[Senate Hearing 110-650]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-650
 
           INTERNATIONAL DISASTER ASSISTANCE: POLICY OPTIONS 

=======================================================================

                                HEARING

                               BEFORE THE

             SUBCOMMITTEE ON INTERNATIONAL DEVELOPMENT AND
               FOREIGN ASSISTANCE, ECONOMIC AFFAIRS, AND
                 INTERNATIONAL ENVIRONMENTAL PROTECTION

                                 OF THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 17, 2008

                               __________

       Printed for the use of the Committee on Foreign Relations


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                     COMMITTEE ON FOREIGN RELATIONS

                JOSEPH R. BIDEN, Jr., Delaware, Chairman
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts         CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin       NORM COLEMAN, Minnesota
BARBARA BOXER, California            BOB CORKER, Tennessee
BILL NELSON, Florida                 GEORGE V. VOINOVICH, Ohio
BARACK OBAMA, Illinois               LISA MURKOWSKI, Alaska
ROBERT MENENDEZ, New Jersey          JIM DeMINT, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, Jr., Pennsylvania   DAVID VITTER, Louisiana
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming
                   Antony J. Blinken, Staff Director
            Kenneth A. Myers, Jr., Republican Staff Director

                                 ------                                

   SUBCOMMITTEE ON INTERNATIONAL DEVELOPMENT AND FOREIGN ASSISTANCE, 
      ECONOMIC AFFAIRS, AND INTERNATIONAL ENVIRONMENTAL PROTECTION

                 ROBERT MENENDEZ, New Jersey, Chairman

JOHN F. KERRY, Massachusetts         CHUCK HAGEL, Nebraska
BARBARA BOXER, California            BOB CORKER, Tennessee
BARACK OBAMA, Illinois               LISA MURKOWSKI, Alaska
ROBERT P. CASEY, Jr., Pennsylvania   JIM DeMINT, South Carolina

                                  (ii)

  















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hagel, Hon. Chuck, U.S. Senator from Nebraska, prepared statement    18
Kunder, James, Acting Deputy Administrator, U.S. Agency for 
  International Development, Washington, DC......................     7
    Prepared statement...........................................     9
Luck, Dr. Edward C., Special Adviser to the Secretary General, 
  United Nations, New York, NY...................................    28
    Prepared statement...........................................    31
Menendez, Hon. Robert, U.S. Senator from New Jersey, opening 
  statement......................................................     1
Patrick, Dr. Stewart, senior fellow and director, Program on 
  International Institutions and Global Governance, Council on 
  Foreign Relations, Washington, DC..............................    42
    Prepared statement...........................................    44
Schneider, Mark L., senior vice president, International Crisis 
  Group, Washington, DC..........................................    34
    Prepared statement...........................................    37
Warlick, James B., Principal Deputy Assistant Secretary, Bureau 
  of International Organization Affairs, Department of State, 
  Washington, DC.................................................     3
    Prepared statement...........................................     5

                                 (iii)

  


           INTERNATIONAL DISASTER ASSISTANCE: POLICY OPTIONS

                              ----------                              


                         TUESDAY, JUNE 17, 2008

        U.S. Senate, Subcommittee on International 
            Development, and Foreign Assistance, Economic 
            Affairs, and International Environmental 
            Protection, Committee on Foreign Relations,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:41 p.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Robert 
Menendez (chairman of the subcommittee) presiding.
    Present: Senators Menendez, Feingold, and Hagel.

           OPENING STATEMENT OF HON. ROBERT MENENDEZ,
                  U.S. SENATOR FROM NEW JERSEY

    Senator Menendez. This hearing will now come to order.
    Let me thank you all for coming and I apologize to our 
witnesses and the audience. There is a vote going on as we 
speak, and so we thought it better to make sure we have the 
vote first and then come so we would be uninterrupted, 
hopefully, for the duration of the hearing. And I know Senator 
Hagel will be here shortly as he returns from the floor.
    We are here today to discuss international disaster 
assistance and, in particular, policy options when political 
obstacles prevent the assistance from reaching those in need.
    First, I want to say that my thoughts and prayers go out to 
those who have lost loved ones to the cyclone in Burma, the 
earthquake in China, and for that fact, here at home in the 
floods in Iowa. These kinds of disasters, unfortunately, will 
continue to take place, and therefore, there will always be a 
need to respond quickly to alleviate human suffering and reduce 
the loss of life.
    I am proud to say that the United States Government is the 
single largest donor of humanitarian assistance in the world. 
The U.S. Agency for International Development, through the 
Office of Foreign Disaster Assistance and the Office of Food 
for Peace, works with other U.S. Government partners and 
nongovernmental organizations to provide food, safe drinking 
water, and shelter materials after hurricanes, earthquakes, 
floods, and other natural disasters. These quick response teams 
are staffed by professional experts and work with a purely 
humanitarian agenda to save lives and ease suffering.
    But history has taught us that this purely humanitarian 
agenda often carries broader foreign policy implications, and 
while each humanitarian crisis is unique, so are the 
implications of our actions. It can bring nations closer and 
foster a positive U.S. presence. For example, favorable 
opinions of the United States spiked in Pakistan after our 
response to their tragic earthquake in 2005. So as we focus on 
humanitarian assistance, it is important that we recognize the 
significant weight it carries.
    So I say again that humanitarian assistance is much more 
complex than dropping food and water out of an airplane. It 
requires standing up and monitoring a distribution network. 
Such a network requires access and access is controlled by 
governments. In far too many cases, the government's priority 
is not the well-being of their people, but instead the well-
being of their own narrow political or personal interests. And 
there are instances, several of which we will discuss today, 
when assistance is blocked, stalled, or otherwise held up by 
governments that fear such assistance would somehow jeopardize 
their control or violate their sovereignty.
    A recent example of this is Burma where the military 
junta's irrational and xenophobic posture still contributes to 
a deep worsening of an already terrible tragedy. As a result of 
Cyclone Nargis, the United Nations estimates that between 
63,000 and 101,000 people have died. Over 55,000 are still 
missing. Over 100,000 are displaced, and a total of 2.4 million 
people are affected.
    And in Zimbabwe, recent reports indicate that the Mugabe 
regime is taking food out of the mouths of school children and 
instead handing it out to buy boats.
    When political leaders such as these neglect their people 
in a time of grave need, how shall the international community 
respond? How can the international community respond? What is 
the role of the United Nations? What is our collective 
responsibility, and how do we carry out this responsibility?
    One framework that has been under discussion for several 
years is called the ``responsibility to protect.'' This 
concept, which grew out of the 2005 World Summit Outcome 
Document focuses on the so-called ``right of humanitarian 
intervention.'' It asks when, if ever, it is appropriate for 
states to take coercive action and, in particular, military 
action against another state for the purpose of protecting 
people at risk. And I especially look forward to our second 
panel of expert witnesses to explore this further.
    This option becomes especially interesting as Secretary of 
Defense Robert Gates recently characterized the Burmese junta's 
response as ``criminal neglect.'' While this characterization 
does not appear to rise to the responsibility to protect, it is 
borderline of genocide, war crimes, or crimes against humanity, 
and it seems to me that it merits an organized, collective, and 
swift response.
    Now, we are not here to get bogged down in semantics, but 
instead to examine policy frameworks that may help us think 
about these issues in a more systematic way and help our 
collective response to be as effective as possible. Our goals 
for today's hearing are to improve our understanding of these 
options and I look toward building on our experience around the 
world so that those in need receive critical assistance in a 
timely way.
    As I await Senator Hagel, let me move on to recognize and 
introduce the first panel. Our first panel of witnesses, which 
we welcome to the committee, is Mr. James Warlick. Mr. Warlick 
is the Principal Deputy Assistant Secretary at the Bureau of 
International Organization Affairs of the Department of State, 
and also Mr. James Kunder, who is Acting Deputy Administrator 
at the U.S. Agency for International Development. They both 
have some extensive experience in this regard.
    And in the interest of time, I will turn to them to start 
their testimonies. When Senator Hagel comes, if it is in 
between testimonies, we will certainly let him have his 
statement, and we will move on from there.
    So we would ask you to keep your testimonies to about 7 
minutes. We will include a full copy in the record, and Mr. 
Warlick--I think I got that wrong the first time. Sorry--we 
will start off with you.

   STATEMENT OF JAMES B. WARLICK, PRINCIPAL DEPUTY ASSISTANT 
   SECRETARY, BUREAU OF INTERNATIONAL ORGANIZATION AFFAIRS, 
              DEPARTMENT OF STATE, WASHINGTON, DC

    Mr. Warlick. Thank you very much, Mr. Chairman. I really do 
appreciate the opportunity to address the subcommittee.
    I also want to thank you and congratulate you for holding 
this hearing. It is a very difficult and complicated issue. I 
am not sure that the administration has had an opportunity to 
really have this kind of a dialogue with the Senate Foreign 
Relations Committee on issues of some importance, and I hope 
this is the beginning of a dialogue between the executive and 
legislative branches in that regard.
    I submitted my full testimony for the record, but I would 
like to make a few comments just to put my testimony in some 
perspective.
    For more than 150 years, those who would aid the victims of 
disaster, whether natural or manmade, have recognized the 
importance of neutrality. Only by keeping their efforts 
separate from the political positions and alliances established 
by governments could they obtain the consent of sovereign 
governments. As a result, humanitarian assistance has generally 
been provided on a nonpolitical basis, dedicated to relieving 
the suffering of humanity without taking sides in a 
disagreement or conflict, armed or otherwise. This approach has 
saved millions of lives. It has also given humanity some of its 
most decent and altruistic institutions, including the Red 
Cross movement, and has earned Nobel peace prizes for two 
United Nations agencies, the World Food Program and the High 
Commissioner for Refugees.
    It is, therefore, important to recognize that in examining 
the way forward on disaster assistance policy options, we must 
not interfere with the humanitarian community's ability to 
offer its assistance wherever needed without political 
conditionality. By maintaining this principled stance, the 
assistance community may be able to save countless lives in the 
future in circumstances where a regime bars representatives of 
states they consider hostile or suspect.
    I would add it is important to undertake a multitiered 
approach to assistance, and this is important when we come back 
to discuss policy options, bilateral assistance where the 
American people, as you said, are extraordinarily generous and 
well beyond our own borders; the role of nongovernmental 
organizations, which are increasingly important and vital to 
the delivery of assistance, and also important actors in the 
political dimension of this side of the equation; regional 
organizations. And I hope we'll have an opportunity to discuss 
further the role, for example, of ASEAN in Burma. And then, of 
course, the United Nations, for which I am responsible at the 
Department of State. It is both those operational agencies that 
deliver the assistance, but also the political side of the 
United Nations, including the Security Council.
    One of the best policy options available to the United 
States is to turn to the U.N. operational agencies whose goals, 
structure, and service providers closely parallel our own. The 
Office of the Coordinator for Humanitarian Assistance focuses 
precisely on the issue of disaster assistance. I would say in 
the broadest sense, the multilateral framework for humanitarian 
efforts is actually set out in the Charter of the United 
Nations, which reflects the sovereign equality of all Member 
States. Consistent with this, it is generally accepted that we 
should look, in the first instance, to the state to address the 
needs of its people.
    When a state is unable to assist its people and unwilling 
to accept foreign assistance, the international community, 
through the United Nations, can use diplomatic and other 
peaceful means to try to persuade the state to allow assistance 
in. The question, What is our last resort if all else fails? 
poses the greatest challenge in humanitarian efforts. In that 
regard, I hope we will be able to come back to, as you 
mentioned, Burma, Sudan, Zimbabwe, and maybe looking to the 
future, a crisis in Somalia that we might help to avoid.
    This is an issue that has both legal and practical 
dimensions. On the legal side, for example, there is no 
question that the international community can act, even without 
the consent of a host government, when acting pursuant to the 
decisions of the U.N. Security Council under chapter VII of the 
U.N. Charter. The predicate for such action is a determination 
by the U.N. Security Council that the situation presents a 
threat to international peace and security.
    And finally, the language on responsibility to protect that 
was adopted by heads of state and governments in the World 
Summit Document, as you mentioned, in September 2005 makes an 
important contribution in this regard. It is based on the 
recognition that certain situations that might in one sense be 
viewed as presenting internal threats, such as war crimes, 
genocide, crimes against humanity, and ethnic cleansing, do, in 
fact, present a threat to international peace and security. 
They are, therefore, proper subjects of concern to the 
international community as a whole and proper subjects of 
action by the U.N. Security Council. While the summit document 
was focused on these four particular categories of atrocities, 
there is a broader principle, that seemingly internal actions 
can threaten international peace and security.
    Mr. Chairman, thank you very much and I would be happy to 
take any questions. And thank you, Mr. Hagel.
    [The prepared statement of Mr. Warlick follows:]

  Prepared Statement of James B. Warlick, Principal Deputy Assistant 
Secretary, Bureau of International Organization Affairs, Department of 
                         State, Washington, DC

    Thank you, Mr. Chairman, Senator Hagel, and members of the 
subcommittee. I appreciate the opportunity to talk with you today about 
international disaster assistance and policy options.
    Since the earliest days of the modern humanitarian movement, 
launched by Henri Dunant following the battle of Solforino in 1858, 
those who would aid the victims of disaster, whether natural or man 
made, have recognized the importance of neutrality. Only by keeping 
their efforts separate from the political positions and alliances 
established by governments could they obtain the consent of sovereign 
governments. As a result, humanitarian assistance has generally been 
provided on a nonpolitical basis, dedicated to relieving the suffering 
of humanity without taking sides in a disagreement or conflict, armed 
or otherwise. This approach has saved millions of lives. It has also 
given humanity some of its most decent and altruistic institutions, 
including the Red Cross Movement, and has earned Nobel peace prizes for 
two United Nations (U.N.) agencies: The World Food Programme and the 
High Commissioner for Refugees.
    It is therefore important to recognize that, in examining the way 
forward on disaster assistance policy options, we must not interfere 
with the humanitarian community's ability to offer its assistance 
wherever needed without political conditionality. By maintaining this 
principled stance, the assistance community may be able to save 
countless lives in the future in circumstances where a regime bars 
representatives of states they consider hostile or suspect.
    Perhaps the best policy option available to the U.S. when our 
bilateral assistance is shunned is to turn to the U.N. Secretariat and 
operational agencies, whose goals, structure, and service providers 
closely parallel our own. Within the Secretariat, the U.N. Emergency 
Response Coordinator (ERC) and Office for the Coordination of 
Humanitarian Affairs (OCHA) focus precisely on the issue of disaster 
assistance. In addition, the ERC advocates strongly for humanitarian 
action: Former ERC Jan Egeland was among the earliest and most 
passionate advocates of humanitarian action in Darfur; his successor, 
John Holmes, spent more than a week in Burma after cyclone Nargis 
struck, pressing the regime to open up to outside help. He is now 
actively engaged in efforts to persuade the Government of Zimbabwe to 
rescind its decision to suspend all nongovernmental organizations 
(NGOs) activity in that country.
    There are also the U.N. operational agencies themselves. Like 
USAID, they rely on and provide funds to field-based NGO implementing 
partners whenever possible. Thus, even when a U.S. presence is not 
welcome in a particular country, a U.N. presence can assure the 
adherence to humanitarian policies, procedures and goals similar to our 
own. Often, the U.N. presence also provides an umbrella through which 
U.S. goods and services can reach those in need.
    The ideal, of course, is for a state to welcome direct bilateral 
assistance as well as the presence of multilateral agencies. Under such 
circumstances the population will benefit, I would note in particular, 
from the Office of U.S. Foreign Disaster Assistance (OFDA), our lead 
U.S. Government (USG) agency for response to disasters. In many 
instances, including the Bam Earthquake in Iran, and hurricanes in 
Cuba, OFDA has provided vital, impartial assistance to populations in 
need in countries that usually exclude our help. It is clearly 
important that the USG maintain robust civilian organizations with 
proven track records of impartiality that can link with the broader 
humanitarian community to meet urgent needs in any part of the world. 
Our close relations with other bilateral donor agencies, the Red Cross 
Movement, and the United Nations humanitarian agencies give us numerous 
policy options and are essential to effective impartial civilian-led 
interventions.
    The art of humanitarian response lies in finding the best 
combination of responders for a specific crisis. At times, the civilian 
agencies are supported by their colleagues at the Department of Defense 
(DOD). DOD's logistical capacity to move materials, coupled with the 
skills and compassion which our soldiers, sailors, airmen, and marines 
bring to humanitarian emergencies, are proven and invaluable. For 
instance, when the tsunami devastated the lives of millions of people 
in the Indian Ocean states, the U.S. military was a key partner in 
putting together a rapid and effective response. However, it is 
important to note that in responding to the tsunami the U.S. military 
was there by invitation, and that it operated in support of a civilian-
led USG and global effort.
    As we have seen most recently in Burma, the international 
willingness to respond may be rejected or impeded even more broadly by 
local forces. In some cases, regional groupings of states have stepped 
forward in an effort to broker some arrangement for providing 
assistance. ECOWAS (Economic Community of West African States) 
performed such a role in Sierra Leone and Liberia; the AU (African 
Union) has attempted to help in Darfur and Somalia; and ASEAN 
(Association of South East Asian Nations) has stepped forward in Burma. 
Such regional groupings often can carry more weight and exert more 
influence on a neighboring state than large bilateral donors can, and 
they can provide an acceptable platform through which the international 
community can channel assistance.
    In the broadest sense, the multilateral framework for humanitarian 
intervention is set out in the Charter of the United Nations, which 
reflects the ``sovereign equality'' of all Member States. Consistent 
with this, it is generally accepted that we should look in the first 
instance to the state involved to address the needs of its people. 
Often, states can do this with little or no outside help, or make 
voluntary arrangements with other states, international organizations 
or volunteer groups to assist them.
    When a state is unable to assist its people and unwilling to accept 
foreign assistance, the international community, through the United 
Nations, can use diplomatic and other peaceful means to try to persuade 
the state to allow assistance in.
    The question--what is our last resort if all else fails--poses the 
greatest challenge in humanitarian intervention. What if the door is 
barred to all: The Red Cross Movement, the U.N. operational agencies, 
the NGOs, the bilateral donors (both civilian and military), and the 
regional political groupings? Must the world stand by while people 
suffer and die because they are denied access to assistance that is 
waiting just over the horizon?
    This is an issue that has both legal and practical dimensions. On 
the legal side, for example, there is no question that the 
international community can act, even without the consent of the host 
government, when acting pursuant to decisions of the U.N. Security 
Council under chapter VII of the U.N. Charter. The predicate for such 
action is a determination by the U.N. Security Council that the 
situation presents a threat to international peace and security.
    The language on responsibility to protect that was adopted by heads 
of state and government in the World Summit Document of September 2005 
makes an important contribution in this regard. It is based on the 
recognition that certain situations that might in one sense be viewed 
as presenting internal threats--war crimes, genocide, crimes against 
humanity, and ethnic cleansing--do, in fact, present a threat to 
international peace and security. They are, therefore, proper subjects 
of concern to the international community as a whole, and proper 
subjects of action by the U.N. Security Council. While the Summit 
Document was focused on these four particular categories of atrocities, 
the broader principle--that seemingly internal actions can threaten 
international peace and security--is an important one.
    But there is a practical dimension as well. Forced intervention for 
the purpose of delivering humanitarian aid may have unintended 
consequences, putting more people at risk and cutting back on whatever 
assistance might already be flowing in. Military intervention may well 
involve interruption of commercial activity, including the delivery of 
private aid, and displacement of previously unaffected portions of the 
population. Hostilities could erupt, putting U.S. forces and local 
civilians in harm's way. Even the use of civilian airdrops could draw 
hostile fire and prompt a government to expel or restrict humanitarian 
agencies already working on the ground. Thus, while humanitarian 
intervention without the consent of the host government cannot be ruled 
out as a policy option of last resort, its risks can be grave and its 
impact uncertain.
    In examining the recent events in Burma, our success has been 
limited but has improved incrementally. First, the U.S. Embassy 
immediately requested emergency financial assistance and channeled it 
to U.N. agencies already operating in the country. Later, when the 
Government of Burma agreed to allow U.S. military cargo planes to begin 
delivering humanitarian supplies, Director for Foreign Assistance Fore 
and Admiral Keating were on the first flight. In these contacts with 
the Burmese authorities, our message has been clear: We are here to 
help. However, the regime remained intransigent on two key offers of 
bilateral assistance: The USAID DART team positioned in Bangkok, and 
direct delivery of assistance by our military assets in the region.
    As the USG pursued efforts to provide bilateral assistance, the 
U.N. Secretary General also made a direct appeal to Burma's generals. 
He first sent the U.N. Emergency Relief Coordinator, Under Secretary 
Holmes, to advocate for increased access by humanitarian workers, and 
within a few days, boarded a plane to deliver the message in person. 
Like us, the U.N. made clear that their sole motive was to assist the 
Burmese people. In addition, ASEAN Member States undertook diplomatic 
efforts to organize a regional response. Burmese authorities were more 
amenable to this approach, which led to a joint U.N.-ASEAN donors 
conference and a joint assessment, currently under way, to identify and 
fill gaps in humanitarian assistance.
    Throughout these diplomatic efforts, work was underway in Burma to 
relieve the suffering. NGOs and U.N. agencies already operational in 
the field, many with strong financial support from USAID and the 
Department of State, began to assess humanitarian needs, coordinate 
responses, and deliver relief. In some cases, the Burmese authorities 
have allowed them to strengthen their staff and expand their roles.
    Has the Burmese response to these efforts been acceptable? No. Have 
the Burmese people suffered needlessly? Yes. We and our partners 
therefore continue to work to deliver additional resources and skilled 
personnel to resolve the substantial needs which remain 6 weeks after 
the cyclone struck, and to examine humanitarian policy options to 
determine how more can be done.
    By contrast, following the December 2004 Indian Ocean tsunami, host 
governments welcomed nearly all offers of international assistance. 
While some incidents of government rejection of aid from a specific 
donor or efforts to restrict the movements of assistance workers and 
journalists were reported, there were few given the scale and scope of 
the disaster, which affected 12 countries, killed a quarter of a 
million people, and left 10 million homeless.
    Even in the Bam Earthquake in Iran, as noted, a hostile government 
recognized and accepted the neutral and impartial offer of assistance 
from OFDA and other Western donors. In Somalia, we are confronted not 
by the actions of a hostile government, but by the challenges of 
operating in a failed state where corruption, banditry, and piracy 
hinder the movement of civilians and impede the provision of 
humanitarian assistance. The crisis there remains primarily one of 
security.
    Darfur, however, is an example where both lack of security on the 
ground and government interference impede humanitarian operations. The 
U.S., as you know, has led the effort to rally worldwide condemnation 
of the genocide there, and to support efforts to position AU and U.N. 
peacekeepers with the physical capacity and legal authority to protect 
civilians and project force. Like the earlier Operation Lifeline Sudan 
in the south, the Darfur efforts are subject to constantly changing 
conditions and new obstacles created by the Khartoum government. Rebel 
forces also pose serious challenges and are responsible for some of the 
numerous attacks on humanitarian workers in clear violation of 
international law.
    As each of these crises has shown, the U.S., in particular, and the 
global community, in general, have a strong desire and capacity to 
assist the victims of disaster. We do so in the best of the 
humanitarian tradition. Our diplomatic efforts, like our policy 
options, are designed to move the marker ever closer to the goal of 
aiding the victims of humanitarian disasters. We stand ready to work 
with any state in furtherance of that goal.

