art. 7 (2)(g) and Art. 23 GC IV, Arts. 5-6 ICCPR]
  • Other Inhuman Acts- ‘intentionally causing great suffering, or serious injury to body or to the mental health. This can be applied in situations where the aid and support is denied to a group who is under the party’s control. [The Rome Statute Art. 7 (1)(k)].
  1. C) War Crimes-

During international armed conflicts

 Intentionally starving of civilians during international armed conflict (IAC) as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies. [The Rome Statute Art. 8 (2)(b)(xxv)].

  • During IAC Willful killing [The Rome Statute and Elements of Crime Art. 8 (2)(a)(i)] and Torture and inhuman treatment (IAC)- [The Rome Statute and Elements of Crime Art. 8 (2)(a)(ii)-1(i)] and

During non- international armed conflicts

  • Violence to life and person – [The Rome Statute and Elements of Crime Art. 8 (2)(c)(i)]
  • Intentionally directing attacks – against buildings, materials, medical units and transport, and personnel using the distinctive emblems. [The Rome Statute and Elements of Crime Art. 8 (2)(e)(i)]
  • Intentionally directing attacks – against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peace keeping missions under UN Charter. [The Rome Statute and Art. 8 (2)(e)(ii)-(iii)]
  • Pillaging a town or place – destroying or seizing the property of an adversary unless such destruction or seizure is demanded by military necessity, which includes food sources and supplies. [The Rome Statute and Art. 8 (2)(e)(xii)]

Conclusion

Hence actions including the present Myanmar governments decision to block aid in the conflict affected areas in Myanmar could amount to violations which would attract penal action under the International law. Given the nature of attack and atrocities happening against an ethnic group, the chances of the commission of a crime of genocide weigh more in the present case, with individual counts of murder, extermination, and persecution. It is high time that other major nations to intervene and re-establish humanitarian aid in the affected area and further limit such atrocities being committed.

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International Law

Time for a Consolidated Russian-Chinese Approach to Modernize and Reform UN

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When it comes to reforms of the United Nations, it is indispensable for China and Russia, as long-time UN champions and supporters, to take the lead in promoting bottom-up approach to UN reforms. Moscow and Beijing have already accumulated a lot of experience in working together in drafting UN Security Council (UNSC) resolutions, in setting agendas for UN General Assemblies and in interacting with various groups of UN member states.

When some talk about how to make the UN more efficient and more relevant in global politics, they usually focus on reforming the UNSC. There is no shortage of ideas and even detailed plans of how to expand the composition of UNSC and how to modify the veto power rules within the body.

It is hard to argue against the need to introduce changes to the UNSC’s current mode of operations. And, the Council demonstrates difficulties to jointly approach some of the most devastating and dangerous conflicts faced by the world—be it in Africa, in the Middle East, in South Asia, in Latin American and in Europe and elsewhere.

However, the current international environment does not appear conducive to launching any far-reaching UNSC reforms today or tomorrow. An enlargement of UNSC would make the difficult task of reaching consensus in the United Nations Conference Building in New York City even more challenging; new permanent members would come with their own agendas, priorities and—alas!—with their prejudices and biases. The idea of a veto power abolition would undoubtedly meet fierce resistance from the P5 permanent group members.

Does this mean that one should put all the plans to enhance the United Nations on the back-burner? Not at all.

Contemplating an enhanced UN, one has to keep in mind that the United Nations is much bigger than its Security Council, all the importance of UNSC notwithstanding. Under the contemporary unfavorable circumstances, a bottom-up approach to the UN reforms might turn out to be more practical and more productive than a top-down approach. The United Nations is a graphic illustration of how the 20th century modernist institutional culture confronts the 21st century post-modernist international realities. The needed adjustment is huge, even without touching the Security Council for the time being.

There is an urgent need to provide for more targeted coordination among numerous UN agencies, in particular—to overcome the existing gap between the UN security agenda and its development agenda.

