Opinio Juris

The first part of this post's title is also the title of a new article at Time.com. (Note: on CNN.com, they title the article "Time to Invade Myanmar?")

And so begins the latest iteration of the humanitarian intervention debate. After a recap of the situation in Myanmar, the article notes:

...it's hard to imagine a regime this insular and paranoid accepting robust aid from the US military, let alone agreeing to the presence of US Marines on Burmese soil — as Thailand and Indonesia did after the tsunami. The trouble is that the Burmese haven't shown the ability or willingness to deploy the kind of assets needed to deal with a calamity of this scale — and the longer Burma resists offers of help, the more likely it is that the disaster will devolve beyond anyone's control. "We're in 2008, not 1908," says Jan Egeland, the former U.N. emergency relief coordinator. "A lot is at stake here. If we let them get away with murder we may set a very dangerous precedent."

That's why it's time to consider a more serious option: invading Burma. Some observers, including former USAID director Andrew Natsios, have called on the US to unilaterally begin air drops to the Burmese people regardless of what the junta says. The Bush Administration has so far rejected the idea — "I can't imagine us going in without the permission of the Myanmar government," Defense Secretary Robert Gates said Thursday — but it's not without precedent: as Natsios pointed out to the Wall Street Journal, the US has facilitated the delivery of humanitarian aid without the host government's consent in places like Bosnia and Sudan.

The article concludes that, if current attempts at assistance fail,

"It's important for the rulers to know the world has other options," [Jan Egeland, a former UN emergency reloief coordinator] says. "If there were, say, the threat of a cholera epidemic that could claim hundreds of thousands of lives and the government was incapable of preventing it, then maybe yes — you would intervene unilaterally." But by then, it could be too late. The cold truth is that states rarely undertake military action unless their national interests are at stake; and the world has yet to reach a consensus about when, and under what circumstances, coercive interventions in the name of averting humanitarian disasters are permissible. As the response to the 2004 tsunami proved, the world's capacity for mercy is limitless. But we still haven't figured out when to give war a chance.

I am of two minds when it comes to humanitarian intervention. Cases such as Myanmar may be the less difficult cases--situations where there is a threat of widepread disease or famine (let alone the physical injuries and other forms of suffering caused by the storm) and a government is either incapable or uninterested in actually doing what needs to happen to save its own citizens. I'm not saying that that is an easy case for humanitarian intervention, just that it is not as hard as other examples that are more politically ambiguous, such as intervening because of civil strife or sectarian violence.

Turning such a political decision into a legal rule is fraught with dangers. What do we do if the Russian intervene militarily in Georgia, on the pretext that they are protecting Russian passport holders? What of Turkey's intervention in Northern Cyprus in the 1970's on the argument that it was protecting Turkish Cypriots from violence? As I've written regarding Kosovo, the law of unintended consequences is a mighty force to reckon with.

The people of Myanmar desperately need help and they need it now. Perhaps intervening without the consent of their government will be the necessary and moral thing to do. I don't know enough about the facts on the ground to judge that. But, even if various states do undertake such an action, they should think very carefully about proclaiming the existence of a legal principle favoring humanitarian intervention.