    Senator Menendez. Thank you very much, Mr. Warlick.
    Mr. Kunder.

 STATEMENT OF JAMES KUNDER, ACTING DEPUTY ADMINISTRATOR, U.S. 
      AGENCY FOR INTERNATIONAL DEVELOPMENT, WASHINGTON, DC

    Mr. Kunder. Thank you. This set of issues is a set that we 
grapple with regularly, and we very much appreciate the 
opportunity to share some of our perspectives and get your 
feedback.
    I am joined today by Mr. Ky Luu, the Director of our Office 
of Foreign Disaster Assistance. I very much appreciate your 
mentioning them and our Food for Peace Office. They really are 
a group of dedicated professionals who regularly put their 
lives on the line to deliver humanitarian assistance. So thank 
you very much for the compliment.
    I will just summarize briefly my statement. What I tried to 
do was put these questions into some kind of context, pointing 
out that there are about 355 disasters that USAID has responded 
to over the last 5 years. So a great bulk of these crises are 
those that are handled behind the headlines, without a lot of 
resistance from the host government. Most of them work quite 
well.
    I tried to disaggregate the reasons why governments 
sometimes resist U.S. or other foreign assistance, and that 
runs the gamut from chaos within the country to lack of the 
government's own assessment capacity--they simply do not know 
they cannot handle the problem--all the way to some good-news 
stories that are buried in there. For example, one of the 
things we have been trying to do is build disaster response 
capability around the world. We have now trained more than 
40,000 disaster responders in 26 countries of Latin America and 
the Caribbean so that now there is some indigenous capacity, 
and they frankly do not need our assistance as much as they 
used to 20 or 30 years ago.
    Then I tried to get at the question of what are some of the 
tactics we can use when a government does resist, and I lay out 
nine different strategies, everything from cross-border 
operations to using the U.N. agencies, as Jim mentioned, and 
some areas where I think there is further work that we could 
all do, like developing the U.N. Guiding Principles on Internal 
Displacement, which do not yet have the force of international 
law but could be important tools to intervene in a country 
where there is internal displacement and the government is not 
taking care of its own people's needs.
    But ultimately, there are an irreducible number of 
countries where there is a mismatch between the ability of the 
international community to respond and the resistance of the 
host government. Burma is the most dramatic recent example. I 
am prepared to go into any detail you want on how we responded. 
Essentially we made the decision early on to try to deal with 
the junta to open up some humanitarian space in Burma. We 
believe that that strategy has been partially successful to the 
tune that we have now been able to provide $38 million of U.S. 
Government assistance to the people of Burma. We have had more 
than 170 C-130 loads of relief supplies go in. And now those 
supplies are being consigned, transferred over to the 
international organizations or the NGOs. So we believe we have 
been able to wedge open some humanitarian space, but clearly 
not enough and clearly there are still people suffering in 
Burma today.
    And let me just close by saying, sir, I was contemplating 
coming up here today, that 16 years ago, almost exactly this 
month, I was preparing to make my first trip into Somalia 
during the crisis back then before the U.S. troops went in. I 
traveled in with then-Senator Nancy Kassebaum. We were the 
first two senior U.S. Government officials to travel into 
Somalia at that point after the fall of the Siad Barre regime. 
And because of the horrific situation on the ground, I came 
back an impassioned advocate for sending U.S. troops in, which 
of course we did about 6 months later in December 1992. That 
set in motion a series of events that culminated in the events 
that we all know about, the killing of U.S. troops and so 
forth.
    In the interim, we did solve the humanitarian crisis. The 
intervention under chapter VII of the U.N. Charter did, in 
fact, solve the humanitarian crisis. It then, of course, opened 
another set of issues related to the governance of Somalia, 
which I think lays on the table the complex calculus that we 
have to face in a Bosnia, in a Somalia, in a Burma. There is 
undoubtedly benefit that can happen when outsiders force their 
way in and take on the humanitarian challenges.
    The more difficult question is what comes next. Do we then 
take on the reasons why there was a crisis in the first place? 
And what are the long-term implications for the people who are 
going to stay there after we leave, and are we benefiting them 
or hurting them in the long run? So I am more than glad to go 
into any detail that you would like on those.
    But, again, thank you for holding this hearing. We 
appreciate the chance to testify.
    [The prepared statement of Mr. Kunder follows:]

 Prepared Statement of James Kunder, Acting Deputy Administrator, U.S. 
          Agency for International Development, Washington, DC

    Mr. Chairman and members of the subcommittee, thank you for 
inviting me to testify today to discuss policy options when political 
obstacles impede humanitarian assistance following a disaster.
    In the vast majority of international disasters, emergency relief 
from the U.S. Government (USG) arrives rapidly and efficiently to help 
populations in distress. In the past 5 years alone, USAID has responded 
to 355 declared disasters in all regions of the world. Most of these 
natural and manmade disasters never make international headlines and 
are addressed in a straightforward manner without political 
interference in the affected country. Our assistance usually is eagerly 
accepted by thankful foreign governments and by grateful citizens as 
they struggle to overcome devastation and hardship.
    Your hearing today is timely, however. As we speak, a difficult 
humanitarian response in Burma is underway, with the full collaboration 
of staff from the U.S. Agency for International Development (USAID), 
the Department of State, the U.S. Military, international 
organizations, and nongovernmental organizations (NGOs). Our emergency 
efforts in Burma have encountered numerous obstacles, as you know. 
Meanwhile in Zimbabwe, the Zimbabwean Government on June 4 ordered the 
suspension of all NGO operations in that country. In Sudan, authorities 
last month slowed humanitarian operations by temporarily closing all 
airports in Darfur to humanitarian traffic.
    Recent events such as these underline the importance of having 
policy options that can help overcome political obstructions to 
humanitarian assistance. Led by USAID, the USG is second-to-none in its 
ability to quickly mobilize resources to respond to disasters 
throughout the world. In order for the USG to provide humanitarian 
assistance, the host government of the recipient country must request--
or be willing to accept--our assistance. Unfortunately, in countries 
where populations are in desperate need of humanitarian assistance, 
this is not always the case.
              normal framework for humanitarian assistance
    In order to understand the policy options available to USAID when 
political obstacles impede humanitarian help, it is important to 
understand how the USG, through USAID, provides humanitarian 
assistance. The USG declares an international disaster if an event 
meets three criteria: The magnitude of the disaster is beyond the 
capacity of the host country to respond; the host country requests or 
is willing to accept assistance; and a response is in the interest of 
the USG. It is recognized as a matter of principle and practice that it 
is virtually always in the interest of the USG to provide humanitarian 
assistance where post-disaster suffering is extensive and when lives 
hang in the balance.
    Within USAID, the Bureau for Democracy, Conflict, and Humanitarian 
Assistance (DCHA) plays the primary role in responding to emergency 
situations. Within USAID/DCHA, the office of U.S. Foreign Disaster 
Assistance (OFDA) is designated as the lead USG office responsible for 
providing humanitarian assistance in response to international 
disasters. The legislated mandate of OFDA is to save lives, alleviate 
human suffering, and reduce the social and economic impact of 
humanitarian emergencies worldwide. In addition, USAID's Office of Food 
for Peace (FFP) is deeply involved in providing life-saving emergency 
food aid to international victims of disasters and other emergencies.
    USAID provides emergency humanitarian assistance in accordance with 
fundamental, widely recognized humanitarian principles. Our assistance 
adheres to the ``humanitarian imperative''--the core principle that 
human suffering should be addressed wherever it is found. USAID 
provides humanitarian assistance that is politically neutral, socially 
impartial, and is based on victims' needs rather than political 
factors. This is one reason that assistance authorized under the 
International Disaster Assistance account may be furnished 
notwithstanding any other provision of law that otherwise might 
prohibit assistance to a particular country for political or other 
reasons unrelated to the need to respond to a disaster. USAID disaster 
response programs strive to live up to the principle of ``do no harm'' 
and seek, to the extent possible, to provide protection to 
beneficiaries and build local capacities. The life-saving assistance 
rendered by USAID always aims to fulfill our responsibility of 
accountability--both to the beneficiary community as well as to the 
American people whose resources and goodwill are entrusted to us.
    It is important to understand that USAID's consistent adherence to 
these fundamental humanitarian principles compels us--and indeed, 
enables us--to provide disaster relief even in countries that have 
strained relations with the USG. Our adherence to these humanitarian 
principles opens doors internationally. For example, USAID during the 
past 5 years has responded with emergency humanitarian assistance to 
three natural disasters in Cuba, three emergencies in North Korea, a 
major earthquake in Iran, a natural catastrophe in Venezuela, six 
declared emergencies in Zimbabwe, as well as an emergency in Burma 
prior to last month's cyclone. The strictly humanitarian, nonpolitical 
nature of USAID's international disaster assistance often is sufficient 
to overcome tense diplomatic relationships. The people of these 
countries are grateful for our help in their time of need.
    In addition to the above principles, humanitarian efforts by the 
international community, including USAID, are bolstered by 
international humanitarian law that imposes on States certain 
obligations with respect to humanitarian aid. The Fourth Geneva 
Convention requires an Occupying State to the fullest extent of the 
means available to it to ensure food and medical supplies for the 
occupied civilian population. For States Parties to Additional Protocol 
I, there is the added requirement of providing, to the extent feasible, 
clothing, bedding, shelter, and other supplies essential to the 
survival of the civilian population. And the Fourth Convention 
recognizes the role of the International Committee of the Red Cross 
(ICRC) in protecting civilians and providing relief, subject to the 
consent of the Parties to the Conflict.
    The U.N. Guiding Principles on Internal Displacement, although 
lacking the force of international law, are based on IHL and human 
rights instruments and are widely recognized as a useful framework for 
addressing the needs of populations displaced by natural or manmade 
emergencies. The U.N. Guiding Principles on Internal Displacement state 
that ``international humanitarian organizations and other appropriate 
actors have the right to offer their services'' and that ``consent 
thereto shall not be arbitrarily withheld, particularly when 
authorities concerned are unable or unwilling to provide the required 
humanitarian assistance.'' The U.N. guidelines further state that IDPs 
should enjoy safe access to food, potable water, shelter, clothing, and 
essential medical services and sanitation, and that authorities in 
afflicted countries ``shall grant and facilitate the free passage of 
humanitarian assistance and grant persons engaged in the provision of 
such assistance rapid and unimpeded access . . .''.
    Proper adherence to these principles and protocols would go a long 
way toward eliminating restrictions on humanitarian access imposed by 
some governments.
                          why obstacles occur
    Instances occur where a foreign government does not request 
emergency humanitarian assistance from the USG or where a foreign 
government accepts USG help grudgingly and with numerous obstructions 
that undermine our efforts. Based on our many years of experience in 
hundreds of disaster responses, it appears that these obstacles occur 
for at least five general reasons.
    First, some governments do not request USG disaster assistance 
because they already possess sufficient capacity to respond. This is 
partly due to the relatively unheralded success story of USAID's long 
investment in local disaster preparedness and local disaster mitigation 
efforts in Latin America, the Caribbean, and South Asia. USAID/OFDA has 
helped provide training to more than 40,000 disaster specialists in 26 
Latin American and Caribbean countries during the past 18 years, 
helping to build local response capacities. USAID is seeking to 
replicate that capacity-building strategy in six of the most disaster-
prone countries of Asia.
    For example, when flooding and landslides hit the second-largest 
city in Bangladesh last year, the Government of Bangladesh and 
organizations in that country possessed the capacity to conduct 
emergency relief operations without a formal appeal for assistance from 
USAID. Similarly, when tropical cyclone Sidr struck Bangladesh in 
November 2007 and killed 3,300 persons, the tragic loss of life was 
dramatically lower than the 125,000 death toll when a cyclone of 
similar strength had hit Bangladesh in 1991. Disaster preparedness and 
mitigation programs supported by USAID in Bangladesh over the years 
played an important role in the reduced loss of life. Therefore, a 
government's decision not to seek USG disaster assistance--or to seek 
only limited help--can be a welcomed sign of local preparedness and 
expertise that, in many cases, USAID helped to nurture over many years.
    Second, some governments do not request USG humanitarian 
assistance--or severely limit the assistance they will accept--due to a 
sense of national pride, a poor understanding of the scale of disaster, 
or an inflated sense of local emergency response capacities.
    Third, some governments coping with a local disaster are wary of 
USG help because they are slow to understand and trust that USG 
humanitarian assistance is genuinely grounded in the principles of 
neutrality and impartiality, as discussed above. The Burmese regime has 
limited our ability to provide humanitarian assistance in the aftermath 
of Cyclone Nargis, claiming that our assistance could not be trusted.
    Fourth, some countries are slow to request USG assistance because 
of their own political chaos. Somalia has been such an example for much 
of the past two decades.
    Fifth, in some instances a government does not want USG emergency 
assistance--or raises constant obstacles to undermine effectiveness of 
assistance that does arrive--because that government has chosen to 
trigger or exploit the emergency to marginalize or punish a portion of 
its own population. The Government of Sudan has a long history of 
employing this tactic dating back to the 1980s. Zimbabwe has a more 
recent track record in this regard.
    These impediments can slow humanitarian assistance or, in worst-
case scenarios, block it altogether. As a result, large numbers of 
innocent people die unnecessarily or are forced to endure additional 
suffering because the food, plastic sheeting, blankets, medicines, and 
other essential relief commodities are stacked up in warehouses or on 
ships, blocked from timely distribution to populations in dire need.
    However, it is important to point out that even in situations with 
restricted humanitarian access, at least a portion of the desperately 
needed emergency relief commodities usually manage to reach disaster 
victims. In the current Burma cyclone emergency response, for example, 
USAID has been able to overcome constraints imposed by Burmese 
authorities to provide $28.3 million of assistance to 13 U.N. and 
nongovernmental organizations (NGOs) for shelter, food aid, emergency 
health services, and water, sanitation, and hygiene programs targeted 
at more than 1 million beneficiaries. We are distressed by the 
unacceptable delays imposed on us and our humanitarian partners in the 
field, and the scale of assistance allowed into Burma has not been 
commensurate with the overwhelming humanitarian need on the ground, but 
even in Burma our humanitarian efforts are no longer totally blocked.
            strategies and tactics to overcome obstructions
    It is worth examining the toolkit of strategies and tactics that 
enable USAID to deliver disaster assistance despite obstacles erected 
by the governments of affected countries.
Ensure Cooperation Between USAID and Department of State
    Constraints on humanitarian access often can be alleviated through 
discussions at the diplomatic level. International diplomatic pressure, 
particularly when done in coordination with regional leaders or key 
partners of the country in question, often is an effective tool for 
gaining humanitarian access. The Organization of American States (OAS) 
and the Association of Southeast Asian Nations (ASEAN) and their 
constituent members are examples of key partners that can be helpful 
allies in advocating for humanitarian access.
    During a disaster response, USAID relief specialists work to keep 
Department of State (DOS) colleagues fully informed about the scale of 
needs on the ground, specific USAID relief actions being blocked by 
local government authorities, specific concessions needed from the host 
government, and whether local officials are implementing agreements 
made at higher levels. Coordination between USAID and DOS works best 
when there is a collective understanding of the core principles 
underlying humanitarian assistance efforts.
Channel Assistance Through Nongovernmental Agencies and International 
        Organizations
    Emergency relief funded by USAID is overwhelmingly channeled 
through U.N. humanitarian agencies, international or local NGOs, or 
other international organizations such as the ICRC. This accentuates 
the neutral, impartial, independent nature of the USG's humanitarian 
assistance. Even when host governments choose to limit the access of 
USAID relief officials to disaster areas, USAID relief can still reach 
beneficiaries via these institutional partners, many of whom have 
ongoing programs in affected countries and, therefore, are well-
positioned to assess needs and ensure that USAID assistance is well-
targeted. To cite one example, USAID regularly channels funding to 
national Red Cross/Red Crescent societies in stricken countries via the 
International Federation of the Red Cross/Red Crescent, thereby 
bypassing obstacles that might impede international agencies.
    To be sure, U.N. agencies and NGOs also are vulnerable to 
obstructions by host-country officials. This has occurred in Burma and 
regularly occurs in Sudan. The Government of Zimbabwe ordered NGOs to 
suspend their operations 2 weeks ago. In such situations, a combined 
advocacy effort by USAID, the DOS, other donor countries, and by top 
U.N. officials becomes necessary. Currently in Zimbabwe, for instance, 
USAID is urging the U.N. to take a more active advocacy role on behalf 
of NGOs struggling to operate there.
Maintain Civilian Lead on Emergency Response
    The Department of Defense (DOD) possesses in some situations 
unsurpassed logistical airlift capacity that has proven to be extremely 
supportive in some particularly large or challenging humanitarian 
interventions. When those situations arise, USAID, as the lead agency 
for USG humanitarian assistance response, works hard to coordinate the 
DOD efforts with our own to ensure that we are both addressing the most 
pressing humanitarian priorities using the right methodologies.
    USAID/DCHA has established an Office of Military Affairs to serve 
as USAID's primary strategic point of contact with DOD. At an 
operational level, USAID/OFDA provides training on humanitarian 
principles and methodologies to DOD personnel and maintains ongoing 
interaction with DOD staff on a range of humanitarian issues. At the 
height of an emergency response in which military assets might be used, 
USAID/OFDA humanitarian assistance advisors are deployed to DOD's 
appropriate combat command headquarters to provide guidance on 
humanitarian operations in accordance with humanitarian principles and 
priorities. A new USAID Policy on Civilian-Military Cooperation lays 
out key principles for cooperation when the post-emergency phase has 
been completed and long-term reconstruction and development begin.
    The U.N. has produced numerous policy documents that can serve as 
references for humanitarian agencies worldwide, including ``Guidelines 
on the Use of Military and Civil Defense Assets in Disaster Relief'' 
produced in 1994, ``Guiding and Operating Principles for the Use of 
Military and Civil Defense Assets in Support of Humanitarian 
Operations'' produced in 1995, ``Guidance on Use of Military Aircraft 
for U.N. Humanitarian Operations During the Current Conflict in 
Afghanistan'' produced in 2001, and ``Guidelines on the Use of Military 
and Civil Defense Assets in Complex Emergencies'' in 2003.
    As recent experience in Burma illustrates, some foreign governments 
are reluctant to permit U.S. military personnel to participate directly 
on the ground in emergency relief operations. For that reason, a clear 
distinction between military personnel and USG civilian humanitarian 
workers can be crucial in gaining permission to access disaster zones.
Use Low-Visibility Tactics
    Our emergency relief efforts typically engender local and 
international goodwill that results in helpful public diplomacy. While 
this is welcomed, it is not the USG's main motivation for providing 
humanitarian assistance. The main purpose is to act rapidly to save 
lives and alleviate suffering. Because of political or cultural 
sensitivities in particular countries, USAID sometimes eschews high-
profile steps such as deployment of USAID Disaster Assistance Response 
Teams to disaster zones in favor of less visible steps that work 
through U.N. humanitarian agencies or NGOs. Because of local 
sensitivities or dangers, USAID in some disaster responses agrees to 
suspend some or all of its requirement that all projects and 
commodities funded by USAID bear the USAID logo. We utilize these 
tactics so that life-saving aid will not be blocked or otherwise abused 
by local politics.
Airdrop Humanitarian Commodities
    When U.S. emergency relief encounters obstructions abroad, the 
American public and journalists frequently ask, ``Why not deliver 
relief supplies via airdrops?'' Humanitarian airdrops were temporarily 
used in Bosnia during the 1990s and for many years in South Sudan.
    In truth, airdropping relief commodities into disaster areas is 
extremely problematic and is attempted only in special circumstances as 
a last resort. Airdrops are potentially dangerous to people on the 
ground. Relief supplies dropped from planes are susceptible to falling 
into the wrong hands and often fail to reach the weakest and most 
vulnerable victims in chaotic disaster situations. Airdrops are 
extremely expensive and inevitably result in damage on impact to a 
portion of the commodities being delivered. Without proper monitoring 
and controls, airdropped supplies such as medicines can be misused in 
dangerous ways. Airdrops have a chance to be of limited effectiveness 
only when operational air space is safe, the ``drop zone'' is small and 
well-defined, and when cooperative local authorities or trained 
humanitarian workers are present on the ground to organize proper 
distribution of airdropped supplies. Airdrops into the extensive 
Irrawaddy Delta of Burma after the cyclone were not considered to be a 
viable alternative.
Use Tactic of Cross-Border Relief
    When violent conflict or national authorities claiming 
``sovereignty'' block humanitarian assistance to populations in dire 
need, USAID and other international humanitarian agencies have resorted 
at times to cross-border relief efforts that use a neighboring country 
as a base for relief operations.
    Various international agencies used a cross-border strategy to 
deliver assistance into northern Ethiopia (now Eritrea) from 
humanitarian bases in Sudan during the 1980s, into Afghanistan from 
humanitarian staging areas in Pakistan and Tajikistan during the 1980s 
and 1990s, and into Southern Sudan from a humanitarian base of 
operations in Kenya during the 1990s.
    Cross-border humanitarian operations typically require permission 
and cooperation from countries hosting humanitarian bases, adequate 
local infrastructure to facilitate cross-border travel, as well as 
confidence that humanitarian workers can travel across the border 
safely.
Push for Formal Negotiated Access
    Ideally, the existence of IHL and widely recognized humanitarian 
principles should make negotiations for humanitarian access 
unnecessary. Unfortunately, it is all too clear that in some 
emergencies this is not the case.
    The international humanitarian community gained access to millions 
of war-
affected persons in desperate need of help in Southern Sudan in 1989 
and throughout the 1990s through a negotiated process that came to be 
known as Operation Lifeline Sudan (OLS). Despite its many 
imperfections, OLS was a groundbreaking achievement in the history of 
international emergency relief. At a time of devastating civil war in 
Southern Sudan, OLS was in essence the world's first formally 
negotiated cross-border relief operation. The agreement created 
designated ``corridors of tranquility'' and pledged all parties in the 
conflict to permit safe and unhindered passage and delivery of relief 
items to populations in need even as military operations continued 
unabated. Although the Government of Sudan in particular frequently 
violated its commitments under OLS, the agreement made possible a large 
and long-term relief operation that saved countless lives during 
Southern Sudan's long war.
    Over the many years of conflict in Sudan, humanitarian actors have 
also helped negotiate temporary cease-fires to undertake vaccination 
campaigns and other humanitarian activities. In fact, experience in 
Sudan has demonstrated that establishing a dialogue between warring 
parties on humanitarian issues can gradually help to build the 
relationships and trust that warring parties need in order to jump-
start the political dialogue and negotiations that can bring the 
underlying conflict to an end.
Resort to U.N. Chapter VII Peace Enforcement
    When situations warrant, the USG supports U.N. peace enforcement 
measures under which the Security Council, acting under chapter VII of 
the Charter of the United Nations, can authorize the use of force to 
restore and maintain peace and security, and such measures can include 
creating safe conditions for humanitarian operations. Countries and 
areas with respect to which the U.N. Security Council has acted under 
its chapter VII authority in recent years include Afghanistan, East 
Timor, Haiti, the Democratic Republic of Congo, Albania, Sierra Leone, 
and the Ethiopia-Eritrea border. USAID's monitoring of humanitarian 
conditions is part of the analysis used by USG policymakers when 
considering whether to support a U.N. chapter VII resolution.
Responsibility to Protect
    Mr. Chairman, the subcommittee has posed the question of whether 
the responsibility to protect concept, endorsed in 2005 at the U.N. 
World Summit, should be the basis for the Security Council to authorize 
the use of force in recent humanitarian situations such as the Burma 
cyclone response. I will defer to the views of the Department of State 
on this issue, but USAID offers two points that should be kept in mind:
    First, from a strictly humanitarian perspective, it is conceivable 
that in a situation involving genocide, war crimes, crimes against 
humanity, or ethnic cleansing, USAID might be prompted to make an 
internal recommendation that policymakers consider a forceful 
intervention. The ultimate decision on whether to pursue Security 
Council action in such a situation would be made at a higher level of 
the USG, of course, but USAID recognizes that it does have an important 
responsibility to ensure that facts and analyses about dire 
humanitarian conditions are squarely on the table when important 
decisions are made.
    Second, as a practical matter, USAID wishes to point out that the 
international humanitarian community should always take care that 
disaster victims do not suffer retribution from their national 
authorities for receiving or accepting our assistance; this concern is 
consistent with the fundamental humanitarian principle of ``do no 
harm.''
                               conclusion
    Included as an appendix to this written testimony is a review of 
USAID disaster responses in several case studies of interest to the 
subcommittee. USAID would be pleased provide additional information on 
these or other case studies should the subcommittee request.
    In conclusion, Mr. Chairman, the encouraging news is that USAID's 
emergency relief in most situations reaches disaster victims rapidly, 
effectively, and efficiently, often without headline attention. Working 
with partner agencies, we find a way to overcome most logistical, 
political, and security impediments. When obstructions to assistance 
grow particularly severe, USAID has developed a large and varied list 
of strategies and tactics over the years that have proven useful in 
getting relief to people in need.
    The troubling news is that frustrations remain. Humanitarian access 
in some emergencies is not as free and unhindered as it needs to be. 
There can be no doubt that some disaster victims have suffered and died 
needlessly when life-saving relief supplies were blocked or delayed, 
despite our best efforts. Please be assured that USAID will continue 
its tradition of seeking creative, forward-leaning strategies that will 
enable us to fulfill our disaster response mission of saving lives and 
reducing human suffering. It is a mission and responsibility we take 
quite seriously.