There is a clear necessity to produce a new set of KPIs for the vast UN bureaucracy, which is quite often too much focused on formal report writing. One should think about how the United Nations could make more use of the global civil society and independent expert knowledge. The United Nations should modernize and upgrade its peace-keeping capacity in view of the changing nature of modern conflicts and to move from mostly reactive to proactive approaches to conflicts. UN has to address in a more energetic and systematic ways pending problems of red-tape, bureaucratic duplication, excessive administrative costs and so on.

Some of these and many other institutional challenges confronting the UN have been articulated many times by critics of the organization. Sometimes, the latter used this criticism to cast doubts in the relevance of the United Nations in the 21st century.

The time has come to take a consolidated Russian-Chinese approach to modernizing the UN institutional culture and performance. It goes without saying that this work should not look as an exclusive undertaking of the two permanent members of UNSC, but should rather include as many other member states as possible.

Once this process is launched and gains momentum, it will be much easier to address more divisive issues—reforming the Secretariat, empowering the General Assembly and addressing the most difficult and controversial matter of the UN Security Council composition and the rights of its permanent members. By the time we get to this point, the accumulated track record of working together on less controversial matters should make it possible to find an appropriate arrangement for the Security Council as well.

From our partner RIAC

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International Law

Support the UN’s leadership position and multilateralism

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Despite its inability to fully satisfy people’s expectations on some issues, the United Nations and its agencies, as well as other multilateral organizations, have made significant efforts to promote peace and development across the globe during the past 70 years. However, the UN is confronted with enormous problems in a fast-changing globe and a complicated international environment.

First, some countries have attempted to undermine the basic norms governing international relations by forming cliques, practicing pseudo-multilateralism, provoking ideological confrontation, and attempting to suppress other countries through sanctions, all while ignoring the UN Charter’s purposes and principles.

They have used a double standard at UN meetings and debates in order to impose their own values and rules on other countries while claiming that they are universal values and rules. They have frequently sought the moral high ground and lectured, criticized, or attacked other countries, as well as openly interfering in their internal affairs. They regard the United Nations as a private club that exists to serve their national interests, and they utilize it when it suits them and ignore it when it does not. These heinous crimes have severely harmed UN member states’ mutual trust and collaboration, as well as the global body’s power and ability to control the globe.

Second, the COVID-19 pandemic continues to represent a major threat to people’s lives, health, and economic activity worldwide. More than 240 million individuals have been infected and 4.89 million people have died as a result of the new coronavirus.

COVAX was created by the World Health Organization, a specialized UN agency, to ensure equitable distribution of COVID-19 vaccines around the world. However, the global “vaccination gap” remains large, vaccine distribution is inequitable, and vaccine shortages in many developing and least-developed countries remain unaddressed. In addition, the virus’s constant evolution has posed significant obstacles for governments’ preventive and control efforts. Sadly, some governments have attempted to delegate their obligations to others, jeopardizing the global fight against the epidemic.

Third, the epidemic has wreaked havoc on the global economy, particularly in underdeveloped countries, resulting in increased unemployment, lower earnings, and poverty. Furthermore, the pandemic’s effects, as well as human factors, have rendered global industrial and supply systems vulnerable and unstable.

Part countries have created large amounts of currency notes in attempt to address their economic challenges, hence passing some of their economic issues to other countries. Some nations have urgently sought to divorce their scientific and technology sectors from those of other countries, obstructing global science and technology progress. As a result, many nations may be unable to reach the goals set forth in the United Nations’ 2030 Agenda for Sustainable Development, which is aimed at solving development issues.

Fourth, as a result of climate change, extreme weather events have grown more common and devastating. Extreme weather events may become more common and cause greater damage if global temperatures continue to rise as a result of increased greenhouse gas emissions. And if countries do not cut their use of fossil fuels quickly enough to keep global warming below 1.5 or 2 degrees Celsius, the world may suffer catastrophic repercussions.

