Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis

Abstract

On 2 and 3 May 2008, Cyclone Nargis struck Myanmar, devastating large portions of the Irawaddy Delta and creating the potential for a massive humanitarian crisis. Yet, the government of Myanmar rejected aid from some countries, limited the amount of aid entering the country to a fraction of what was needed and strictly controlled how that aid was distributed. The United Nations and many governments criticized Myanmar’s response to the cyclone as inadequate and inhumane, and senior politicians from a number of countries discussed whether the situation justified invoking the “responsibility to protect.”

This paper explores several questions, including: 1) can an inadequate response to a natural disaster constitute an ongoing crime against humanity and thus act as the trigger for the responsibility to protect?; 2) should the responsibility to protect have been invoked by the international community in response to Cyclone Nargis?; and 3) what would countries have been obligated to do if it was invoked?

In particular, assuming that the invocation of the responsibility to protect would have been based on a finding that crimes against humanity were being committed by the government of Myanmar, would the international community be obligated to investigate and potentially prosecute the underlying violations of international criminal law? If so, what venues exist for the investigation and prosecution of these potential crimes? Finally, the paper attempts to assess the successes and failures of the responsibility to protect since its acceptance by the member states of the UN at the 2005 World Summit.

Keywords: International Criminal Law, Myanmar, Responsibility to Protect, Crimes Against Humanity, Cyclone, Nargis, Natural Disaster, Individual Criminal Responsibility