               Appendix: Summary of Selected Case Studies

                       zimbabwe complex emergency
    Since 2000, conditions for most Zimbabweans have deteriorated due 
to the country's collapsing economy, declining access to basic social 
services and staple food items, the effects of HIV/AIDS, and increasing 
political violence. Since the March 29, 2008, Presidential and 
legislative elections in Zimbabwe, heightened political tension has led 
to general insecurity and a growing incidence of targeted violence. 
Forces loyal to the ruling Zimbabwe African National Union--Patriotic 
Front (ZANU-PF) carry out attacks against perceived supporters and 
members of the opposition Movement for Democratic Change (MDC) party. 
The violent instability has created new displacement and humanitarian 
needs, compounding the complex emergency in the country.
    USAID has provided more than $58.3 million in humanitarian 
assistance thus far in FY 2008, focusing on agriculture and food 
security, relief commodities, protection, humanitarian coordination and 
information management, water, sanitation, and hygiene programs, as 
well as emergency food assistance.
    In addition to attacks on civilians, the post-election violence has 
resulted in severely restricted humanitarian access and working space. 
Since the elections, pro-Government of Zimbabwe (GOZ) groups have 
intimidated and threatened NGOs working in some areas, affecting the 
provision of emergency assistance and the implementation of regular 
programs. More recently, NGOs in Zimbabwe have faced increasing GOZ 
restrictions in the prelude to the second round of Presidential 
elections scheduled for late June 2008. On June 4, the Minister of 
Public Service, Labor, and Social Welfare ordered all NGOs working in 
Zimbabwe to suspend operations until further notice. These restrictions 
will affect aid programs that benefit more than 4 million Zimbabweans.
    In response to increased constraints imposed by the GOZ, U.S. 
Ambassador James D. McGee and USAID/Zimbabwe have requested that USAID 
send more staff to the field in marked vehicles to stay in close touch 
with our U.N. and NGO partners and demonstrate to the GOZ that the USG 
maintains a presence to the extent we can do so safely. In conjunction 
with other donors and NGOs, USAID has pushed the U.N. to take a more 
active role in advocacy on behalf of the humanitarian community and 
make a general statement about the lack of humanitarian access in 
Zimbabwe.
                        sudan complex emergency
    Sudan for decades has been one of the most difficult places in the 
world to mount emergency relief programs because of the immense scale 
of humanitarian need, the massive scope of population displacement, the 
distinct lack of infrastructure in parts of the country, the existence 
of ongoing conflict in some areas, and the regular cycle of 
obstructions on humanitarian efforts created by the Government of Sudan 
(GOS).
    For these reasons, the international community pushed for and 
achieved in 1989 a negotiated agreement, known as Operation Lifeline 
Sudan (OLS), in which the warring parties agreed to allow humanitarian 
assistance to reach conflict victims. OLS operated as a consortium of 
two U.N. agencies--UNICEF and the World Food Program--and some 35 NGOs. 
Although OLS was susceptible to consistent manipulation by all warring 
parties, particularly by the GOS, the operation managed to deliver huge 
amounts of food and nonfood relief commodities throughout the 1990s to 
populations in dire need, including to some of the most remote areas of 
Southern Sudan.
    Sudan continues to cope with the effects of conflict, displacement, 
and insecurity countrywide. Some of the same obstructions to assistance 
experienced in Southern Sudan during the 1980s and 1990s are being 
repeated in present-day Darfur. Since 2003, the complex emergency in 
Darfur has affected 4.2 million people, including more than 2.4 million 
IDPs. Fighting in Darfur among armed opposition factions, the Sudanese 
Armed Forces, militias, and ethnic groups is ongoing. Since January 
2008 alone, fighting has displaced more than 158,000 people within 
Darfur and to eastern Chad.
    The USG is the largest bilateral donor to Sudan and has contributed 
more than $3 billion for humanitarian programs in Sudan and eastern 
Chad since FY 2004. In FY 2008 alone, USAID/OFDA has provided 
approximately $37 million to more than 40 implementing partners in 
Sudan and eastern Chad. USAID coordinates humanitarian activities with 
the U.S. Department of State as well as the Office of the U.S. Special 
Envoy to Sudan. Despite current restrictions, USAID continues to 
encourage the Sudanese Government to allow greater access and freedom 
of movement within its borders.
    Sudan remains a difficult operating environment. Bureaucratic 
obstacles imposed by the Sudanese Government have impeded aid delivery 
in Darfur since the beginning of the crisis. These obstacles include 
extensive and cumbersome documentation of humanitarian activities, 
mandatory provision of confidential personnel information, multiple 
levels of required work agreements between various government entities 
and NGOs, and multiple levels of travel notifications and 
authorizations. In an important step to address these bureaucratic 
impediments, the Sudanese Government and the United Nations signed the 
Joint Communique on the Facilitation of Humanitarian Activities in 
Darfur in March 2007. The Joint Communique resulted in some 
improvements for humanitarian actors initially. However, the Sudanese 
Government continues to disregard articles of the Joint Communique. The 
Sudanese Government's actions violate both its commitment to respect 
the independence of humanitarian actors and its promise to respect the 
provision of assistance and freedom of access to all people in need.
    In addition, the Sudanese Government has begun to create new 
bureaucratic obstacles for humanitarian agencies, including requiring 
travel permits, denying such permits, mandating that NGOs write 
technical agreements in Arabic, repeatedly canceling meetings to 
address issues related to the Joint Communique, and requesting 
additional financial information from NGOs. For the past year, Sudan 
has blocked the use of processed food aid containing genetically 
modified organisms. This has restricted the USG from providing WFP with 
corn-soya blend, which is used mainly to treat malnourished children. 
The loss of this significant commodity contribution has stretched the 
already tight resources of WFP. In May 2008, humanitarian operations 
were further hindered after government officials temporarily closed all 
airports in Darfur to humanitarian traffic and U.N. flights. Regional 
road closures also deny humanitarian actors access to affected areas 
and the ability to deliver emergency assistance.
    Sudan continues to be a dangerous operating environment for USAID 
staff and implementing partners. Three USAID staff have been shot in 
Sudan since 2005, including the January 1 assassination of two USAID 
colleagues, John Granville and Abdul Rahman Abbas, in Khartoum. Darfur 
remains dangerous; since January 1, assailants have killed 6 
humanitarian staff, abducted nearly 100 relief workers, and hijacked 
125 NGO and U.N. vehicles in Darfur. In late May, the Sudanese 
Government committed to increase police escorts for humanitarian 
convoys to a frequency of every 24 or 48 hours. Although this move was 
welcomed by humanitarian actors, as of June 5, the Sudanese Government 
had not yet provided additional escorts, and food aid convoys continue 
to travel infrequently and unprotected.
    The absence of support and cooperation from the Sudanese Government 
makes humanitarian operations in Sudan more dangerous, more difficult, 
and more expensive for relief agencies to undertake. Despite increased 
impediments, USAID remains committed to carrying out the full range of 
humanitarian, recovery, reconstruction, and development activities that 
are vital to supporting efforts to consolidate peace throughout Sudan. 
We are proud of the courage and dedication of our staff and 
implementing partners to fulfill our humanitarian mandate in 
circumstances such as these. We look forward to the day when the people 
of Sudan are not substantially reliant on humanitarian aid for their 
very survival and we can work together with them to realize their 
aspirations for development and democracy.
                             burma cyclone
    Cyclone Nargis made landfall in Burma on May 2, 2008. The cyclone 
caused grave humanitarian conditions for more than 2.4 million people 
in Burma. It bears pointing out that the humanitarian crisis in Burma 
did not begin with the cyclone; malnourishment and endemic diseases 
affected many Burmese people long before the cyclone made landfall. The 
cyclone has not only compounded these problems, but created new ones, 
including urgent shelter assistance needs, lack of safe drinking water, 
and loss of livelihoods.
    The Burmese regime lacks the capacity to respond to the scale of 
the disaster and provide aid for its people. The regime refused life-
saving assistance in the critical days and weeks after the cyclone 
hit--the time period which can be the difference between life and 
death. In fact, the international community cannot confirm the exact 
number of deaths from the cyclone due to lack of access. Since May 16, 
the regime has not changed the official number of dead or missing, 
which remains at approximately 130,000 individuals. The regime has also 
hindered humanitarian access to some of the worst-affected areas of the 
Irrawaddy Delta. These obstructions have contributed to a situation in 
which only approximately half of the 2.4 million affected individuals 
have received humanitarian assistance and many of those who have been 
reached have very limited and basic assistance.
    Despite numerous challenges, the USG has provided life-saving 
assistance to the Burmese people by airlifting relief commodities, 
including more than $5 million worth of USAID items, to Rangoon, from 
where our partners secure the items for transport to the affected 
areas. The USG, through coordination between DOD and USAID's Disaster 
Assistance Response Team (DART), has completed more than 150 C-130 
sorties of emergency relief commodities from Bangkok, Thailand, to 
Rangoon, Burma. Prior to May 16, several DOD flights carrying USAID 
commodities were consigned to the Burmese regime in light of the urgent 
need to deliver assistance to affected areas immediately following the 
cyclone. Since that time, all USAID commodities are distributed by U.N. 
and NGO partners.
    In addition to providing relief commodities, USAID is continuing to 
fund emergency assistance programs. In fact, on June 5, USAID announced 
an additional $8.1 million in program funding for the relief effort in 
Burma. With this money, USAID has funded 13 U.N. and NGO partners 
working in the affected areas to implement programs in 10 sectors, 
including emergency health, shelter, food aid, and water, sanitation, 
and hygiene programs. These programs target more than 1 million 
beneficiaries throughout affected areas of Burma. USAID is confident 
the assistance will reach targeted beneficiaries because we provide 
direct funding only to NGO and U.N. implementing partners that have 
established relief operations in Burma, accountable monitoring 
mechanisms in place, knowledge of the operating environment and 
infrastructure, and memorandums of understanding with government 
authorities. As of June 12, the USG had provided more than $37.7 
million in humanitarian assistance to Burma, including $28.3 million 
from USAID and $9.5 million from DOD.
    At present, ongoing access problems pose the most serious obstacle 
to relief efforts. The U.N. Office for the Coordination of Humanitarian 
Affairs (OCHA) and the International Federation of Red Cross and Red 
Crescent Societies (IFRC) have repeatedly called for a detailed needs 
analysis in affected areas. A joint U.N.-ASEAN-Burmese assessment 
finally began June 10 and is expected to conclude June 19. The lack of 
information collection and sharing about the type and number of 
humanitarian needs, a direct result of limited access, hampers the 
relief operations of humanitarian organizations currently active in 
affected areas. These organizations have a long history of providing 
effective and comprehensive emergency assistance under different 
circumstances. Insufficient knowledge of the amount of assistance 
provided directly through the government and private sector within 
Burma, and where and to whom the relief aid has been distributed, 
further complicates efforts to adequately address assistance gaps.
    The most effective way for the U.N., NGOs, and donors to monitor 
the delivery of relief supplies and coordinate relief programs is to 
gain unhindered access to affected areas, particularly the delta. 
Additional obstacles preventing targeted assistance to those who need 
it most include the constant movement of affected populations and the 
regime's closing of some unofficial camps for persons displaced by the 
storm. Reports that the regime has forced some cyclone victims to 
return to their devastated communities are deeply troubling.
    Some progress has been made on the access front. As of June 9, the 
GOB had issued 179 visas to international U.N. staff, according to 
OCHA. The U.N. has not reported obstacles to visa procurement for U.N. 
staff, and as a result, the number of U.N. personnel arriving in Burma 
each week has remained static since mid-May. Even as the GOB has begun 
to open up to aid from international sources such as the Association of 
Southeast Asian Nations (ASEAN) and the U.N., the visa process for 
international NGO staff continues to move slowly, with some 
applications pending for up to 3 weeks. The GOB still has not 
communicated clear criteria for obtaining visas. NGOs also continue to 
report that GOB officials are prohibiting most international aid 
workers who enter the country from traveling beyond Rangoon to the 
affected areas. The process for obtaining a permit to travel to 
cyclone-affected areas takes at least 48 hours, often much longer.
    The USG continues to urge the Burmese regime to provide visas for 
international disaster experts and to allow those experts to access 
cyclone-affected areas. As you know, USAID deployed a Disaster 
Assistance Response Team to the area to assess the damage and 
coordinate the response, but the full team has not officially been 
given access. Nonetheless, USAID has been able to send in five 
technical specialists in shelter, logistics, water and sanitation, 
donor coordination, and a liaison with U.N., NGOs, and international 
organizations. These specialists are working with the U.N. and our NGO 
partners to oversee the USAID contribution to the Cyclone Nargis relief 
effort. The DART remains in Thailand working with DOD to coordinate USG 
assistance and participate in the U.N. Cluster system, which provides 
structure and lead organizations for each humanitarian sector. Without 
our full team on the ground in Burma, however, we have to work hard to 
identify gaps in assistance through third parties and rely on our years 
of expertise to make sense of what we are hearing. It is difficult to 
adequately assess needs and coordinate efforts with our international 
counterparts and local officials.
    Looking ahead, USAID intends to coordinate our assistance with the 
international humanitarian community and work with trusted NGOs with 
established relief operations in the affected areas. Despite the best 
efforts of the international community, however, the people of Burma 
urgently require additional humanitarian assistance. USAID stands 
prepared to provide our disaster expertise through deployment of our 
disaster specialists. This expertise, along with the humanitarian 
assistance so ably provided by our partners, can save more lives and 
alleviate the immense suffering of the Burmese people. To this end, 
USAID is working diligently to surmount the challenges posed by the 
GOB's unwillingness to permit our staff to enter the country. We look 
forward to the day when political considerations no longer affect or 
prevent the provision of humanitarian, life-saving assistance in Burma 
and elsewhere.
                            iran earthquake
    On December 26, 2003, a magnitude 6.6 earthquake struck 
southeastern Iran near the city of Bam. The quake killed more than 
26,000 people, injured 30,000 others, left 100,000 people homeless, and 
damaged and destroyed buildings and infrastructure. The Government of 
Iran (GOI) and IFRC affiliates possessed large disaster-response 
capacity. However, the magnitude of the event, aggravated by its 
occurrence near an urban area with extremely low earthquake resistance, 
overwhelmed local disaster response capacities.
    Following the earthquake, the USG offered humanitarian assistance 
to the GOI, and Iranian President Mohammad Khatami accepted. USAID 
deployed a Disaster Assistance Response Team (DART) comprising 7 
individuals from USAID; 11 people from Fairfax County's Urban Search 
and Rescue Task Force; and a 63-person USG international medical and 
surgical response team. The DART arrived in Iran on December 30 and 
conducted needs and structural assessments and coordinated assistance 
with the GOI, U.N. agencies, and NGOs. In total, the USG provided the 
people of Iran with five airlifts of relief commodities and other 
humanitarian assistance worth more than $10.4 million.
    The successful provision of U.S humanitarian assistance to Iran 
resulted from the combination of a number of factors, both political 
and opportunistic. The offer and acceptance of U.S. assistance occurred 
through the involvement of the U.S. and Iranian Ambassadors at the 
United Nations in New York, which recognized the need for humanitarian 
assistance transcended antagonism between the two countries. The 
emphasis on the humanitarian nature of the mission allayed fears that 
the interaction would be seen as politically motivated. In the field, 
the U.S. team avoided any activities or statements that might be 
misconstrued as political and instead only addressed technical aspects 
of the work.
    The ability of USAID/DART staff to travel locally on Iranian 
Revolutionary Guard aircraft and be hosted by Iranian authorities 
greatly eased the burdens on the DART.
    In short, USAID regards the humanitarian response to the Iran 
earthquake, which utilized all avenues of U.S. diplomacy to ensure that 
lives were saved and suffering was reduced, as an overall success.
    Mr. Chairman, this concludes my statement before you today. I 
welcome your questions.

    Senator Menendez. Thank you, both.
    Senator Hagel, the distinguished ranking member of the 
committee, do you have any comments you want to make?
    Senator Hagel. Mr. Chairman, thank you. I too welcome our 
witnesses and appreciate you holding the hearing. I will 
withhold any further comments until my opportunity presents 
itself to question. I do have a statement that I would ask to 
be included in the record.
    Senator Menendez. Without objection.
    Senator Hagel. Thank you.
    [The prepared statement of Senator Hagel follows:]

   Prepared Statement of Hon. Chuck Hagel, U.S. Senator From Nebraska

    Mr. Chairman, I want to thank you for holding this hearing today 
and welcome our distinguished witnesses.
    This hearing is an effort to explore the long-term consequences of 
international disaster assistance decisions and their impact on the 
sovereignty of nations.
    Recent discussions on these issues have revolved around the concept 
of the ``responsibility to protect'' . . . a doctrine that suggests if 
a host government fails to adequately protect its people, the 
international community has a responsibility to assist with the welfare 
of that country's people.
    The situation in Burma is a terrible travesty. With tens of 
thousands of people in Burma dead, up to 100,000 missing, and millions 
displaced, the refusal of the Burmese Government to accept foreign aid 
is shameful and a derogation of its responsibilities to protect its 
citizens. These events have brought into sharp relief this debate of 
sovereignty, intervention, and the welfare of victims. Many diplomats 
have called on the international community to invoke the 
``responsibility to protect'' doctrine to use force to compel the 
military junta there to accept aid for the hundreds of thousands of 
people in need.
    This however, is not a new debate. Since the modern nation-state 
system first emerged in the 17th century, these issues have often been 
at the center of international foreign policy. We only need to consider 
the events that have unfolded since 2003 in Iraq to understand that the 
decision to intervene militarily in a country carries broad, far-
reaching and unforeseen consequences.
    As the United States and the world community grapple with 21st 
century challenges, we must use all tools at our disposal. Humanitarian 
disasters, pandemic health crises and other challenges of a regional or 
global magnitude will require that the United States help build a 
consensus of common interests working toward common objectives.
    Today's hearing will continue consideration of these fundamental 
issues.