Finally, the UN’s role has diminished as a result of the aforementioned issues, as well as overstaffing, low efficiency, sluggish action, and poor execution. Humankind is confronted with a plethora of new difficulties in today’s fast-changing world, and it is becoming increasingly difficult for the UN to adapt and/or handle these issues.

It’s no wonder, therefore, that UN Secretary-General Antonio Guterres stated during the UN General Assembly’s 76th Session that mankind will be in grave danger if “effective multilateralism” is not practiced, and that the world needs a “UN 2.0” to recreate the ideals on which it was built. In order to face these difficulties, the international community must sustain a UN-centered world order based on international law and norms that regulate international relations.

All countries should respect and treat one another as equals, and those states who prioritize their own interests over global ones and impose penalties on other countries should be opposed. In addition, the international community should work together to minimize inter-country disputes, ensuring that all nations select the political system and development path that best suits their national circumstances, and appreciate diversity.

Moreover, all UN member states should uphold their commitments under the UN Charter and assist the UN in its efforts to solve emerging global concerns. For the interest of all member states, the UN should increase its capacity building, deepen reform, enhance efficiency, and protect justice.

In order to prevent the pandemic, the international community must take steps to reduce the danger of cross-border infections and guarantee that vaccinations are distributed fairly across the world so that developing and least-developed countries can vaccinate their people.

Furthermore, all countries should refrain from using economic and financial policies and tools to benefit themselves at the expense of others, maintain the stability of global industrial and supply chains, eliminate all forms of protectionism, and promote regional trade and investment liberalization to help the world economy recover.

They should also set concrete goals for peaking carbon emissions and attaining carbon neutrality in accordance with the principle of shared but differentiated responsibilities, as well as pursue a green and low-carbon development path, to combat climate change.

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International Law

Debunking the Sovereignty: From Foucault to Agamben

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“Citing the end of Volume I of The History of Sexuality, Agamben notes that for Foucault, the “threshold of modernity” is reached when politics becomes bio-politics—when power exercises control not simply over the bodies of living beings, but, in fact, regulates, monitors, and manufactures the life and life processes of those living beings.” For Agamben, the term politics in the western context is effectively a politics of Sovereignty and consequently, for Agamben, Sovereignty itself is inherently bio-political.

In the latter context, the term bio-politics is not modern rather it is ancient. Here, Agamben comes in disagreement with Hannah Arendt and Michel Foucault. Perhaps, this is why, Agamben dedicated his widely cited work “Homo Sacer” to reconcile the bio-political theory of Hannah Arendt and Michel Foucault to grasp the decisive moment of the Modernity. In order to reconcile the bio-political theory of Hannah Arendt and Michel Foucault, Agamben uses the concept of “Bare Life” or “Sacred Life“.

According to Agamben, Michel Foucault has overlooked the writings of Hannah Arendt, and hence, the gap should be filled. To illustrates his understanding of the modern bio-politics, Agamben imagines the “the concentration camp and the structure of the great totalitarian state of the twentieth century. For Agamben, in the modern times every political space has become a camp that is why he has used the term concentration camp instead of the city state.

Hence, for Agamben, the camp is a place where law is nothing and the existence of beings is reduced to a bare life. Moreover, a camp is place where the sovereign decision acts without any consequence and thus the existence of every man is reduced to a bare life. Thus in his famous work, Agamben aspires the return of the sovereign by rejecting the Foucaultian Methodology. Although both Foucault and Agamben are against the concept of totalitarianism but the only divergence exists in their methodology. But according to several scholars, on one side Agamben is against the concept of totalitarianism but on the other hand he attempts to resurrect it by nullifying his initial argument.

In the latter context, there is a huge difference between Agamben and Foucault when it comes to the question of bio-politics, law, sovereignty, life and law. Hence, the divergence can be understood from the context of ontology, epistemology, metaphysics, politics, methodology and normativity. For instance, unlike Foucault, in his famous work “Homo Sacer” Agamben defines the concept of sovereignty from the Schmittian Standpoint, that is a sovereign means;” he who decides on the exception”. This is why, various experts deemed Agamben as the radical, who is trying to resurrect politics as opposed to Sovereignty.