    Senator Menendez. Thank you, Senator Hagel.
    Let us do 7-minute rounds, and we will go from there.
    Thank you both for your testimony.
    This is a difficult topic and clearly I tried to frame it 
in the opening statement that, in fact, we understand it is a 
difficult topic, but it is one that I think we are destined to 
relive several times, unfortunately, moving in the future.
    And I appreciate, Mr. Warlick, the way you addressed it, 
but maybe because it is a difficult topic, somewhat gingerly 
addressed along the way. So let me try to pursue some--this is 
for the purpose truly of having a dialogue in which we move the 
ball forward. We are not going to have all the solutions today. 
But the purpose of the hearing is to put our arms around this 
and try to figure out where we are headed.
    You know, I heard what you said, but let me ask you. What 
is the State Department's view, for example, on the 
responsibility to protect? How far do we think that goes? What 
do we tell the U.N. from our perspective as to how far it 
should go? What are the confines? We know the three categories 
that I mentioned are there, but some of these incidents that we 
talked about most recently in these tragedies do not 
necessarily rise to those, although the intentionality of their 
governments' actions--some might argue--could lead to the 
description of crimes against individuals, if it is 
intentionally done and lives could have been saved. Give me a 
sense of what's your debate that is going on. What do you all 
say?
    Mr. Warlick. The responsibility to protect is an important 
emerging concept in the international community and one that we 
welcome. We accept it as a guiding principle.
    You have to recognize how this emerged. It came from a set 
of recommendations initially that were put forward to the 
Secretary General of the United Nations, then Kofi Annan, by an 
Eminent Person's Panel, and then came before a group of 191 
nations at that point in the World Summit Document in 2005. 
This is truly emerging and will be tested over time.
    I think it provides a framework for action but does not 
create in and of itself a legal obligation for the 
international community to act at all times and in all places. 
Those will have to be considered on an individual basis.
    I would like to just frame this a little bit more for you 
because I think the concept itself--there has really not been 
much said or written about it. Perhaps some of your private 
sector witnesses can go even further.
    I think what it highlights for the international community 
is really threefold.
    First, it underscores that in the first instance it is the 
responsibility of each individual state to protect its 
population from these atrocities and, in particular, the 
atrocities that were actually named in the World Summit Outcome 
Document.
    Second, the international community, through the United 
Nations, should be ready to use appropriate diplomatic, 
humanitarian, and other peaceful means to help protect affected 
populations from these atrocities. I think the fact that there 
is such a responsibility to protect does put a responsibility 
on the United Nations, as well as individual states in working 
through the United Nations in that regard.
    And finally, this is one of the most difficult parts of 
responsibility to protect. The international community must 
stand ready to take collective action through the U.N. Security 
Council acting under chapter VII of the U.N. Charter. And that 
is what I think we will need to work through as we confront 
problems in the future.
    We have worked successfully through the United Nations 
Security Council under chapter VI, which provides for the 
pacific settlement of disputes. And as I just noted, working 
through the international community on a cooperative basis is 
the preferred route, but there may be times when we will need 
to turn to chapter VII of the United Nations Charter and we 
will need to stand ready to compel states through the 
collective action of the international community through the 
Security Council.
    Senator Menendez. Clearly, there can be the recognition 
that a state is responsible for its citizens and there can be 
all of the diplomatic efforts, and those two can fail. The 
state may not choose to recognize or may not act upon its 
responsibility and all of those efforts fail. And then the 
question is when people are still dying, and at what point is 
there some collective responsibility that is acted upon?
    Mr. Warlick. Right. Unfortunately, Mr. Chairman, that puts 
us smack up against another aspect of the U.N. Charter, and 
that is respect for national sovereignty. We look at this as a 
very practical matter on a daily basis in the Security Council. 
There are many actions that we would like to take collectively 
and that we would like to move forward within the Security 
Council, but not all 15 members of the Security Council are 
agreed to move forward. And I think that we made extraordinary 
progress in a number of areas in that regard, but there is not 
one view on when collective action through chapter VII is 
necessary.
    Senator Menendez. Let me ask you in the case of Burma. 
Regional actors--you mentioned ASEAN. What is our view about 
when we, for some reason, cannot get entrance to provide 
humanitarian assistance because of some bilateral conflict or 
impediment? What is our view about using others who may be 
regional actors who have the ability to do so because they do 
not have the same impediments?
    Mr. Warlick. Let me cover the political side of that 
question. I think that is a very good example of where the 
international community has used a multitiered approach. We are 
making currently a concerted effort to deliver bilateral 
assistance. There are NGOs that are working through Thailand 
and in other ways to provide assistance to the people of Burma.
    We have a new mechanism that includes the United Nations 
cooperating with ASEAN to ensure that aid gets to the most 
number of people. Now, I will leave it to Jim to comment on how 
effective that has been, but I think that when we are looking 
at how to deliver assistance, as a political issue, we ought to 
be looking at this kind of multitiered approach and I think 
increasingly looking at regional organizations such as ASEAN.
    Senator Menendez. Jim, has it worked in this particular 
case?
    Mr. Kunder. Pardon me, sir?
    Senator Menendez. Is the use of ASEAN a good example of 
something that has worked?
    Mr. Kunder. I think there are much better examples where we 
have used--for example, in Sudan, as difficult as that 
situation has been, over the years, I think U.S. assistance has 
saved millions of lives in the context of what was negotiated 
in the 1990s, so-called Operation Lifeline Sudan, which was 
negotiated through the U.N. agencies with the other bilateral 
donors. And it is something between just standing off and doing 
nothing and sending military forces into Sudan. It certainly 
infringed, to some degree, on Sudanese sovereignty. It has not 
been without its warts, but it has been a kind of collective 
response that drew both the rebels in the south and the 
Sudanese Government into an arrangement that allowed us to 
deliver assistance. In Burma, we have been willing to work 
through ASEAN or any of the other bilaterals, the Indians, the 
Thais, working in the area.
    So we are willing to try anything, but that is what I tried 
to point out in my testimony. I think there are some of these 
intermediate structures that try to bridge the gap between 
forcing your way in under chapter VII and just standing off and 
watching people die.
    Senator Menendez. Senator Hagel.
    Senator Hagel. Mr. Chairman, thank you.
    Mr. Kunder, you noted toward the end of your testimony 
that, as you said, what comes next, consequences that you would 
be happy to go into some detail to discuss those specifics. Let 
me take my time for questioning, at least in this round, to ask 
you to define that and go a little deeper into that detail 
because I think you have framed and centralized the real issue 
here as to how far you do go and where do you reach a point of 
diminishing returns and what are consequences and what are 
long-term effects.
    Mr. Kunder. Specifically with regard to Somalia, sir?
    Senator Hagel. Well, no; not specific to Somalia. In this 
same frame of reference that you offered it in your testimony, 
I think the larger context of what we are talking about, what 
the hearing is about.
    Mr. Kunder. Yes, sir.
    Senator Hagel. Thank you. If you care to use Somalia as an 
example, that is fine. Thank you.
    Mr. Kunder. Yes, sir.
    In general, we are able--as I mentioned, 355 disaster 
responses, every one of them declared by a United States 
Ambassador over the last 5 years. And in most of those we send 
in a shipment of relief supplies from the Office of Foreign 
Disaster Assistance. They were gratefully received.
    Then you get into the gradations where people are hesitant 
to accept U.S. assistance and we turn to our State Department 
colleagues, the ambassador on the ground, to negotiate 
something.
    And then you move up the scale to those where they do not 
want U.S. assistance, branded American flags or hand-clasp 
symbols on the bags of grain. So we are willing to work through 
UNICEF, the World Food Program, CARE, Save the Children, World 
Vision, intermediate organizations, including something like 
ASEAN.
    And then you move your way up to looking at cross-border 
operations or the kind of thing I mentioned in Sudan, Operation 
Lifeline Sudan, a diplomatic agreement that has to be 
negotiated with the host government in order to get relief 
supplies in, and then finally up to things that potentially 
violate sovereignty. They are not particularly effective, like 
air drops which we used in Bosnia. We have analyzed the air 
drops in Bosnia into Srebenica and the various enclaves very 
carefully. A lot of them fell into the Serb lines. A couple of 
them killed people coming down. It is a notoriously 
ineffective, cost ineffective way to do it.
    And then all the way up to something like Somalia. I mean, 
we made the calculus at USAID in those days that the situation 
was so horrible there was no effective government with which to 
negotiate in Somalia. We had the capability to respond, and so 
we recommended to our State Department colleagues at that time 
support of a chapter VII intervention.
    Now, when I say what happens next, having literally been on 
the ground at that time, within weeks of U.S. troops securing 
Somalia, we were able to set up the humanitarian supply lines 
and essentially return death rates to normal in Somalia. So I 
do not think there is any question at that point that you can 
solve the immediate humanitarian crisis.
    But if you then contemplate what happens next, if you 
simply pull out, the chances are excellent that whatever caused 
the problem initially will simply take over, whether it is 
political instability or warlordism, a government that does not 
care about its people. So I think you are tempted then to take 
on the transitional issues that come next, which is what we 
were tempted to do in Somalia, to address the underlying chaos 
that caused the famine in the first place. And I am just saying 
once you get into that stage, then you run into the full series 
of political, security, and diplomatic questions that you run 
into in those kind of circumstances. How long are we going to 
stay? Are we going to rebuild the government? Are we going to 
do nation-building and all the rest of them? And those, I do 
not have to tell the committee, are a very complex, long-term 
series of solutions.
    So that's how I see the progression between a simple 
humanitarian operation and to a long-term political 
intervention that tries to address the underlying causes of the 
crisis in the first place. Burma is a clear-cut example of 
that. I mean, there were no physical or logistical impediments 
to us meeting the problem. It was the government. So if we 
forced ourselves into Rangoon airport, then what comes next? We 
could have clearly set up convoys. We could have set up 
distribution systems. We could have solved that immediate 
problem.
    Then we would have driven past Aung San Sui Kyi's house. Do 
we then do something about that, or do we just pull up at the 
end of it and leave?
    And you certainly raise the question in those kind of 
situations whether you are setting up the recipients of aid for 
some kind of retribution by their government afterward. I mean, 
it is a very complex calculus, as the chairman said earlier.
    Senator Hagel. Thank you.
    Mr. Warlick, would you like to add anything to this 
discussion?
    Mr. Warlick. I would like to come back to Somalia because 
this is a very interesting case historically and prospectively. 
Here we have a real challenge for the international community 
ahead of us. It is not a humanitarian disaster today, but it 
could be in the future. The transitional federal government is 
weak by anyone's standards and struggling to gain breathing 
space in a country that has been chaotic. The United States 
Government is not represented in Somalia today with an embassy 
presence. Only a few nongovernmental organizations are 
operating there. There is a U.N. mission, but it cannot operate 
on Somali soil.
    What tools do we have available for us? And we are working 
this through right now. I would say from the United Nations' 
perspective, in order to avoid what could be a humanitarian 
disaster in the future, we are looking at a number of options.
    One, for example, the Security Council was just able to 
pass a resolution on piracy in the waters off of Somalia. It 
allows foreign ships to enter Somalia's territorial waters to 
protect shipping lanes. That provides the ability of the World 
Food Program to provide humanitarian assistance, but also 
normal commerce.
    We are looking at peacekeeping operations. There has not 
yet been a determination either in the U.S. Government or in 
the Security Council to deploy a peacekeeping operation through 
the United Nations in Somalia. We are studying what options are 
available and are working with the United Nations today. We 
believe that that kind of presence will be necessary in order 
to provide the stability that could guard against a 
humanitarian disaster in the future.
    I mention these because the situation in Somalia is 
particularly complex and we need to come at it from a number of 
different respects. And there is not going to be one silver 
bullet in this regard that is going to work. Also, success is 
going to come incrementally. This resolution on piracy is not 
going to solve the difficulties that the transitional federal 
government faces, but it will be one element of the actions 
taken by the international community bring about some measure 
of stability. And I think we are going to have to look at 
humanitarian situations in the future in that regard and come 
at them from a number of different perspectives.
    Senator Hagel. Thank you, Mr. Chairman.
    Senator Menendez. Thank you, Senator Hagel.
    Senator Feingold.
    Senator Feingold. Thanks, Mr. Chairman, for holding this 
important hearing.
    And I would like to turn, for a few minutes, to sub-Saharan 
African questions. The Horn of Africa. We are already getting 
into that a bit where instability looms large and relief is, 
unfortunately, too little and in many cases too late. As you 
both know, the Ogaden--also known as the Somali region of 
Ethiopia--has been a low intensity battleground between the 
Ethiopian Government and insurgents for more than a year now. 
As a result of the conflict, food prices have shot up and 
livestock trade has all but collapsed, bringing an already 
embattled population to the brink of famine.
    Given the situation in the Ogaden, Mr. Kunder, I would like 
to ask you to address allegations that have surfaced recently 
regarding the Ethiopian Government's manipulation of food 
distribution in the Ogaden. First, can you confirm these 
allegations and, second, what needs to happen to improve the 
situation?
    Mr. Kunder. Just to correct one thing, if I could, Mr. 
Feingold. We technically do have a disaster in Somalia right 
now. We are, in fact, providing about $30 million worth of 
assistance to Somalia.
    We are providing humanitarian assistance in the Ogaden as 
well. It is clearly a chaotic situation. Clearly, there are 
military operations taking place in there right now, and a 
number of the NGOs have pointed out to us the difficulty of 
working in an environment where there are ongoing military 
operations. I will have to defer to Jim on this. I do not know 
that our Government has confirmed what you alleged, you know, 
interference by the Ethiopian military forces. But clearly, it 
is a chaotic situation. Clearly, it is very difficult to 
provide humanitarian assistance there, and we are trying to 
support the NGOs who are on the ground.
    Senator Feingold. Do you want to talk about that for a 
minute, Mr. Warlick?
    Mr. Warlick. I can speak to the issue between Ethiopia and 
Eritrea, which is one of concern to the----
    Senator Feingold. Well, I have asked about the Ethiopian 
Government's manipulation of food distribution in the Ogaden. 
That is what I asked you to respond to.
    Mr. Warlick. I am not in a position to respond to that 
question.
    Senator Feingold. All right. Well, I think you would agree, 
Mr. Kunder, that the humanitarian situation in the Ogaden 
continues to be extremely severe.
    Mr. Kunder. Yes, sir.
    Senator Feingold. Is the U.S. Government satisfied that the 
Government of Ethiopia is doing what needs to be done to ensure 
that assistance is provided to civilian populations instead of 
being used as a tool to further a political agenda?
    Mr. Kunder. We continue directly and through our diplomatic 
team in Adis Ababa to try to continue to pressure the Ethiopian 
Government to cooperate in the humanitarian operations. I would 
like to see it even better than it is now.
    Senator Feingold. When a government fails to provide for 
its people, as is the case in the Ogaden, what bilateral and 
multilateral tools do we have at our disposal to address this 
problem--both short term and long term?
    Mr. Kunder. I tried to list in my testimony nine different 
approaches. Certainly we are doing the basic ones in the 
Ogaden. We are diplomatically discussing the situation with the 
Ethiopian Government. We are using the NGOs that are on the 
ground. We have had some particular issues lately that have 
been reported in the media where the Ethiopian Government is 
suggesting placing some additional taxes on NGOs operating 
throughout Ethiopia. We have assiduously over the years 
resisted the notion that U.S. taxpayer dollars should be taxed 
when they're trying to save people's lives. So our Ambassador 
on the ground is working with the Ethiopian Government to see 
if we cannot eliminate that counterproductive proposal.
    We are willing to support the U.N. agencies on the ground, 
and we are trying to decentralize the distribution system so 
that we can get more supplies out to those who are in desperate 
need.
    But I do not want to pretend to put a smiley face on the 
thing, Senator Feingold. It is really one of the more 
difficult. As you probably know, I mean, the Ogaden is an 
extraordinarily inaccessible region. It has been the source of 
ethnic conflict for decades. We are providing substantial 
humanitarian relief, but it is tough going and we need to do a 
better job there.
    Senator Feingold. Across the border from Ethiopia, in 
neighboring Somalia, the situation is even worse, as has been 
alluded to. Decades of conflict have left the country with a 
barely functioning central government and brought much of the 
population close to the brink of famine. These problems are 
compounded by the fact that Somalia continues to be a 
permissive environment and safe haven for both Somali and 
foreign terrorists.
    Mr. Kunder and Mr. Warlick, how do these serious national 
security concerns factor into our decisionmaking when it comes 
to providing both bilateral and multilateral disaster 
assistance, and how is the current disaster assistance 
framework set up to handle these critical issues in some kind 
of tandem?
    Mr. Kunder. I mentioned earlier, sir, that we have tried a 
number of different frameworks. I mentioned the Operation 
Lifeline Sudan also in the Horn where we have done a multisided 
negotiation with the Government of Sudan and with the former 
rebels in order to try to get relief supplies in. So there are 
a number of these kinds of intermediate steps. We have tried 
so-called corridors of tranquility, days of tranquility for 
immunization activities. There are a number of pretty well-
honed international techniques to try to operate in war zones 
like we found in the Horn of Africa, certainly cross-border 
operations from Kenya into Southern Sudan and into Somalia.
    I think of this set of issues, probably the single most 
difficult is the one that we encounter in Somalia where you do 
not have an effective government with which to negotiate these 
kinds of arrangements. I mentioned, I think right before you 
came in, that in 1992 I had Mr. Ky Luu's job at that time as 
Director of the Office of Foreign Disaster Assistance, and we 
strongly advocated a military intervention in Somalia at that 
time. But when you do not have a functioning government, it 
makes it particularly complex.
    There are a number of courageous U.N. agencies, as Jim 
said, and NGOs that are working on the ground in Somalia. We 
have supported them to the tune of $30 million. We have saved 
some lives, but that is probably the single most complex 
situation we face right now because of the lack of a 
government.
    Senator Feingold. Mr. Warlick.
    Mr. Warlick. Failed states, there is no question, are a 
threat not only to the people of that country in terms of being 
able to deliver humanitarian assistance, but also a threat to 
international peace and security and, by that definition, an 
issue that could be taken up in the Security Council.
    In the case of Somalia, that is precisely the case. It is 
an issue with which the Security Council is seized. It is one 
that we will be coming back to and working on diligently not 
just with Member States of the Security Council, but also with 
the U.N. Secretariat and operational agencies. For the 
operational agencies, it is the delivery of humanitarian 
assistance. But on the political side, through the Secretary 
General and his staff, ensuring that there are conditions to 
provide for an international presence, including the 
possibility of an international peacekeeping presence, which we 
believe could address some of those issues of stability and 
potentially prosperity.
    Senator Feingold. Thank you both. Thank you, Mr. Chairman.
    Senator Menendez. Thank you, Senator Feingold.
    Let me go through another round here if members have other 
questions. I know I have a couple that I want to pursue.
    Mr. Warlick, you said, and rightly so, that the predicate 
for a chapter VII action is a determination by the U.N. that 
the situation presents a threat to international peace and 
security. But it is possible to envision a humanitarian 
catastrophe in which not necessarily the international peace or 
security are challenged. You could have a regime that is in 
full control of a country for which there is no spillover of, 
let's say, refugees into a neighboring country. And so, 
therefore, international peace and security, at least as I 
think those are defined, would certainly not even be subject to 
a debate of a chapter VII action. How do we envision dealing 
with those sets of circumstances?
    Mr. Warlick. This is an issue for discussion within the 
Security Council. It is very difficult to make a case in this 
modern world that the decisions of a sovereign government do 
not have an impact outside that country's borders. We can make 
a case, and we have in the case of Burma, that the actions of a 
military regime within its borders has an effect on 
international peace and security in the region.
    The trick is, though--and it is difficult. Within the 
Security Council, we do need to persuade other members of the 
Council that in fact this is a legitimate subject for the 
Security Council to take up. In the case of Burma, it was a 
difficult discussion, but in fact, Burma is on the formal 
agenda.
    In the case of Zimbabwe, we are today making that case that 
what is happening within the borders of Zimbabwe today does 
pose a threat to the region. In fact, the Secretary of State 
will be in New York this Thursday and will be hosting, together 
with the Foreign Minister of Burkina Faso, a roundtable that 
includes members of the Security Council and African states, as 
well as regional organizations, specifically on the issue of 
Zimbabwe to send the message that the actions taken by the 
government and, in particular, President Mugabe have an effect 
well beyond the formal borders of that state.
    Senator Menendez. Well, let me ask you, since you are 
talking about Zimbabwe. I do have a specific question in that 
respect. Recently the U.S. Ambassador in Zimbabwe said that 
authorities confiscated a truck loaded with 20 tons of American 
food assistance for school children and ordered that the food 
be handed out to supporters of President Mugabe at a political 
rally. Is that the facts as we know them?
    Mr. Warlick. I defer to Jim on this.
    Mr. Kunder. To the best of my knowledge, that event 
occurred, yes, sir.
    Senator Menendez. Is that part of what we are addressing, 
not the specific incident, but the broader access to food and 
supplies to people in Zimbabwe as part of what you describe as 
being pursued at the U.N.?
    Mr. Warlick. We will be addressing in that roundtable a 
number of issues beginning with the call for free and fair 
elections in Zimbabwe for the runoff on June 27. But the larger 
issue is one of good governance which does, in fact, have an 
impact on our ability to provide humanitarian assistance.
    Senator Menendez. Mr. Kunder, is there any doubt that 
people died in Burma because of the government's delay?
    Mr. Kunder. I think there is very little--we have grappled 
with our best models on how many people might have died, but I 
think the way you asked the question, sir, there is very little 
doubt that some people died whose lives could have been saved 
because of the Government of Burma's actions.
    Senator Menendez. And quantifying that is our challenge?
    Mr. Kunder. Well, there are, as you said, over 2 million 
affected people.
    Senator Menendez. There are people who died simply because 
of the disaster in and of itself, but the government's delay is 
what I'm trying to----
    Mr. Kunder. Yes, sir. That is what I am trying to say. We 
have analytical models to try to look at this kind of thing, 
and it is very difficult because for the very reason that we 
have not had the full access to all parts of the Irrawaddy 
Delta. But I think I would feel comfortable in saying that the 
number would have run into the thousands.
    Senator Menendez. Of people who died because of the 
government's lack of----
    Mr. Kunder. Well, I mean, people were in fragile 
conditions--we don't know that precisely because we were not 
able to get on the ground. But in normal circumstances, people 
who have been through the kind of trauma that occurred when 
there is that kind of cyclone and then exposed to the elements 
and unsafe drinking water, you would expect that a certain 
percentage of the population, especially children, would die 
under those circumstances. And I would expect that number--I 
cannot give you a hard number, but I would guess that number 
would be in the thousands.
    Senator Menendez. I appreciate that. My goal here is to try 
to simply suggest that as we think about this, when does a 
certain number reach a threshold? For me, every life is sacred. 
But at the end of the day, is it 100? Is it 1,000? Is it 5,000? 
Is it 10,000? Where is the threshold in which we say, not only 
the United States but the world says, well, now this government 
is acting in a way that far supersedes what--for which action 
dictates? It is like when we say, never again, and then we sit 
back and see people slaughtered. So I am just wondering where 
are our lines here of determination as to what will invoke.
    One last question: I understand that the Burmese Government 
briefed you and humanitarian organizations on guidelines to 
follow to provide assistance. Can you characterize those 
briefings and what guidelines did the Burmese Government lay 
out in order for the assistance to be delivered?
    Mr. Kunder. Those guidelines had to do with international 
staff being restricted initially at least to the greater 
Rangoon area, use of Burmese Government agents to actually hand 
out supplies and so forth.
    And by the way, sir, that is one of the questions in the 
larger philosophical question you asked. It is one of the 
questions we always grapple with. If the question is getting 
necessary lifesaving supplies into the hands of the people, 
what degree of cooperation are you willing to accept with a 
regime that you would not otherwise want to be dealing with?
    The question came up very early on in terms of who would be 
the consignee of the relief supplies. When we are entrusted 
with taxpayers' dollars, we make somebody sign for whatever 
plastic sheeting or other supplies we deliver, and initially 
our preference would always be to turn it over to a reputable 
international organization or NGO. And the first flights that 
went in were consigned to the Burmese Government with the 
expectation that once we got the dialogue going, we would be 
able to wedge open humanitarian space. And that is why I 
reported that today 100 percent of what USAID is sending in is 
being consigned to well known international NGOs or U.N. 
agencies. But those were the nature of the guidelines early on, 
and we made the conscious decision to accept those guidelines 
early on with the hope that we would then wedge open 
humanitarian space and do it right. And as I reported, we have 
been partially successful in that.
    Senator Menendez. Thank you both for the testimony. We 
broke a little ice here. We will continue to pursue this in the 
future. We appreciate your testimony before the committee. 
There may be questions submitted in writing to you by other 
members, and we would appreciate your prompt response to those.
    And as we thank you, let me ask the second panel to join 
us. We have a distinguished second panel of witnesses joining 
us today: Dr. Edward Luck, who is the Special Adviser to the 
Secretary General at the United Nations; Mr. Mark Schneider, 
who is the senior vice president at the International Crisis 
Group; and last, Dr. Stewart Patrick, the senior fellow and 
director of the Program on International Institutions and 
Global Governance at the Council on Foreign Relations.
    We welcome you all. We ask, in the interest of being able 
to pursue a dialogue, that you keep your testimonies to 7 
minutes. Your entire written testimony will be included for the 
record, and let me start off with Dr. Luck and move down the 
panel.
    Dr. Luck.

    STATEMENT OF DR. EDWARD C. LUCK, SPECIAL ADVISER TO THE 
        SECRETARY GENERAL, UNITED NATIONS, NEW YORK, NY

    Dr. Luck. Thank you, Mr. Chairman, for the opportunity to 
brief this distinguished subcommittee on the concepts, 
principles, norms, and practices that have guided the response 
of the United Nations to the immense human tragedy that has 
unfolded since Cyclone Nargis struck Myanmar on the 2nd and 3rd 
of May.
    At the outset, let me express the standard caveat of an 
international civil servant briefing a Member State Parliament. 
In accordance with past practice, my attendance today before 
the subcommittee is on a purely informal basis, and nothing in 
my oral remarks or written briefing statement should be 
understood to be a waiver, express or implied, of the 
privileges and immunities of the United Nations or its 
subsidiary organs under the 1946 Convention on the Privileges 
and Immunities of the United Nations.
    That said, today I will address three issues that have 
generated widespread public interest and media commentary, 
along with no little confusion and misunderstanding: One, the 
evolving notion of the responsibility to protect and why it 
does not appear to apply to this particular situation; two, 
other principles, practices, and norms that do seem to be 
highly relevant to this case; and three, why the U.N. was able 
to respond vigorously and decisively to these events without 
explicit action by the Security Council. In the interest of 
time, I will abbreviate my oral statement, particularly on the 
second point.
    As adopted unanimously by the 2005 World Summit and by 
subsequent resolutions of the General Assembly and the Security 
Council, the responsibility to protect, R2P, rests on three 
pillars: First, an affirmation of the primary and continuing 
legal obligations of states to protect their populations from 
genocide, war crimes, ethnic cleansing, and crimes against 
humanity and from their incitement; second, a commitment by the 
international community to assist states in meeting these 
obligations; and third, an acceptance by Member States of their 
responsibility to respond in a timely and decisive manner, in 
accordance with the U.N. Charter, to help protect populations 
from the four listed crimes and violations. ``Populations'' 
includes all persons on a state's territory.
    The emphasis, therefore, is on state responsibility, to be 
bolstered by international assistance. The concept of R2P, 
moreover, is not intended to detract in any way from the much 
broader range of obligations under existing international 
humanitarian and human rights law, refugee law, and 
international criminal law.
    As defined by the summit--and the U.N. must be guided by 
the collective decisions of its Member States, not by the 
pronouncements of independent commissions or commentators or 
the views of individual Member States--R2P does not encompass 
other dire threats to populations, such as climate change, HIV/
AIDS, or the effects of natural disasters. These need to be and 
are being addressed in other ways.
    To be conceptually coherent, operationally sound, and 
politically sustainable, the scope of R2P should remain narrow 
and closely tied to the four listed crimes and violations 
unless and until the Member States decide otherwise. To help 
prevent such mass atrocities would be a cardinal achievement in 
the evolution of human rights. We should take care not to 
undermine the historic but fragile international consensus 
behind the responsibility to protect by succumbing to the 
temptation to stretch it beyond what was intended by the heads 
of state and government assembled at the U.N. almost 3 years 
ago.
    While the scope of R2P should remain narrow, the range of 
tools for implementing it, whether by the U.N., its regional, 
subregional, and civil society partners, or Member States, runs 
deep. Its programmatic dimensions include: One, capacity-
building and rebuilding; two, early warning and assessment; 
three, timely and decisive response; and four, collaboration 
with regional and subregional arrangements. The stress is on 
prevention and building the capacity of states to resist 
turning to the path of genocide, war crimes, ethnic cleansing, 
and crimes against humanity.
    R2P's conceptual foundation is ``sovereignty as 
responsibility,'' not humanitarian intervention. This is a far 
broader, richer, and more pragmatic notion than coercive 
humanitarian intervention. R2P seeks to help states to succeed, 
not just to react when they fail. It makes no sense, either 
morally or politically, to limit one's policy options to 
standing by or sending the Marines. The first is unacceptable 
and the second unlikely.
    As the summit's Outcome Document acknowledged, there may be 
times when the only way to protect hundreds of thousands of 
people at risk is through enforcement measures, whether 
economic, military, or political, under chapter VII of the U.N. 
Charter. In such cases, R2P does not alter, indeed it 
reinforces, the legal obligation of Member States not to use 
force except in conformity with the charter. Absent agreement 
on the use of coercive measures, there are a range of 
noncoercive instruments available to the U.N. under chapters VI 
and VIII of the charter to advance prevention and protection 
goals, as stressed in the summit's Outcome Document.
    In my view, a government's unwillingness to facilitate the 
delivery of international humanitarian assistance to its people 
in the aftermath of a major natural calamity may be 
reprehensible, morally repugnant, and contrary to a number of 
well-established international principles, standards, and 
norms. How to respond to such a situation deserves further 
discussion.
    However, a state's recalcitrance is unlikely to constitute 
one of the four crimes and violations agreed at the 2005 summit 
to fall under the responsibility to protect umbrella. There has 
been some speculation in the press about whether such action or 
inaction could be considered to be a crime against humanity. 
That would require, however, crimes such as murder or 
extermination committed as part of ``a widespread or systematic 
attack'' against the civilian population.
    The international community, it should be underscored, need 
not invoke R2P to justify a vigorous response to such a large-
scale loss of life due to a state's indifference or incapacity. 
There are other sets of relevant principles, practices, and 
norms, including those concerning humanitarian assistance, 
internally displaced persons, and human rights. While I address 
these at some length in my written statement, I will delete the 
details now in the interest of time.
    Now, in terms of the U.N. response, some commentators have 
suggested that the U.N. is powerless when facing such 
obstruction unless the Security Council, including its veto-
bearing five permanent members, can agree on forceful action. 
The response to Cyclone Nargis, however, suggests otherwise. 
The world body responded rapidly to the crisis on several 
levels and in several ways. Secretary General Ban Ki-moon 
employed his bully pulpit, his good offices, and, finally, his 
personal diplomacy to help persuade the authorities in Myanmar 
to take a more open approach to international efforts to aid 
the cyclone victims.
    Sir John Holmes, the U.N.'s Emergency Relief Coordinator, 
was on the ground in the region early and for an extended 
period, pressing the authorities to change their attitudes, 
helping to organize the international aid effort at both the 
field and headquarters levels, and keeping the world informed 
and the regime under global public scrutiny.
    A range of U.N. agencies and their national and civil 
society partners marshalled and delivered aid and technical 
assistance to the extent that the Myanmar authorities would 
permit. While much, much more needs to be done and the pressure 
needs to be sustained, it is estimated that 1.3 million victims 
have now been reached by the international aid effort and the 
Red Cross/Red Crescent movement, in addition to those reached 
by national efforts. Notably, some reports suggest that U.N. 
assistance has been more readily accepted than that from most 
other sources, perhaps because of the world body's political 
impartiality and reputation for technical expertise in disaster 
relief. As the Secretary General stressed on the 12th of May, 
``This is not about politics. It is about saving people's 
lives. There is absolutely no time to lose.''
    The United Nations was able, in addition, to partner with 
ASEAN in organizing the pledging conference in Yangon on 25 May 
for international cyclone relief and with the government and 
ASEAN to conduct a major new assessment. The latter, which is 
underway as I speak, matters given the lack of reliable 
statistics to guide the relief effort.
    Despite all of these efforts, this remains a tragic 
situation in which the enormous human costs of a natural 
calamity have been compounded by human error and intense 
political suspicion. As Secretary General Ban Ki-moon commented 
in Yangon on 25 May, ``We have a chance for a new beginning 
today. I ask all of us to keep our eye firmly on the immediate 
objectives--saving lives--guided by the principles of 
neutrality, impartiality and our common humanity.''
    Some day, historians and policy analysts will ask whether 
armed intervention would have been a better course. My guess is 
that they will note that the application of coercive measures 
by definition is not impartial, that turning a humanitarian 
disaster into a military confrontation does nothing to save 
lives, and that, despite some tough talk, none of the military 
powers was prepared this time to use its forces for such a 
mission in any case. As an academic, I must say it was only an 
academic discussion. In the end, however, they may well 
acknowledge that, in its quiet ways, the U.N. did indeed make a 
positive difference in Myanmar, as it has in so many other 
places over so many years.
    Thank you.
    [The prepared statement of Dr. Luck follows:]

  Prepared Statement of Dr. Edward Luck, Special Adviser to the U.N. 
            Secretary General, United Nations, New York, NY

    Thank you, Mr. Chairman, for the opportunity to brief this 
distinguished subcommittee on the concepts, principles, norms, and 
practices that have guided the response of the United Nations to the 
immense human tragedy that has unfolded since Cyclone Nargis struck 
Myanmar on the 2nd and 3rd of May. At the outset, let me express the 
standard caveat of an international civil servant briefing a Member 
State Parliament. In accordance with past practice, my attendance today 
before the subcommittee is on a purely informal basis, and nothing in 
my oral remarks and written briefing statement should be understood to 
be a waiver, express or implied, of the privileges and immunities of 
the United Nations or its subsidiary organs under the 1946 Convention 
on the Privileges and Immunities of the United Nations.
    Today I will address three issues that have generated widespread 
public interest and media commentary along with no little confusion and 
misunderstanding: One, the evolving notion of the responsibility to 
protect and why it does not appear to apply to this particular 
situation; two, other principles, practices, and norms that do seem to 
be highly relevant to this case; and three, why the U.N. was able to 
respond vigorously and decisively to these events without explicit 
action by the Security Council.
                       responsibility to protect
    As adopted unanimously by the 2005 World Summit and by subsequent 
resolutions of the General Assembly and the Security Council, the 
responsibility to protect (R2P) rests on three pillars:

--First, an affirmation of the primary and continuing legal obligations 
    of states to protect their populations from genocide, war crimes, 
    ethnic cleansing, and crimes against humanity, and from their 
    incitement;
--Second, a commitment by the international community to assist states 
    in meeting these obligations; and
--Third, an acceptance by Member States of their responsibility to 
    respond in a timely and decisive manner, in accordance with the 
    U.N. Charter, to help protect populations from the four listed 
    crimes and violations. ``Populations'' includes all persons on a 
    state's territory.

The emphasis, therefore, is on state responsibility, to be bolstered by 
international assistance. The concept of R2P, moreover, is not intended 
to detract in any way from the much broader range of obligations 
existing under existing international humanitarian and human rights 
law, refugee law, and international criminal law.
    As defined by the summit--and the U.N. must be guided by the 
collective decisions of its Member States, not by the pronouncements of 
independent commissions or commentators or the views of individual 
Member States--R2P does not encompass other dire threats to 
populations, such as climate change, HIV/AIDs, or the effects of 
natural disasters. These need to be, and are being, addressed in other 
ways. To be conceptually coherent, operationally sound, and politically 
sustainable, the scope of R2P should remain narrow and closely tied to 
the four listed crimes and violations unless and until the Member 
States decide otherwise. To help prevent such mass atrocities would be 
a cardinal achievement in the evolution of human rights. We should take 
care not to undermine the historic but fragile international consensus 
behind the responsibility to protect by succumbing to the temptation to 
stretch it beyond what was intended by the heads of state and 
government assembled at the U.N. almost 3 years ago.
    While the scope of R2P should remain narrow, the range of tools for 
implementing it--whether by the U.N., its regional, subregional, and 
civil society partners, or Member States--runs deep. Its programmatic 
dimensions include (1) capacity-building and rebuilding, (2) early 
warning and assessment, (3) timely and decisive response, and (4) 
collaboration with regional and subregional arrangements. The stress is 
on prevention and building the capacity of states to resist turning to 
the path of genocide, war crimes, ethnic cleansing, and crimes against 
humanity.
    R2P's conceptual foundation is ``sovereignty as responsibility,'' a 
far broader, richer, and more pragmatic notion than coercive 
humanitarian intervention. R2P seeks to help states succeed, not just 
to react when they fail. It makes no sense, either morally or 
politically, to limit one's policy options to standing by or sending 
the Marines. The first is unacceptable and the second unlikely. As the 
Summit's Outcome Document acknowledged, there may be times when the 
only way to protect hundreds of thousands of people at risk is through 
enforcement measures--whether economic, military, or political--under 
chapter VII of the U.N. Charter. In such cases, R2P does not alter, 
indeed it reinforces, the legal obligation of Member States not to use 
force except in conformity with the charter. Absent agreement on the 
use of coercive measures, there are a range of noncoercive instruments 
available to the U.N. under chapters VI and VIII of the charter to 
advance prevention and protection goals, as stressed in the Summit's 
Outcome Document.
    In my view, a government's unwillingness to facilitate the delivery 
of international humanitarian assistance to its people in the aftermath 
of a major natural calamity may be reprehensible, morally repugnant, 
and contrary to a number of well-established international principles, 
standards, and norms. How to respond to such a situation deserves 
further discussion. However, a state's recalcitrance is unlikely to 
constitute one of the four crimes and violations agreed at the 2005 
summit to fall under the responsibility to protect umbrella. There has 
been some speculation in the press about whether such action or 
inaction could be considered to be a crime against humanity. That would 
require, however, crimes such as murder or extermination committed as 
part of ``a widespread or systematic attack'' against the civilian 
population.\1\
---------------------------------------------------------------------------
    \1\ See, for example, article 7 of the Rome Statute of the 
International Criminal Court.
---------------------------------------------------------------------------
                 other principles, practices, and norms
    The international community, it should be underscored, need not 
invoke R2P to justify a vigorous response to such a large-scale loss of 
life due to a state's indifference or incapacity. There are other sets 
of relevant principles, practices, and norms, including those 
concerning humanitarian assistance, internally displaced persons, and 
human rights. The Guiding Principles for humanitarian assistance were 
laid out in an annex to a 1991 General Assembly resolution (46/182). 
Under them, the sovereignty, territorial integrity, and national unity 
of states are to be fully respected and assistance is to be provided 
with the consent of the affected country. The importance of 
international cooperation to address emergency situations, however, is 
stressed and affected states are ``to facilitate the work of these 
organizations in implementing humanitarian assistance, in particular 
the supply of food, medicines, shelter and health care, for which 
access to victims is essential.''
    More recently, the 2005 summit called for ``upholding and 
respecting the humanitarian principles of humanity, neutrality, 
impartiality, and independence and ensuring that humanitarian actors 
have safe and unhindered access to populations in need in conformity 
with the relevant provisions of international law and national laws.'' 
\2\ In December 2006, the General Assembly called upon states ``to 
cooperate fully with the United Nations and other humanitarian agencies 
and organizations and to ensure the safe and unhindered access of 
humanitarian personnel as well as delivery of supplies and equipment in 
order to allow them to perform efficiently their task of assisting the 
affected civilian population'' (A/RES/61/134). And most recently, a 
December 2007 Assembly resolution reaffirmed the 1991 Guiding 
Principles for humanitarian assistance, emphasizing the responsibility 
of the state in facilitating ``the work of humanitarian organizations 
in mitigating the consequences of natural disasters'' (A/RES/62/93). 
While resolutions of the Summit and Assembly do not constitute binding 
international norms, they do reflect generally accepted standards and 
expectations.
---------------------------------------------------------------------------
    \2\ Paragraph 169, of the Outcome Document, U.N. Doc. A/RES/60/1.
---------------------------------------------------------------------------
    According to the U.N.'s Office for the Coordination of Humanitarian 
Affairs (OCHA), an estimated 2.4 million people have been affected by 
Cyclone Nargis and many of them have been uprooted from their homes and 
villages.\3\ The Guiding Principles on Internal Displacement, first 
articulated in 1998, are thus particularly relevant. Principle 24(2) 
stipulates that ``humanitarian assistance to internally displaced 
persons shall not be diverted, in particular for political or military 
purposes.'' Under Principle 25, international humanitarian 
organizations ``have the right to offer their services in support of 
the internally displaced'' and ``consent thereto shall not be 
arbitrarily withheld, particularly when authorities concerned are 
unable or unwilling to provide the required humanitarian assistance.'' 
Moreover, ``all authorities concerned shall grant and facilitate the 
free passage of humanitarian assistance and grant persons engaged in 
the provision of such assistance rapid and unimpeded access to the 
internally displaced.'' These principles have been reaffirmed in a 
number of General Assembly resolutions and in December 2007 the 
Assembly called upon governments to further improve access to 
internally displaced persons (A/RES/62/153).
---------------------------------------------------------------------------
    \3\ The estimate of affected comes from OCHA Situation Report No. 
29, 9 June 2008.
---------------------------------------------------------------------------
    Ultimately, it is the fundamental human rights of the disaster 
victims that are at stake. These derive from a number of instruments, 
including the International Covenant on Economic, Social and Cultural 
Rights and the Convention on the Rights of the Child. As U.N. High 
Commissioner for Human Rights, Louise Arbour, put it, referring to 
international aid following such devastating natural disasters, ``it is 
the right of victims to expect such assistance and it is the duty of 
governments and the international community to do everything in their 
power to facilitate it. In the case of Myanmar, the obstruction of the 
deployment of such assistance illustrates the invidious effects of 
longstanding international tolerance for human rights violations that 
made such obstruction possible.'' \4\
---------------------------------------------------------------------------
    \4\ Address to the 8th Session of the Human Rights Council, 2 June 
2008.
---------------------------------------------------------------------------
                           the u.n. response
    Some commentators have suggested that the U.N. is powerless when 
facing such obstruction unless the Security Council, including its 
veto-bearing five permanent members, can agree on forceful action. The 
response to Cyclone Nargis, however, suggests otherwise. The world body 
responded rapidly to the crisis on several levels and in several ways. 
Secretary General Ban Ki-moon employed his bully pulpit, his good 
offices, and, finally, his personal diplomacy to help persuade the 
authorities in Myanmar to take a more open approach to international 
efforts to aid the cyclone victims. Sir John Holmes, the U.N.'s 
Emergency Relief Coordinator, was on the ground in the region early and 
for an extended period, pressing the authorities to change their 
attitudes, helping to organize the international aid effort at both the 
field and headquarters levels, and keeping the world informed and the 
regime under global public scrutiny. A range of U.N. agencies and their 
national and civil society partners marshalled and delivered aid and 
technical assistance to the extent that the Myanmar authorities would 
permit. While much, much more needs to be done and the pressure needs 
to be sustained, it is estimated that 1.3 million victims have now been 
reached by the international aid effort and the Red Cross/Red Crescent 
movement, in addition to those reached by national efforts. Notably, 
some reports suggest that U.N. assistance has been more readily 
accepted than that from most other sources, perhaps because of the 
world body's political impartiality and reputation for technical 
expertise in disaster relief. As the Secretary General stressed on 12 
May, ``this is not about politics. It is about saving people's lives. 
There is absolutely no time to lose.'' \5\ The United Nations was able, 
in addition, to partner with ASEAN in organizing the pledging 
conference in Yangon on 25 May for international cyclone relief and 
with the government and ASEAN to conduct a major new assessment. The 
latter, which is underway as I speak, matters given the lack of 
reliable statistics to guide the relief effort.
---------------------------------------------------------------------------
    \5\ United Nations, Secretary General's Opening Remarks at His 
Press Conference on Myanmar, 12 May 2008.
---------------------------------------------------------------------------
    Despite all these efforts, this remains a tragic situation in which 
the enormous human costs of a natural calamity have been compounded by 
human error and intense political suspicion. As Secretary General Ban 
Ki-moon commented in Yangon on 25 May, ``we have a chance for a new 
beginning, today. I ask all of us to keep our eye firmly on the 
immediate objective--saving lives--guided by the principles of 
neutrality, impartiality, and our common humanity.'' \6\ Some day, 
historians and policy analysts will ask whether armed intervention 
would have been a better course. My guess is that they will note that 
the application of coercive measures by definition is not impartial, 
that turning a humanitarian disaster into a military confrontation does 
nothing to save lives, and, that, despite some tough talk, none of the 
military powers was prepared this time to use its forces for such a 
mission in any case. In the end, however, they may well acknowledge 
that, in its quiet ways, the U.N. did indeed make a positive difference 
in Myanmar, as it has in so many other places over so many years.
---------------------------------------------------------------------------
    \6\ U.N. Doc. SG/SM/11597, 27 May 2008.