On the contrary, just like Foucault, Agamben consider the concept of the bare life as the nucleus of the sovereign power. However, on the other hand, Agamben embraces the argument of Carl Schmitt that the concept of “Exception” lies at the heart of the Sovereign Power or Sovereignty.

Hence, when it comes to the Sovereignty and Bare life, it is the inclusion of zoe within the bios only by the means of Zoe’s exclusion. Here Zoe means (Bare Life) while Bios means (Political Life). Moreover, in Agamben’s definition of ‘Sovereignty’ does surrounds institutions rather it defines the abstract and exceptional relationship between the Zoe and Bios. Hence, basically, it is through this particular exceptional and abstract relationship, Agamben attempts to define the context and prevailing dynamics of the Western Politics. In contrast, Agamben defines the context of Sovereignty within the standpoint of the exception, perhaps, here the “exception” resembles the return of “The Sacred” in the Roman law. No doubt, it is a clear fact that “the sacred” in the Roman law serves as a kind of bridge between Aristotle and Modernity.

In the latter Context, it can be said that for Agameben the term sovereignty is not just a social or political phenomenon rather a trans-historical Phenomenon. On the contrary, for Michel Foucault, the term sovereignty is a recent phenomenon, whose origin can be traced to the power of the feudal monarchy during the middle Ages. Nonetheless, the fact should be kept in mind that whether it was in the ancient times or modern day, Sovereignty has played a key role in underlying the Social Contract. 

According to the Foucaultian definition, the theory of Sovereignty relies on the subject, whose sole power is to establish the unity of power. More precisely, in the Foucaultian context, the theory of the Sovereignty assumes three ancient elements: First, a subject who must be subjectified, the unity of power must be established, and the legitimacy, that must be respected by all (Subject, unitary power, and the law).

Basically, the latter three elements clearly explains the dynamics of the feudal power during the Middle Ages. Moreover, from the Foucaultian standpoint the concept of discipline and bio-power are essential concepts surrounding term “Sovereignty”.

Another difference between Foucault and Agamben was that Agamben equates the concept of Sovereignty with the state, whereas, Agamben laments the erosion of the modern day State-Sovereignty equivalence. Nonetheless, the fact cannot be denied that Foucault failed to use the historical Schema in order to understand the meaning of sovereignty first from the standpoint of discipline up to the level of the security and the bio-power. For Foucault, discipline within the context of sovereignty only exists in the ancient world, however, in the modern times, it has been replaced by the concept of bio-power and the security. Hence, for Foucault, in the ancient times, the Penopticon can be seen as a great dream of the Sovereignty.

On the other hand, the fact cannot be denied that in the modern times, the concept of sovereignty has entered into the innate symbiosis with various professions ranges from jurists, doctors, scientists, scholars and even priests. It was the famous German Jurist Carl Schmitt, who first grasped the definition of sovereign exception, which is nothing less than the limit concept of the doctrine of the state and the law. Hence, the fact cannot be denied that here the concept of state and sovereignty resembles each other.

Hence, if we put the Agamben’s and Foucaultian definition of sovereignty into context then it becomes clear that the concept of sovereignty in Agamben’s perspective is not united rather it is more historical and continuous. More precisely, in Agamben’s perspective the concept of sovereignty is historical, which can be stretched from the time of Aristotle to the Modern day.

Similarly, for Agamben, the subject of the sovereign power, which is the result of the division of Zoe/bios, have been polluted or corrupted over the course of the centuries. Moreover, during this particular course, the domain of the Zoe was extended to a significant level, whereas, the domain of the bios was diminished by unfolding its actual perspective. As a matter of fact, throughout his writings, Agamben subscribes to the juridico-discursive concept of power, which for Foucault was insufficient for understanding the very concept of the modern bio-politics. In contrast to the above, the fact cannot be denied that through his major contributions, Michel Foucault attempted to project the “entire western reflection on Power“.

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