    Senator Menendez. Mr. Schneider.

    STATEMENT OF MARK L. SCHNEIDER, SENIOR VICE PRESIDENT, 
           INTERNATIONAL CRISIS GROUP, WASHINGTON, DC

    Mr. Schneider. Thank you very much, Mr. Chairman, Senator 
Menendez, Senator Hagel, for the opportunity to appear today 
before the subcommittee on this issue.
    It is clearly an extremely important issue at this time. 
From the testimony you have heard from the previous panel and I 
think that you will hear from us, this is clearly an issue on 
which the international community is still grappling with how 
to impact effectively to save people's lives.
    Cyclone Nargis has raised the question of the policy 
options available to the international community when 
governments--either as the result of acts of commission or 
omission--pose the risk of large-scale loss of human life to 
their own people. Darfur and most recently Zimbabwe raise the 
same complex questions of what recourse exists when a 
government's actions, its failure to act, or its inability to 
act, produce massive humanitarian crises.
    What is the responsibility of the international community 
when the magnitude of the loss of life appears likely to reach 
or crosses the line of mass atrocities, genocide, war crimes, 
ethnic cleansing, or crimes against humanity?
    Just simply let me note that in Professor Luck's comments--
I do want to raise an issue about the question of the 
definition of crimes against humanity in this particular 
instance.
    The International Crisis Group came into being in the 
aftermath of Rwanda and Srebenica more than a decade ago. We 
bring analysis of conflict situations, hopefully, to the desks 
of decisionmakers in an effort to help find policy options to 
prevent massive loss of human life or to bring deadly violence 
to an end.
    The President of the International Crisis Group, Gareth 
Evans, really championed the concept of responsibility to 
protect when he was cochair of the Canadian-sponsored 
International Commission on Intervention and State Sovereignty.
    The purpose really was to find a middle ground in the 
debate during the 1990s between those who essentially argued 
for an almost open-ended right to intervene in the case of 
catastrophic human rights disasters and those who argued at the 
other extreme that state sovereignty meant that there could be 
no such intervention without the consent of the state involved. 
We would argue that in the past 50 years, the international 
community has come to recognize that a Rwanda, Darfur, 
Cambodia, or Sarajevo cannot be veiled from international 
responsibility by the curtain of national sovereignty.
    And as somebody who has served in the first Bureau of Human 
Rights in the State Department, now I guess almost 30 years 
ago, one has to be optimistic that we have come far enough that 
the General Assembly unanimously adopted the concept of a 
collective responsibility to protect individuals against mass 
atrocities. That simply was not thinkable 30 years ago.
    In response to the committee's questions, yes; the 
responsibility to protect is a fundamental element of a 
multilateral framework to prevent and respond to mass 
atrocities, and as stated by my colleague, one begins with the 
assumption that it's the state's responsibility first to 
protect, and it is the responsibility of the international 
community to assist that state in developing the capacity to 
protect. But the breakthrough in paragraph 139 was to say that 
there is a collective responsibility when states fail, through 
incapacity or intent, working through the United Nations, to 
react, when conditions reach the point of those specific mass 
atrocities: Genocide, war crimes, ethnic cleansing, and crimes 
against humanity.
    And then the question is, How do we react? And it is not 
just military action. It is the full range of diplomatic tools 
of special rapporteurs, commissions of inquiry, arms embargoes, 
targeted sanctions, economic and financial sanctions, even 
preventive deployment of military force.
    Now, the question seems to me--one really does have to 
focus--is that this is not between military force or no action 
at all. There is a range of other actions that can be taken. 
And to some degree, when one looks at Burma and Zimbabwe and 
Darfur, it is specifically about all of the range of actions 
that could be taken when a government, in fact, fails to act in 
a way to protect human life.
    Let us take Burma and Myanmar. The starting point, 
obviously, is to protect people from the impact of national 
disasters and the humanitarian obligation, as an international 
community, is to do everything possible that we can. However, 
the R2P principle does not apply to every natural disaster. It 
applies solely when there is an indication that governments 
are, in fact, committing crimes against humanity. And the 
definition there is important. If one looks at the Rome 
statute, the definition of crimes against humanity involves not 
merely the widespread or systematic attack directed against any 
civilian population with knowledge of the attack, but it 
includes other inhumane acts of a similar character 
intentionally causing great suffering or serious injury to body 
or to mental or physical health.
    Now, at the very least, one has to get to the question of 
what is the difference if a government sends its military to 
destroy villages resulting in the killing of thousands of 
people and then sends its military to deny relief to those same 
villages and, as a result, the same number of people die. If 
one were able to say that had occurred, it seems to me that one 
comes very close to the definition of crimes against humanity.
    Now, 2 weeks after Nargis occurred, there was an estimate 
that two-thirds of the victims had not yet received aid. 
Surely, had all Western ships in the area been allowed to bring 
relief to bear, some of those victims would have received water 
and food and lifesaving help. You just heard that 1.3 million 
victims have received assistance, and that is obviously 
positive. But the estimates still are that approximately a 
million have not. So the question is, What more needs to be 
done? What more can be done, and what would have been the 
definition and the reaction by the Security Council if today we 
were looking at a situation where 2.4 million had not received 
assistance? And you heard from Jim Kunder that probably 
thousands have died in the process. It seems to me that that is 
a question that the Security Council should be examining when 
the situation arises.
    Now, the question is, Then what? If you do reach the 
decision that there have been mass atrocities, does that 
automatically mean the application of military force? Here we 
would argue no. There are criteria that you have to take into 
account, and unfortunately, those criteria were not included in 
the adoption of paragraphs 138 and 139 in the summit document. 
But at least we believe that one should think whether this is 
the last resort. Is the intention of the action specifically 
designed to halt the atrocity? Is it proportional? Is it just 
the minimum necessary in order to achieve that end? And are 
there reasonable prospects that the intervention will either 
prevent the crime or bring the atrocities to a halt? There are 
no easy answers, but at the very least, that is a process that 
should be examined.
    Professor Luck indicated that he doubted very much that in 
this case there would have been that kind of response. But that 
is the kind of examination that is needed. One definitely, I 
think, can say that the existence of the responsibility to 
protect doctrine did have an impact in this situation perhaps 
of opening up some of that humanitarian space, whether it was 
the declaration of the French Foreign Minister or whether it 
was the more quiet comments by other Foreign Ministers, that 
the issue of whether or not crimes against humanity had been 
committed by denying relief--that that subject was under 
discussion. And it probably helped the arguments of ASEAN and 
China and India as they privately communicated with the 
Government in Burma.
    Zimbabwe. You asked the question of whether the hijacking 
of food relief reached the point where responsibility to 
protect would be brought into play. It seems to me again one 
has to say the potential is there clearly if, over time, there 
is a massive denial of food such that there are thousands of 
people who die in that process. And at the very least, a 
variety of tools, diplomatic and otherwise, should be brought 
to bear.
    Darfur is a much easier question. The United Nations 
already has said that responsibility to protect is one of the 
reasons for the use of chapter VII in bringing about a variety 
of actions. The United Nations has adopted a no-fly zone. It is 
argued that the Janjaweed must be disarmed, that the U.N. will 
deploy a 26,000-strong U.N. force, whether or not the 
Government of Sudan approves of which country is sending those 
troops. That unfortunately has not happened.
    Senator Menendez. If you could wrap up for me----
    Mr. Schneider. Sure.
    The issue really becomes one of a question of not the 
failure of the existence of R2P, but the failure of will of the 
members of the Security Council to enforce those actions.
    I will stop there.
    [The prepared statement of Mr. Schneider follows:]

    Prepared Statement of Mark L. Schneider, Senior Vice President, 
International Crisis Group on International Disaster Assistance: Policy 
                        Options, Washington, DC

    I want to thank the chairman, Senator Robert Menendez, and the 
ranking member, Senator Chuck Hagel, for the opportunity to testify 
before the subcommittee this afternoon on ``International Assistance: 
Policy Options.''
    The current humanitarian crisis in Burma following the devastation 
of Cyclone Nargis has raised again the question of the policy options 
available to the international community when governments pose the risk 
of large-scale loss of human life to their own people. As the committee 
has noted, Darfur, and most recently Zimbabwe, raise the same complex 
questions of what recourse exists when a government's actions, its 
failure to act, or its inability to act, produce massive humanitarian 
crises.
    What is the responsibility of the international community and the 
nation-states that comprise that community when the magnitude of loss 
of life appears likely to reach or crosses the line of mass 
atrocities--whether genocide, war crimes, ethnic cleansing or crimes 
against humanity?
    Let me begin by noting that the International Crisis Group came 
into being in the aftermath of Rwanda and Srebrenica more than a decade 
ago. The intent of our founders was to bring field-based analysis of 
conflict situations to the desks of decisionmakers in an effort to help 
them find policy options to prevent massive loss of human life or to 
bring deadly violence to an end. We now operate in some 60 countries 
with permanent offices or ongoing presence in 29 countries. We also 
have advocacy offices in New York, London, Moscow, and Beijing as well 
as the Washington office I direct. Our methodology has been clear, 
nearly from the start:

--First, our analysts in the countries identify the drivers of 
    conflict.
--Second, based on that analysis, together with our senior staff, 
    Crisis Group defines policy recommendations on how to prevent those 
    factors from erupting into deadly violence, how to end it or how to 
    work in a post conflict environment to prevent its recurrence.
--The third leg of our conflict prevention stool involves advocacy by 
    our board and senior staff in the countries themselves, and around 
    the globe.

    Our board is abnormally large, abnormally impressive, and 
hopefully, abnormally influential. Today it is cochaired by Lord Patten 
of Barnes, former European Commissioner for External Relations, and 
Career Ambassador Thomas Pickering, former Under Secretary for 
political affairs. Of the Americans, we have one former Republican 
Senator, one former Democratic Senator as a founder and a chairman 
emeritus and a former Cabinet member from each party. We also have a 
half dozen former heads of state, more than a dozen former Ministers of 
Defense and Foreign Relations, former international officials, 
including as of July 1, former Secretary General Kofi Anan, and 
business and civil society leaders.
    Crisis Group is led by our president, Gareth Evans, former 
Australian Foreign Minister, and also previously cochairman of the 
Canadian-sponsored International Commission on Intervention and State 
Sovereignty and a member of the Secretary General's High-Level Panel on 
Threats, Challenges and Change in 2005.
    Gareth Evans championed the concept of a ``Responsibility to 
Protect'' (R2P) specifically to enable common ground to be found--and 
this was a very divisive debate right through the 1990s--between those 
who argued for an almost open-ended ``right to intervene'' in the case 
of catastrophic human rights disasters, and those who argued at the 
other extreme that state sovereignty meant that there could be no such 
intervention without the consent of the state involved. In the past 50 
years, the international community has come to recognize that a Rwanda, 
Darfur, Cambodia, or Sarajevo cannot be veiled from international 
responsibility by a curtain of national sovereignty. From the Genocide 
Convention, the Universal Declaration of Human Rights, the 
International Covenants, the International Treaties against the use of 
Torture and Disappearance to the establishment of the International 
Criminal Court--it is clear that there are limitations on state 
sovereignty today that did not exist before the Holocaust and post-
Second World War belief that ``Never again'' must become more than 
rhetoric.
    As someone who served in the first Bureau of Human Rights in the 
State Department, I still harbor enormous optimism about how far we 
have come in overcoming those who assert the absolute nature of 
national sovereignty. We could never have imagined then that a doctrine 
incorporating a collective ``responsibility to protect'' individuals 
against mass atrocities would be unanimously adopted by the United 
Nations General Assembly.
    In specific response to the committee's question: Yes; the 
Responsibility to Protect is a fundamental element of a multilateral 
framework to prevent and respond to mass atrocities.
    The doctrine begins with the recognition that states bear primary 
responsibility for protection of their populations against mass 
atrocity crimes--genocide, war crimes, ethnic cleansing and crimes 
against humanity--and the international community's normal role is to 
cooperate, support, and help states acquire the capacity to protect 
their populations.
    The World Summit Outcome Document, September 2005. Heads of state 
and government attending the 60th Session of the U.N. General Assembly 
agreed as follows:

          138. Each individual State has the responsibility to protect 
        its populations from genocide, war crimes, ethnic cleansing and 
        crimes against humanity. This responsibility entails the 
        prevention of such crimes, including their incitement, through 
        appropriate and necessary means. We accept that responsibility 
        and will act in accordance with it. The international community 
        should, as appropriate, encourage and help States to exercise 
        this responsibility and support the United Nations in 
        establishing an early warning capability.

    The concept begins with prevention, focusing on root causes as well 
as the potential triggers of a crisis and with the development of an 
``early warning'' capacity on the part of the United Nations to be able 
to recognize conditions approaching R2P situations. We still would 
argue that much more needs to be done to enable the U.N. and regional 
organizations to fulfill that early warning capability.
    The concept then accepts in paragraph 139 a collective 
responsibility where states fail, through intent or incapacity, working 
through the United Nations, to react, when conditions reach the point 
of ``genocide, war crimes, ethnic cleansing and crimes against 
humanity.'' The concept calls first to use the whole array of peaceful 
tools--diplomacy, humanitarian assistance, special rapporteurs, 
commissions of inquiry, arms embargos, targeted sanctions on the 
responsible government officials, economic and financial sanctions, 
even preventive deployment of military forces--for instance EUFOR on 
the Chadian border.

          139. The international community, through the United Nations, 
        also has the responsibility to use appropriate diplomatic, 
        humanitarian and other peaceful means, in accordance with 
        chapters VI and VIII of the charter, to help to protect 
        populations from genocide, war crimes, ethnic cleansing and 
        crimes against humanity. In this context, we are prepared to 
        take collective action, in a timely and decisive manner, 
        through the Security Council, in accordance with the charter, 
        including chapter VII, on a case-by-case basis and in 
        cooperation with relevant regional organizations as 
        appropriate, 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. We stress the need for the General Assembly to 
        continue consideration of the responsibility to protect 
        populations from genocide, war crimes, ethnic cleansing and 
        crimes against humanity and its implications, bearing in mind 
        the principles of the charter and international law. We also 
        intend to commit ourselves, as necessary and appropriate, to 
        helping States build capacity to protect their populations from 
        genocide, war crimes, ethnic cleansing and crimes against 
        humanity and to assisting those which are under stress before 
        crises and conflicts break out.

    In fact, the Responsibility to Protect encompasses three finite 
components: The responsibility to prevent, the responsibility to react, 
and the responsibility to rebuild, particularly the latter if the 
military force has occurred. ICISS and Secretary General Kofi Annan, in 
his report to the 2005 summit, entitled ``In Larger Freedom: Toward 
Development, Security and Human Rights for All,'' embraced that 
multifaced nature of the Responsibility to Protect.
    A month before the Millennium Plus 5 summit, I had the occasion to 
address the Global Partnership for the Prevention of Armed Conflict at 
the United Nations, which brought together civil society from around 
the world in support of the R2P concept. We were there in part to urge 
its adoption by the summit. It was civil society from north and south 
that was demanding a collective response when states engaged in, or 
failed to stop mass atrocities, but also that prevention had to be at 
its core.
    Secretary Ban Ki-moon, in naming my distinguished fellow panelist, 
Professor Edward Luck, his special advisor on R2P, emphasized the 
importance of making it ``operational'' and in that context, hopefully, 
this hearing will advance that effort.
    Crisis Group also is helping that process as one of the founders of 
the ``Global Centre for the Responsibility to Protect'' which was 
launched in February with a strong statement of support by Secretary 
General Ban. He urged the Centre, based at the Ralph Bunche Institute 
at CUNY, to help the international community ``take the principle of 
the responsibility to protect from concept to actuality, from word to 
deed.'' That is still the challenge.
    As we engage in this discussion, I think it is useful to recall 
what the Responsibility to Protect is not.

   It is focused squarely on mass atrocity crimes like genocide 
        and crimes against humanity, and not human security problems 
        more generally like HIV/AIDs or the impact of climate change or 
        natural disasters (where these don't also involve the 
        commission of mass atrocity crimes).
   It is not the same as ``humanitarian intervention'' when 
        that term is understood, as it almost invariably now is, as 
        meaning solely the coercive use of military force against the 
        wishes of the involved nation-state to preserve human life: It 
        is a broader concept, focused heavily on prevention, and 
        assistance and persuasion, with coercive measures, including 
        military force, only appropriate as a last resort.
   It does not justify the automatic and unconditional use of 
        military force even when violation reaches the levels of mass 
        atrocities: There are other prudential criteria to be 
        satisfied, including whether coercive intervention would on 
        balance do more harm than good.

    How then does the Responsibility to Protect help us in considering 
the cases of Burma, Darfur, and Zimbabwe?
    For Burma/Myanmar, the starting point has to be that R2P is not 
itself about protecting people from the impact of natural disasters. Of 
course they should be protected--and our humanitarian obligation as an 
international community is to do everything we possibly can to ensure 
that they are--but the R2P principle, as agreed in 2005, and with all 
that it implies about the possible coercive use of military force if 
all else fails, only cuts in when mass atrocity crimes are involved.
    The real question here is whether it can be argued that crimes 
against humanity were involved in the recklessly indifferent response 
of the generals.
    The official figures in May were of some 60-100,000 dead and 2.4 
million affected. It was unconscionable that the Burmese generals 
prevented international aid and international aid workers for several 
weeks from reaching the victims. Amnesty International has estimated 
that 2 weeks after the cyclone, two-thirds of the victims had not yet 
received aid. Surely had all Western ships in the area been allowed to 
bring relief to bear--some of them would have received water and food 
and life-saving help.
    On Friday, the U.N.'s Office of Coordination of Humanitarian 
Assistance (OCHA) issued its 31st Situation Report noting that still 
more than 1 million of the 2.4 million victims of the cyclone have yet 
to receive aid. It cited a month-old government estimate of 77,738 
killed and 55,917 missing. It also noted that some 250 international 
aid workers from ASEAN, the U.N. and supporting countries are making a 
new assessment of need.
    This weekend, I noted that USAID and Agricultural officials have 
been able to go on the ground to assess the cyclone-affected areas, 
that USAID has been able to coordinate 35 DOD C-130 flights with relief 
aid. The U.N., ASEAN, and other relief teams currently are engaged in 
assessment and coordination. However, let us be clear. Not enough was 
done immediately and people died needlessly as a result. And not enough 
is being done today to reach all of the victims with all of the 
resources available from the outside community--without obstacles, 
without visa restrictions, without considering whose flag is on whose 
ships or whose planes.
    So does this constitute a crime against humanity of a kind that 
would trigger the R2P principle?
    On the face of it, whether the government sends its armed forces to 
murder large numbers of its citizens or whether it denies them food or 
medicine and they die of hunger or disease is different only in kind.
    The definition of crimes against humanity, most recently 
incorporated by the international community in the Rome statute states, 
covers along with widespread or systematic murder, torture, persecution 
and the like, ``other inhumane acts of a similar character 
intentionally causing great suffering, or serious injury to body or to 
mental or physical health.'' Starving villages by denying food relief 
on a continuing basis until the residents died when such relief was 
available seems, on any view, to get very close to what is punishable 
here, although there is obviously room for lawyers to argue about 
whether ``intentionally'' means cold-blooded, deliberate willingness to 
cause death or reckless, negligent, indifference as to whether people 
died or not.
    Even if one gets past this hurdle, there is still an issue, in any 
application of the R2P principle, as to whether the coercive use of 
military force is appropriate.
    The relevant criteria (which have been part of all the public 
discussion of R2P but unfortunately were not included in the 2005 World 
Summit resolution--partly because of U.S. administration objections) 
include not only ``the just cause threshold,'' that is the finding of 
``serious and irreparable harm''; right intention, such that the 
primary purpose of the intervention is to halt or prevent the harm; 
last resort, that nonmilitary means have been tried and failed, or can 
be judged unlikely to succeed; proportional means that the ``scale, 
duration, and intensity'' of the planned military intervention is the 
minimum necessary to protect the population; and--very importantly--
reasonable prospects that the intervention will prevent the crime or 
bring the atrocities to a halt and that the consequences of the 
intervention will not themselves be worse than if there had been no 
intervention. In the Burma/Myanmar context many voices were heard from 
aid agencies and others arguing that as a practical matter military 
intervention would not work, or make matters on the ground even worse 
for the affected population.
    There are no easy answers to any of these questions, and it is 
clear that there was no consensus about how to answer them in the 
Security Council, which is under international law the proper forum to 
debate and resolve any issue involving the use of military force other 
than in self-defense.
    But one can certainly argue that the existence of the R2P norm--as 
endorsed by the U.N. General Assembly at the 2005 World Summit, and 
endorsed subsequently by the Security Council in resolutions--on 
protection of civilians in armed conflict UNSCR 1674 and again in UNSCR 
1706 in authorizing U.N. peacekeepers to Darfur--may well have been a 
factor in the decisionmaking of the Burmese generals to remove some of 
the obstacles to relief. The French Foreign Minister's call for urgent 
military action based on that concept undoubtedly did not go unnoticed 
in Burma even if, at the time, it brought him much criticism. When in 
subsequent days the argument was expressed by the U.K. and others a 
little more carefully, making clear that crimes against humanity had to 
be involved, not just an inadequate disaster response, if the R2P 
principle was to apply, and that there was at least a prima facie case 
to be made that crimes against humanity were being committed, there is 
reason to believe that the possibility of being held to account by 
international criminal law concentrated the minds of the generals.
    Overall the diplomatic pressure did have some effect, and the R2P 
argument was part of it. Burma's Asian neighbours--the ASEAN countries, 
China and India--were reluctant to go down this path, but clearly made 
important representations of their own. There is quite a distance to go 
in winning international consensus on how the R2P principle should 
apply in a variety of situations, and few will be more difficult--or 
raise more arguments on both sides--than the Burma case. But the effort 
to build that consensus, and further refine and develop the R2P 
doctrine so that it does become an effective blueprint for action, 
should continue.
    The committee also raised the question of the applicability of the 
``Responsibility to Protect'' in other situations:
    Zimbabwe: If the hijacking of food relief aid continues as well as 
the widespread denial of food assistance to the political opposition in 
Zimbabwe continues, then we may well have to ask the question as to 
whether we are approaching a similar R2P situation in Zimbabwe in which 
crimes against humanity, not just lesser human rights violations, are 
involved, with all that implies. At the very least, reenergized 
diplomatic efforts are urgently called for--both with respect to the 
humanitarian crisis and with respect to the political crisis. WFP has 
said some 4 million people are in need of food aid.
    Darfur: The case of Darfur is much more clearly a matter of R2P and 
the United Nations Security Council has considered the matter not once 
but multiple times with the adoption under Chapter VII of Resolution 
1706, authorizing the U.N. Mission in Sudan to ``use `All Necessary 
Means' to Protect United Nations personnel, Civilians under threat of 
physical violence'' and specifically citing R2P in that context. If 
there is any indication of the need to make R2P operational it is 
Darfur. Resolution after resolution, the United Nations members have 
failed to follow through on their commitments--whether to impose a no-
fly zone, to act when the Government of Sudan failed to disarm the 
Janjaweed, to take over by last December from the African Union full 
operational control of the peacekeeping force, to establish unity of 
command and lastly to fully deploy the 26,000-strong U.N. force with 
the troops needed, whether or not the Government of Sudan approves.
    This was not a failure of the doctrine of R2P but the failure of 
will of the members of the U.N. to enforce the authority of the 
Security Council, and to use instruments of international pressure that 
will really work. That remains a challenge even as we speak. It is not 
a matter here of assuming that the only remedy is the coercive use of 
military force: There are strong reasons for believing that this, even 
if it could be mobilized, would be counterproductive, and many of those 
engaged in humanitarian relief have argued that the negative collateral 
costs are too high in terms of halting relief aid and putting 
humanitarian workers--foreign and domestic--at risk. What is disturbing 
is that the willingness to use the full range of other instruments and 
to maintain unceasing pressure to achieve an end to the crisis has been 
lacking. Making R2P fully operational remains an ongoing challenge.
    The committee also has asked that we look beyond R2P to whether 
other policy instruments which might be implemented and whether 
regional organizations have a role to play. Clearly there are roles of 
regional organizations and the work of ASEAN in inducing Burma to move 
as far as it has is one example. In the Western Hemisphere, the Pan 
American Health Organization has a long history of cooperation on 
humanitarian issues and with the OAS might well be a source for 
movement toward regional agreements on mandatory access for 
humanitarian relief. Multilateral organizations like the OAS or the 
U.N. are more likely to be accepted by nation-states than countries 
whose motives might be suspect. The principles begin with the notion 
that it is people who are sovereign, not governments. While a state has 
primary responsibility, the International Committee of the Red Cross 
and others have suggested that when a state refuses or is unable, an 
international treaty would require that humanitarian assistance be 
allowed in accord with certain principles:

   That humanitarian assistance be provided without 
        discrimination;
   That it be provided through an intergovernmental 
        organization or a qualified organization unaligned with any 
        government and qualified by OCHA;
   That priority in assistance go to those most urgent cases of 
        distress;
   That it not be used to advance any political or religious 
        view;
   That where possible it respect local culture, customs, and 
        norms.

    In the 21st century, surely we are at a stage where norms should 
protect human life and people rather than the absolutist definitions of 
state sovereignty coming out of the 17th century.

    Senator Menendez. Thank you.
    Dr. Patrick.

STATEMENT OF DR. STEWART PATRICK, SENIOR FELLOW AND DIRECTOR OF 
     THE PROGRAM ON INTERNATIONAL INSTITUTIONS AND GLOBAL 
    GOVERNANCE, COUNCIL ON FOREIGN RELATIONS, WASHINGTON, DC

    Dr. Patrick. Thank you very much, Mr. Chairman Menendez. It 
is an honor to testify before this subcommittee on policy 
options for the United States in the wake of natural disasters 
when regimes create impediments to the delivery of lifesaving 
assistance.
    The issue before us is really part of a longer or wider 
debate about the limits of state sovereignty when regimes fail 
to meet their fundamental obligations to their citizens and 
appropriate responses of outsiders, including the United 
States, during those circumstances. And as we have said, this 
is very timely not only in view of Cyclone Nargis but also in 
the decision of the Government of Zimbabwe to shut down the 
operations of NGOs that are feeding up to 4 million people in 
that country.
    Although I agree with my fellow panelists, there are no 
easy answers to the questions you have posed, these hearings I 
think have already begun to shed some light on the principles 
and considerations that should inform U.S. policy on the range 
of actions that are available and some of the tradeoffs and 
dilemmas inherent in these choices.
    Our goal in my view should be to expand the U.S. foreign 
policy tool kit so that we are not simply left with the 
extremes in the sense of standing idly by as civilians die and 
launching a full-scale invasion of the offending state.
    In my view, recent natural disasters underscore both the 
impressive scope of global humanitarian action and its 
vulnerability to political obstructionism, and several points 
in my view have emerged from these experiences.
    First is that the United Nations possesses a robust 
multilateral framework and an unmatched comparative advantage 
in launching international responses to natural disasters. At 
the same time, the Emergency Response Coordinator, who leads 
the U.N. response, generally requires some level of consent 
from the host government, however incomplete or grudging, and 
when this is absent, as John Holmes discovered in Burma, you 
have a real impediment to delivery of assistance.
    The second observation is that most countries in the 
developing world, even with repressive governments like Burma, 
possess some humanitarian presence that the U.N. and other 
actors, including the U.S. Government, can leverage during 
times of crisis, but that in and of itself is not enough.
    The third point that we have learned is that effective 
humanitarian response is not simply about delivering supplies 
to the host government or to local service providers. It is 
also about access, access for U.N. aid workers, donor 
governments, and NGOs who are the only ones that normally 
possess the technical and managerial expertise necessary to 
conduct timely needs assessments, to organize the distribution 
of supplies, and to adapt to new phases of the crisis.
    The fourth point that we have learned is that 
authoritarian, corrupt, and criminally negligent regimes 
exacerbate humanitarian catastrophes, transforming natural 
disasters into manmade ones. Closed societies like Burma, 
Zimbabwe, and North Korea are both more susceptible to disaster 
and worse at responding to them.
    Given these political impediments, it has been natural to 
ask as Foreign Minister of France Bernard Kouchner did about 
whether or not the international community should be prepared 
to invoke the responsibility to protect. As my colleagues have 
noted, the R2P norm recognizes, in effect, that sovereignty is 
contingent upon the fulfillment of certain fundamental 
obligations. The notion of expanding R2P to natural disasters 
implies that callous state indifference to the plight of 
disaster victims may rise to the level of a crime against 
humanity.
    Now others, including Ed Luck, in discussing this earlier 
suggest that such expansion would be unwise. They point out 
that it would undermine the fragile global consensus on 
applying the concept to mass atrocity crimes, that the 
threshold level of obstruction necessary to trigger the 
doctrine remains unclear, that invoking R2P in disaster 
situations would close off entirely what limited access to 
humanitarian actors actually exists, and that the doctrine 
implies a willingness also to use military force that could 
both exacerbate the humanitarian catastrophe and be tough to 
sustain domestically in the United States and other intervening 
countries.
    In my view, these objections are not easily dismissed. My 
own belief is that the norm of R2P should be invoked following 
natural disasters only in exceptional circumstances subject to 
three conditions. The conduct of the offending state must be 
conscious and egregious, threatening imminent massive loss of 
life. Second, there must be prospects for consensus within the 
Security Council on the norm's application. And third, 
importantly, the invocation of the doctrine must promise to 
increase, as opposed to constrict, humanitarian space by saving 
more human lives than it jeopardizes.
    There is ample scope, as has been discussed, for lawyers or 
even my two copanelists to debate the boundaries of the 
responsibility to protect doctrine. These debates, however, 
should not distract us from considering practical steps that we 
can begin to take today to improve humanitarian access in the 
aftermath of natural disasters that fall well short of full-
fledged military invasion. In my written testimony, I 
introduced seven principles that should guide U.S. policy, and 
I will simply telegraph them here.
    The first point is that the U.S. should support the 
negotiation of a new multilateral agreement clarifying state 
responsibilities to provide humanitarian access while also 
encouraging governments to adopt standing protocols with 
respect to the receipt of emergency aid.
    Second, to avoid being caught flat-footed when disaster 
strikes, the United States should create a more robust 
contingency planning framework. Such over-the-horizon planning 
has been moribund since the second year of the Bush 
administration.
    Third, when natural disaster strikes, the overriding 
criteria for U.S. policy should be whether the proposed action 
promises to expand or shrink humanitarian space. And it is 
important to put other considerations, even those that we have 
espoused such as regime change, on the back burner unless there 
is no other means to gain access.
    Fourth, the United States should seek to give international 
intervention, and any intervention that it contemplates, a 
humanitarian face, a multilateral imprimatur, and a regional 
dimension. Placing the U.S. military out in front, and acting 
on a unilateral, or bilateral ad hoc basis can be 
counterproductive to the goal of saving lives.
    Fifth, when U.S. relations with the affected country are 
particularly poor, the United States should empower others and 
particularly the relevant regional organizations. A priority 
for U.S. policy must be to bolster the uncertain will and often 
limited capacity of regional bodies like the African Union, the 
Organization of American States, and ASEAN to prepare, 
coordinate, and deliver humanitarian assistance in their 
neighborhoods.
    Sixth, military force is not the only, nor necessarily the 
most, desirable way to change incentives of bad actors. The 
United States needs to open up and work on its foreign policy 
tool box so that it can hone a wider array of policy 
instruments beyond showing up off the country's coast with some 
ships loaded with troops and supplies. It needs to invest more 
time and resources in crisis diplomacy at the U.N., in regional 
organizations, and with critical countries that have leverage 
over the recalcitrant regime. And it needs to explore a wider 
range of incentives, including those that are both positive and 
negative.
    And then finally--and this is my last comment--when 
considering armed force to ensure humanitarian access, the 
United States must be realistic about the likely magnitude of 
any military resistance, for instance, from a country like 
Burma that has 500,000 people in uniform. It must also treat 
the use of force as a last resort, resist the temptation to do 
this alone, and be prepared to own the aftermath, as has been 
discussed by the previous panel, of any armed intervention 
which will imply not only the responsibility to protect, but 
the responsibility to rebuild.
    Thank you for this opportunity.
    [The prepared statement of Dr. Patrick follows:]

Prepared Statement of Dr. Stewart Patrick, Senior Fellow and Director, 
Program on International Institutions and Global Governance, Council on 
                   Foreign Relations, Washington, DC

    Chairman Menendez, Senator Hagel, and members of the committee, it 
is an honor for me to testify on policy options for the international 
community in the wake of natural disasters, particularly when 
recalcitrant regimes prevent the delivery of life-saving assistance. 
This hearing is a timely one, given the abysmal performance of the 
Burmese junta following Cyclone Nargis and the recent decision by the 
Government of Zimbabwe to shut down the operations of international 
NGOs that provide food aid to an estimated 4 million people in that 
country. Today's discussion is part of a broader debate about the 
limits of state sovereignty and the responses available to outside 
actors when governments fail to meet fundamental obligations to their 
citizens. I commend the committee for its willingness to grapple with 
these tough questions, for which there are no easy answers.
    If hard and fast rules are elusive, this hearing may nevertheless 
shed light on certain principles and considerations that should inform 
U.S. policy, the range of actions available to the United States and 
its partners, and the dilemmas and tradeoffs inherent in each. Our goal 
should be to expand America's foreign policy toolkit, so that we are 
left with a wider array of choices than the extremes of standing idly 
by as innocent civilians die or launching a full-scale invasion of the 
offending state.
    My testimony is divided into three parts. I begin by reviewing the 
multilateral framework for humanitarian action following natural 
disasters. I underline the importance of ensuring humanitarian access 
and the obstacles that dictatorial regimes can place in the way of an 
effective response. I then ask whether the ``Responsibility to 
Protect'' (R2P) doctrine should be extended to natural disasters in 
which the ruling regime impedes international assistance. I submit that 
the doctrine should be applied only in exceptional circumstances: When 
egregious state misconduct threatens massive loss of life; when there 
is broad international consensus on the norm's application; and when 
its invocation promises to increase ``humanitarian space,'' by 
advancing the goal of saving human lives.
    I close by offering some practical recommendations for strategies 
to reduce political obstacles to humanitarian action following natural 
disasters. Guidelines and priorities for U.S. policy include: (a) 
Sponsoring a new multilateral agreement clarifying U.N. Member State 
responsibilities; (b) improving U.S. contingency planning to avoid 
getting caught flat-footed; (c) focusing U.S. efforts on the expansion 
of ``humanitarian space;'' (d) empowering regional organizations to 
take the lead; (e) opening the U.S. diplomatic ``toolbox'' to expand 
points of leverage; and (f) developing a realistic U.S. doctrine for 
the use of military force, as part of a multilateral effort, when all 
other avenues fail.
                  the challenge of humanitarian access
    Recent natural disasters, from the Indian Ocean tsunami to Cyclone 
Nargis, have underscored both the impressive scope of global 
humanitarian action and its vulnerability to political obstruction. 
Several points stand out from recent experience.
    First, the United Nations possesses a robust multilateral framework 
and unmatched comparative advantages in launching prompt international 
responses to natural disasters.\1\ U.N. disaster response efforts are 
undertaken under the leadership of the U.N. Emergency Relief 
Coordinator (ERC), who heads the Office the Coordinator of Humanitarian 
Affairs (OCHA). The ERC presides over the U.N.'s Interagency Standing 
Committee (IASC) for humanitarian affairs, composed of relevant U.N. 
system programs and agencies and representatives of the main private 
voluntary aid organizations.\2\ Beyond directing responses from U.N. 
headquarters, OCHA generally coordinates emergency responses within the 
affected country, in partnership with U.N. agencies, bilateral donor 
aid agencies, and nongovernmental organization (NGO) partners.
---------------------------------------------------------------------------
    \1\ Following the Indian Ocean tsunami, the Bush administration 
initially announced the formation of a ``core group'' of major 
countries to organize the international response, but quickly abandoned 
this ill-conceived effort following objections from the international 
community.
    \2\ Full members of the IASC include OCHA, FAO, UNDP, UNFPA, UNHCR, 
UNICEF, WFP, and WHO. Standing invitees include IOM, the World Bank, 
the Office of the High Commissioner for Human Rights, the Secretary 
General's Special Representative on the Human Rights of Internally 
Displaced Peoples, the International Committee of the Red Cross, the 
International Committee of Red Cross and Red Crescent Societies, the 
International Organization for Migration (IOM), the American Council 
for Voluntary International Action (InterAction), and the International 
Council of Voluntary Agencies (ICVA).
---------------------------------------------------------------------------
    As legal matter, the ERC has sweeping authorities to declare a 
humanitarian emergency and to lead a global effort to respond to it, 
without any formal decision by the Security Council or the explicit 
consent of the government of the affected state. As a practical matter, 
some basic level of consent from the host government (however 
incomplete and grudging) is generally required for the U.N. to organize 
and deliver humanitarian assistance. Where it is lacking, as Jan 
Egeland found in Darfur and his successor John Holmes discovered in 
Burma, the United Nations may be blocked from conducting relief 
operations.
    Second, most countries in the developing world possess some local 
humanitarian presence that can be leveraged following natural 
catastrophes. This is true even in repressive states. Burma is a case 
in point. At the time that Cyclone Nargis struck, some 2,600 Burmese 
were working for U.S.-based NGOs in the Irrawaddy Delta. So although 
outside agencies could not get supplies and people into Burma, they 
could in some cases transfer money to national staff to buy local 
resources. Thus Save the Children delivered 145 tons of relief supplies 
in the first 48 hours, and international NGOs reached 265,000 people in 
the first week. I hasten to add that this was only a small fraction of 
the affected population. But it underlines that even in the most 
repressive states a local platform often exists upon which an 
international humanitarian response can build.
    Third, effective humanitarian response is not simply about 
delivering supplies. It is also about access--specifically, about 
access for international aid workers from U.N. agencies, donor 
governments, and nongovernmental organizations who are adept at working 
with local partners and capable of conducting needs assessments, 
determining where aid should be distributed, organizing the 
distribution of these supplies, and adapting to new phases of the 
crisis as it evolves, including ultimately restoring livelihoods. Few 
governments and societies in the developing world have the standing 
capacity to respond to large-scale natural disasters without the help 
of the international humanitarian system. Outsiders bring indispensable 
financial resources, logistical capabilities, managerial expertise, and 
technical skills that rarely exist locally.
    Fourth, authoritarian, corrupt, and criminally negligent regimes 
can exacerbate humanitarian catastrophes, transforming ``natural'' 
disasters into manmade ones. In the case of Burma, decades of 
unaccountable and unresponsive governance left the inhabitants of the 
Irrawaddy Delta particularly vulnerable to a devastating cyclone. The 
Burmese junta then compounded human suffering through a litany of 
egregious actions designed to limit humanitarian access while 
preserving their iron grip on the country. This included denying the 
entry of international search and rescue teams; refusing to issue visas 
for foreign aid workers; restricting airborne delivery of foreign 
assistance; sealing the disaster zone to non-Burmese; and diverting aid 
to reward regime cronies. Three weeks after the cyclone, the trickle of 
emergency assistance had reached only a small fraction of the estimated 
2 million affected people. The Burma experience, like that of North 
Korea and Zimbabwe, underscores that closed societies are both more 
susceptible to ``natural'' disasters and demonstrably worse at 
responding to them than are open societies.\3\ (Contrast Burma with 
neighboring Bangladesh, an equally poor but democratic country, which 
possesses a sophisticated preparedness and evacuation infrastructure; 
or with Indonesia, a new democracy that facilitated the construction of 
a massive international aid pipeline within 2 days of the Indian Ocean 
tsunami.).
---------------------------------------------------------------------------
    \3\ Beyond fearing a loss of control to--and being shown up by--
international actors, dictatorial regimes are aware that massive 
humanitarian responses can have profound political consequences. In 
Indonesia, for example, the influx of post-tsunami aid and humanitarian 
actors helped to create a political opening to advance the peace 
process in Aceh.
---------------------------------------------------------------------------
    the ``responsibility to protect'' and its relevance to natural 
                               disasters
    Given the political impediments that sovereign governments have 
placed on the delivery of emergency assistance, it is reasonable to ask 
whether the international community has any recourse to insist upon, or 
even enforce, the unencumbered flow of relief in the aftermath of 
natural disasters. Following Cyclone Nargis, a number of observers have 
argued that the new U.N. norm of a ``Responsibility to Protect'' 
provides sufficient legal and moral basis for overriding national 
sovereignty in such circumstances. While this argument has merit in 
extreme cases, it remains highly controversial globally and provides no 
silver bullet for improving humanitarian access following natural 
disasters.
    The United Nations' General Assembly endorsed the concept of a 
``Responsibility to Protect'' in September 2005, as part of the Outcome 
Document of the U.N. High Level Summit. The concept recognizes that 
sovereignty is, in effect, contingent, dependent on the state's 
fulfillment of fundamental obligations. Specifically, when a government 
makes war on its citizens--or fails to prevent atrocities from being 
committed against them--the ``responsibility to protect'' transfers to 
the international community. To enforce this new norm, the Outcome 
Document envisions a set of graduated responses, beginning with 
``diplomatic, humanitarian, and other peaceful means'' under chapters 
VI and VIII, but including the potential use of armed force under 
chapter VII of the U.N. Charter.\4\
---------------------------------------------------------------------------
    \4\ The official U.S. position, as outlined by U.N. Representative 
John R. Bolton in a letter of August 30, 2005, is that the 
international obligation to take collective action under chapter VII is 
an ethical rather than legal one, and, moreover, any such action will 
remain the purview of the U.N. Security Council, where the United 
States and other Permanent Members wield a veto. http://
www.responsibilitytoprotect.org/index.php/government_statements/.
---------------------------------------------------------------------------
    The underlying motivation behind the ``Responsibility to Protect'' 
concept was to help prevent new Rwandas, Srebenicas, and Kosovos--
instances in which murderous regimes or their proxies slaughtered 
thousands of unarmed civilians. To date, the international community 
has found it easier to enunciate this new norm than to enforce it. As 
the ongoing violence in Darfur illustrates, it is one thing to declare 
a responsibility to protect; it is quite another to marshal the 
political will and the practical capacity required to implement it. 
Nevertheless, the new ``doctrine'' represents a profound normative 
evolution within the context of the United Nations, an organization 
founded in 1945 on the bedrock principles of state sovereignty and 
nonintervention.
    Whether the Responsibility to Protect extends to disasters that are 
``natural'' in origin but exacerbated by state incapacity or 
malevolence is a subject of vigorous debate. The International 
Commission on Intervention and State Sovereignty (ICISS), which first 
developed the concept, envisioned that it would apply not only to mass 
atrocities but also when states are unable or unwilling to provide 
relief in humanitarian emergencies.\5\ The 2005 Outcome Document took a 
narrower approach, however, restricting the norm's application to four 
specific situations: ``Genocide, war crimes, ethnic cleansing, and 
crimes against humanity.'' \6\
---------------------------------------------------------------------------
    \5\ International Commission on Intervention and State Sovereignty, 
The Responsibility to Protect http://www.iciss.ca/pdf/Commission-
Report.pdf.
    \6\ United Nations General Assembly, World Outcome Summit Document, 
September 15, 2005, http://www.who.int/hiv/universalaccess2010/
worldsummit.pdf.
---------------------------------------------------------------------------
    Although this would appear to exclude natural disasters from the 
doctrine's purview, things are less clear-cut if the regime's conduct 
can be said to constitute a ``crime against humanity.'' In May 2008, 
French Foreign Minister, Bernard Kouchner, ignited a diplomatic 
firestorm by invoking the doctrine in the case of Burma, arguing that 
the junta's failure to provide access to outside relief agencies would 
condemn tens of thousands of Burmese to death from exposure, hunger, 
and disease.\7\ Other prominent European diplomats, as well as 
independent commentators, have adopted a similar line of argument.\8\
---------------------------------------------------------------------------
    \7\ ``U.N. Action Argued over Burma Cyclone,'' Reuters, May 8, 
2008. ``International Pressure on Myanmar Junta Is Building,'' New York 
Times, May 18, 2008.
    \8\ Gareth Evans, ``Facing Up To Our Responsibilities,'' The 
Guardian, May 12, 2008. Ivo Daalder and Paul Stares, ``The United 
Nations Can Save Burma,'' Boston Globe, May 13, 2008; Stewart Patrick, 
``Open the Door To Aid,'' Baltimore Sun, May 15, 2008.
---------------------------------------------------------------------------
    This reasoning has met with equally fierce resistance. Critics 
raise several weighty objections: First, the effort to expand the 
doctrine to natural disasters could undermine the painstakingly 
negotiated (but already fragile) consensus on the concept's application 
to situations of mass atrocity crimes, particularly among developing 
countries with a neuralgic fear of outside intervention. Second, 
determining the precise threshold at which a state's obstruction of 
humanitarian access becomes a ``crime against humanity'' remains 
elusive. Third, the invocation of the doctrine could lead a 
recalcitrant regime to close off entirely what humanitarian access 
(however imperfect) currently exists. Finally, the doctrine implies, at 
least in principle, a willingness to consider the use of military force 
to ensure the delivery of aid,\9\ raising both the specter of armed 
resistance and the likelihood of casualties among the intervening 
force. Such military action could exacerbate rather than ameliorate the 
humanitarian catastrophe, and it could be tough to sustain 
domestically.
---------------------------------------------------------------------------
    \9\ Robert D. Kaplan, ``Aid at the Point of a Gun,'' New York 
Times, May 14, 2008.
---------------------------------------------------------------------------
    These concerns are not easily dismissed. They suggest that prior to 
extending the doctrine to any natural disaster, the United States and 
other would-be interveners must be able to answer three questions in 
the affirmative.

   First, does the doctrine apply in the current case?
   Second, are there decent prospects for securing consensus, 
        or at least acquiescence, within the Security Council?
   Third, is the invocation of the doctrine, and its practical 
        implementation, likely to make any tangible difference on the 
        ground, or instead worsen the humanitarian situation?

    Answering these questions will require a judicious assessment of 
nature of the crisis, the spectrum of possible international 
responses--including, but by no means limited to, military force--and 
the likely consequences of any course of action for the flow of life-
saving assistance.
   practical steps to improve humanitarian access following natural 
                               disasters
    There is ample scope for lawyers to debate the boundaries of the 
Responsibility to Protect, including the threshold at which the 
doctrine kicks in. These debates should not however distract us from 
considering practical approaches to improving humanitarian access in 
the aftermath of natural disasters that fall well short of full-fledged 
military invasion.
    A few sensible goals and principles should guide U.S. policy. The 
United States should seek to:
    (1) Clarify state obligations to provide humanitarian access. A 
recurrent limitation of today's global humanitarian system is the 
absence of standing protocols governing access that could avoid delays, 
uncertainties, and obstructionism in the aftermath of natural 
disasters. Many developing, particularly African, countries have 
resisted negotiating any new multilateral agreements, on 
noninterventionist grounds. The United States should work behind the 
scenes to encourage such governments to adopt standing protocols for 
humanitarian aid. The longer term goal should be to establish an 
international treaty regime (or at a minimum regional frameworks) 
enumerating state responsibilities regarding humanitarian access.
    (2) Plan ahead. To avoid being caught flat-footed when disaster 
strikes, the United States needs a more robust framework for 
contingency planning. This would help U.S. officials better anticipate 
where such emergencies may arise; what political obstacles may emerge 
in particular countries; what range of policy options is likely to be 
available; what assets and pressure points the United States has at its 
disposal; and what regional bodies and foreign power wielders might 
have leverage over difficult regimes. Outside of the U.S. military, the 
U.S. Government currently devotes few resources and little time to such 
``over the horizon'' planning. A first step should be to revive the 
Contingency Planning Policy Coordination Committee (PCC) within the 
National Security Council, which met regularly from 2001-2002 but was 
abandoned in the run up to the invasion of Iraq.
    (3) Keep the focus on ``humanitarian space.'' When a major natural 
disaster strikes, the overriding consideration for U.S. policymaking 
should be whether the proposed suite of actions promises to expand or 
shrink the opportunity to save human lives. Other policy goals, 
including as regime change, should be placed on the back burner unless 
there is no other prospect of gaining humanitarian access.
    (4) Give any intervention a humanitarian face, a multilateral 
imprimatur, and a regional dimension. All things being equal, an 
authoritarian regime will be more likely to support (or at least 
acquiesce to) requests for humanitarian access if the effort appears to 
be more humanitarian than military in nature; if the insistence on 
access is endorsed by the U.N. Security Council; and if the relevant 
regional and subregional organizations play a prominent role in 
designing, coordinating, and implementing assistance. In the case of 
Burma, the United States hoped to use naval assets to deliver relief 
directly (as in the aftermath of the Indian Ocean tsunami). 
Unfortunately, what the United States viewed as a promising platform 
for emergency relief appeared to the paranoid junta as a potential 
instrument of regime change.
    (5) Empower others to lead, particularly through regional 
organizations. Where the United States has unfriendly relations with 
the relevant state, efforts to assert U.S. leadership can be 
counterproductive. In such circumstances, there is a strong case for 
adopting a low profile, while encouraging relevant regional and 
subregional organizations to help the U.N. organize and deliver 
humanitarian aid. Unfortunately, outside NATO and the European Union, 
few regional bodies are currently prepared to discharge this 
responsibility.\10\ Thus a priority for U.S. action should be to help 
bolster both the will and capacity of organizations like ASEAN, the AU 
and the OAS to coordinate and deliver humanitarian assistance in their 
neighborhoods, including through joint training and exercises, 
stockpiling of supplies, development of emergency logistical 
infrastructure and interoperable communications, and joint standby 
arrangements to deploy previously earmarked civil and military assets.
---------------------------------------------------------------------------
    \10\ ASEAN in 2005 approved a framework for Disaster Management and 
Emergency Response and has recently begun joint disaster response 
training exercises. The Organization of American States (OAS) in 2007 
established an Inter-American Network for Disaster Management. The 
African Union is beginning to develop an implementation plan for a 
disaster risk reduction strategy approved in 2004. All of these 
initiatives remain in their infancy, however.
---------------------------------------------------------------------------
    (6) Open the diplomatic toolbox. Military force is not the only, 
much less the most desirable, way to change the incentives of bad 
actors. The United States needs to hone a wider array of policy 
instruments to persuade recalcitrant countries to expand humanitarian 
access following natural disasters, beyond showing up off the country's 
coast with warships loaded with troops and supplies. Comprehensive 
strategies of ``coerced consent'' should include:

          a. Enhanced diplomatic pressure, particularly within the 
        Security Council, U.N. General Assembly and relevant regional 
        organizations. Past experience may suggest creative ways to 
        leverage multilateral bodies. When violence erupted in East 
        Timor following the referendum of 1999, the Security Council 
        placed great pressure on Jakarta to ``invite'' a U.N. 
        peacekeeping operation in what remained then a province of 
        Indonesia, including by flying to Dili to hold Council 
        meetings. In the more recent case of Burma, the proposal by 
        France to pursue a Council resolution under the R2P doctrine 
        may have had some instrumental value, in encouraging the 
        Burmese regime to accept an alternative, ASEAN-led humanitarian 
        initiative.
          b. Targeted incentives to change the regime's behavior, 
        including through positive inducements (e.g., hints of aid or 
        trade concessions, debt relief, removal of sanctions) and 
        punitive steps (e.g., trade restrictions, financial freezes, 
        travel bans, and threats of indictment against senior 
        officials.) Given that repressive regimes like Burma and 
        Zimbabwe tend to be heavily sanctioned already, positive 
        inducements may well be more promising avenues to secure 
        behavioral change.
          c. Cultivation of regional players with leverage. Even 
        isolated dictatorships like Burma, North Korea, or Zimbabwe 
        have close ties with one or more large regional players (e.g., 
        China and South Africa). While these traditional protectors may 
        resist interventionist strategies that threaten the stability 
        or nature of friendly client regimes, they may be enlisted 
        quietly to ease restrictions on humanitarian assistance, in 
        return for particular incentives or to burnish their image as 
        responsible global stakeholders.
          d. Military steps short of war. Options include declaring a 
        ``no-fly zone'' over the disaster area, as well as engaging in 
        preventive deployments in nearby countries.

    (7) When considering military action to ensure humanitarian access 
following natural disasters, the United States should adopt the 
following guidelines:

          a. Be realistic. To put the matter bluntly, there is a world 
        of difference between intervening militarily in a small country 
        with weak state capacity, such as in Rwanda, Burundi, or East 
        Timor, and attempting to do so in a massive country like Sudan 
        or one with a large military like Burma (with 500,000 soldiers 
        under arms). Given the requirements and implications of 
        forcible intervention against such countries, policymakers may 
        need to accept inconsistencies in their responses to the 
        obstruction of humanitarian aid.
          b. Treat the use of force as a last resort. The trigger for 
        armed intervention must be set high, limited to the most 
        egregious cases, when peaceful alternatives have been exhausted 
        and the death of massive numbers of people is imminent. It 
        should be undertaken only after sober calculation of the likely 
        lives saved versus lost in any invasion, as well as the 
        perceived stakes for the United States and the implications for 
        a variety of U.S. interests.\11\ Any such action should be 
        consistent with ``precautionary'' principles outlined by the 
        ICISS. That is, military action should be undertaken only if 
        ``diplomatic, humanitarian, and other peaceful means'' have 
        been exhausted; if it is directed to saving lives; if it is 
        proportional to the severity of the crisis; and if it has 
        reasonable prospects of success.
---------------------------------------------------------------------------
    \11\ Stewart Patrick, Policy Planning Staff, U.S. Department of 
State, ``The Role of the U.S. Government in Humanitarian 
Intervention,'' Remarks to the 43rd Annual International Affairs 
Symposium, ``The Suffering of Strangers: Global Humanitarian 
Intervention in a Turbulent World,'' Lewis and Clark College, Portland, 
Oregon, April 5, 2004.
---------------------------------------------------------------------------
          c. Don't go it alone. Particularly when armed force is 
        required, prudence dictates acting with partners to maximize 
        perceived legitimacy and share military burdens. When a storm 
        is brewing, the U.N. Security Council should be the first port 
        of call. The major challenge will arise (as it did in the case 
        of Burma) when the Council is unable to agree on a resolution 
        insisting on humanitarian access and when the relevant regional 
        organization fails for a protracted period to step up to the 
        plate, whether out of weak capacity or fear of alienating one 
        of its Member States. In such circumstances the United States 
        should hold out the possibility of acting through an ad hoc 
        coalition of interested states.
          d. Be prepared to own the aftermath of any armed 
        intervention. Experiences of the last 20 years suggest that 
        ``impartial'' intervention is a delusion. Armed intervention 
        for human protection purposes invariably involves not only 
        delivering life-saving aid but also taking sides. It is also 
        likely to unleash unpredictable consequences (which may include 
        regime change) and may require a significant, long-term 
        international presence. The ``responsibility to protect'' 
        involves not only a responsibility to respond, but also a 
        ``responsibility to rebuild'' once the shooting stops.
          e. Be honest. Finally, domestic U.S. support for any military 
        action can be sustained only if the President is honest with 
        Congress and the American people from the outset, explaining 
        the mission clearly, speaking frankly about the costs and 
        risks, and preparing the country for potential sacrifices. From 
        Somalia to Iraq, such candor has often been conspicuously 
        absent.

    Senator Menendez. Thank you all for your testimony.
    Dr. Luck, is it the U.N.'s view that the Burmese regime 
exercised its responsibility as a sovereign?
    Dr. Luck. Well, I do not know whether the U.N. has a view 
per se. I can give you my view on it, which I think is widely 
shared within the organization, which is, obviously, this is a 
case where international pressure, international encouragement 
was required to get the government to begin to carry out its 
responsibilities as a sovereign state.
    And I think it is very important to remember that under 
responsibility to protect principles that the emphasis is on 
the state carrying out its sovereign responsibilities, and that 
if states do that, they do not have to worry about intervention 
of the coercive sort from the outside, that, in fact, 
responsibility to protect is an ally of sovereignty, not its 
adversary. This should be a natural thing for a government to 
do. One of the principal reasons that states were formed to 
begin with was to protect people, and that is certainly a 
sovereign responsibility.
    Senator Menendez. But it is clear that people died 
unnecessarily in Burma as a result of the sovereign state not 
acting in a way that would have mitigated the loss of lives. Is 
that generally accepted?
    Dr. Luck. I think everyone believes that is true, yes. Only 
over time will we find out what the magnitude has been.
    Senator Menendez. And so then the question becomes at what 
point is the loss of life acceptable before the world acts. I 
certainly heard what you had to say, as well as your written 
testimony. Is it your view that the Rome statute that Mr. 
Schneider referred to that talked beyond systematic murder or 
persecution, that other inhumane acts of a similar character 
causing great suffering, serious injury to body or to mental or 
physical health--is that envisioned in the purview of 
responsibility to protect?
    Dr. Luck. Well, obviously, lawyers debate this in different 
ways. The advice I have gotten has been largely that this does 
not qualify as a crime against humanity. As I suggest in my 
testimony, it is unlikely that a nonresponse or an inadequate 
response by a government to this sort of situation would 
qualify, but it does not mean that it never could. I just think 
it is rather unlikely. It is a fairly high standard.
    Senator Menendez. There is a difference, however, between 
an inept government or a government who does not know its 
limitations. Clearly, I do not think anyone would think this 
and--I think that any reasonable policymaker would not think 
that that is within the scope of the concern.
    So the question is, When a government and/or a regime is 
willing to accept a higher death count in the pursuit of their 
control over the people of that country and is unwilling for a 
period of time in which significant loss of life or injury is 
taking place, at what point does that invoke the 
responsibility?
    I understand your answer that lawyers are saying it does 
not. So, that means that if we have a competent government, 
competent in terms of understanding its limitations, competent 
to the extent that it has a threshold level of the ability to 
provide assistance, but this tragedy is above their ability, 
and their unwillingness to accept the response of help from 
others ends up in significant loss of life at the end of the 
day, is that something that at this point in time we are 
willing to accept?
    Dr. Luck. That is a very good question. A couple of points 
on this.
    Senator Menendez. I am looking for a very good answer.
    Dr. Luck. I will try.
    One part is the question of intent. Was there intent on the 
part of the regime, or is this just part of their pattern of 
perhaps paranoia of the outside world, having a very strict 
sense of being almost autarchic in the sense of sovereignty. 
There are very few regimes in this world that are like that. 
But in those particular cases, there is a pattern that develops 
over time which from the outside may look like a callous 
indifference to the welfare of their people.
    I think Louise Arbour, the High Commissioner for Human 
Rights, made a rather pointed comment about this, which I have 
in my written testimony, suggesting that it has been the 
international tolerance of the human rights violations in that 
country over time that has set the stage for this. And I think 
that connection is an important one.
    But in terms of a trigger or a threshold, that is not the 
way that we approach the responsibility to protect. We think 
that this is a continuum, that even states that are doing 
fairly well could turn to genocide or other things. This is 
certainly possible and has happened in the past. It is not only 
in the developing world. It could happen in the developed 
world. And this should be a continuing watch and a continuing 
effort by the international community to work with states to 
understand what sort of capacities you need internally so you 
do not take this kind of path over time, that makes it less 
likely, that makes it more difficult, that allows international 
attention, an active civil society and judiciary, and all the 
other pieces that you need so you do not turn this way.
    So we do not think that R2P is something that is triggered 
at a particular point. It is something that you should be 
paying attention to all the time, so we do not say, aha, all of 
a sudden, there is X number of people dying. Therefore, we 
should invoke this. This is something that is very much 
preventive. It is very much about capacity-building. It is very 
much an ongoing dialogue between the international community 
and states and very much their civil societies. So we do not 
intend to say what is the threshold body count----
    Senator Menendez. I appreciate the fact that we want every 
state to be responsive to its citizens and therefore whether it 
has the capacity to meet the challenge on its own or whether it 
is willing to open up its doors to others in the world who want 
to help them with that capacity and do it from a strictly 
humanitarian point of view, that is great. And if that was the 
reality worldwide, then we would not have some of the 
challenges we have.
    It seems to me that we are going to be, unfortunately, 
revisiting this set of circumstances time and time again. And 
the question becomes what are the parameters of this.
    Could it not be argued--and I will open up this to the rest 
of the panel as well who might have any commentary--that a 
robust interpretation of the responsibility to protect actually 
acts in a protective manner and that in fact it would give 
states, and particularly states that are not responsive 
necessarily to their citizenry, cause for concern to not pursue 
their sovereign responsibility as envisioned under the 
principle, and that in some respects, it might even be viewed 
as prophylactic in that sense, that it would say I better think 
about this before I close the door to outside help?
    Dr. Luck. Yes, if I could just comment, and then I am sure 
the others will as well.
    We hope that responsibility to protect has some deterrence 
effect; that it discourages countries and leadership going this 
direction. I think Mark Schneider suggested something about 
this in terms of the comments that Kouchner and others had 
made, what some would see as saber rattling. It may not have 
been intended as such. Actually Kouchner had a column in Le 
Monde where he said that responsibility to protect does not fit 
the conditions there. He actually clarified his position over 
time.
    But the very fact that there is noise about such things may 
have helped open the door a little bit, where you have sort of 
a good cop and bad cop situation while the Secretary General is 
there making a case with the leadership. I do not know what the 
Secretary General said to them. It was conceivable that he 
said, look, if you do not want to deal with me, there are some 
others who might want to deal with this in different ways. So 
let us work this through peacefully and cooperatively.
    Also, I think the very creation of the International 
Criminal Court and the idea that leaders can be held 
accountable for their actions, that there is no impunity, is a 
piece of this. The relationship between the responsibility to 
protect and the International Criminal Court or other tribunals 
is a very important one, because leaders have to realize that 
over time they could be held legally accountable if they do not 
act in the way that they ought to.
    Mr. Schneider. I do not think there is any question that in 
this instance the discussion 5 years ago would not have 
incorporated the responsibility to protect as a factor in 
decisionmaking. Today it does. And as a result of the adoption 
of the responsibility to protect by the General Assembly, it 
clearly was brought to bear when China and India urged the 
Burmese general to permit humanitarian agencies to provide 
relief. And it probably encouraged China particularly, to make 
that request to the Government of Burma.
    Now, the one point to emphasize again--if you do find that 
the responsibility to protect applies because there is a 
violation that reaches or crosses the line of a crime against 
humanity--the response is not automatically military. Even in 
this instance, one would argue that a range of responses exist 
that incorporate targeted sanctions, economic pressures, and 
diplomatic actions. So, again, one should not think that there 
is only an issue of does the responsibility to protect apply 
and then is the only option military? That is not the case.
    Dr. Patrick. Yes; just to pick up on that, if I may, sir. I 
think it is very important, as Mark pointed out, that R2P 
envisions a graduated set of responses. As noted, many of us 
make the mistake of treating it really as synonymous with armed 
humanitarian intervention. So I think that is an important 
point to make.
    Your question seemed to be getting at this notion of 
whether or not we should envision a gradually expanded 
definition in a sense of R2P. So it is sort of the opposite of 
defining deviancy downward--the idea that gradually you could 
use it as a lever to cover an expanded number or expanded range 
of human rights considerations that would fall perhaps short of 
the four ones that all agree it kicks with, the four crimes.
    I think we probably should focus mostly on those four 
crimes against humanity at this stage for a couple of reasons. 
One, there is this question of the fragility of the consensus 
that was engineered during the production of the summit 
document. People were quite surprised actually since it was 
quite a normative evolution in international relations that a 
lot of African countries were willing to sign up to this 
potentially interventionist document. So I think once one 
really tries to apply it to all manner of bad human rights 
behavior by all sorts of miscreants around the world, we may 
find that consensus evaporating. There is also the question of 
credibility of enforcing it.
    I do think that one thing we should try to move forward is 
the idea of developing some standard operating procedures with 
respect to the R2P norm, including perhaps a gentlemen's 
agreement on the Security Council with respect to using the 
veto and perhaps keeping that veto in abeyance or requiring a 
double veto at the Security Council level to try to encourage 
some conformity with this norm.
    Senator Menendez. Well, I appreciate that. I just wonder at 
what point do we consider loss of life that is not per se 
genocidal, that is not some of those other categories, but can 
be very significant loss of life with an intentional purpose. 
The intention may not have even been per se to have those 
people die, but it is to enforce a state policy that ultimately 
creates the result of having many people die in pursuit of that 
state policy. That, I think, is a subject to explore because at 
some point, it can rise as significantly as the intention to 
create a genocidal act. And that is what I am personally 
grappling with as we talk about this issue.
    I will say that the inability of the U.N. to pursue a 
course of action that halts the continuing genocidal strife in 
the Sudan, for example, gives many of us cause about believing 
that the United Nations can be a successful vehicle in this 
respect. And what is our responsibility?
    We have a lot of people who make speeches about ``never 
again.'' That is a beautiful speech, but it is very hollow when 
we sit by and see many, many people die and we know what it is 
and we do not act in a manner that pursues stopping the 
incredible loss of life. I think that is one of my core 
concerns, as we think about this in a whole different context. 
How do we deal with that?
    I want to ask one last question particularly to Dr. 
Patrick, but anyone else who has any ideas on this. I am always 
intrigued about broadening the arsenal of peaceful diplomacy 
and initiatives of how we can broaden our arsenal to try to 
pursue some of our goals. And you mentioned it briefly. Could 
you touch upon how you think we should go about that and what 
would be some valued options for us to consider that maybe we 
are not doing now? And if anyone else has views on this, I am 
happy to listen to it as well.
    Dr. Patrick. Sure. No, I would be happy to. Thank you, 
Senator.
    There are several steps that one could take. One of them is 
to try to--I should preface this by saying that in many cases, 
I think we have missed opportunities for what might be referred 
to as
``coerced consent'' where, through a number of different 
instruments of pressure, we could actually get at least enough 
conformity with our desires to avoid a larger confrontation.
    In the past, I think the United States has occasionally 
used the Security Council, as well as the General Assembly and 
other regional organizations, to decent effect. An example of 
this was in 1999 following the referendum in East Timor which 
led to the violence. The Security Council actually traveled to 
Dili and placed enormous pressure on the government in Jakarta 
to actually permit access and also to invite U.N. peacekeeping 
operations. It is one example of which the U.N. Security 
Council occasionally actually has been a reasonably strong 
instrument. So a first step is to increase the robustness of 
our ability to engage at the level of the Security Council and 
within regional organizations.
    Beyond that, I think that there may be avenues to target 
incentives on recalcitrant regimes which we may need to get a 
little bit smarter at employing. These include both positive 
inducements, for instance hints of trade or aid concessions, 
the removal of certain sanctions, and obviously punitive steps. 
Now, one of the difficulties there is that many of the regimes 
we're talking about are really the ``worst of the worst,'' as 
Freedom House calls them, and are already subject to heavy U.S. 
sanctions. So we may have little leeway in terms of additional 
sanctions that are negative in character, but there may 
occasionally be some positive inducements that we can offer; 
symbolic positive inducements to secure behavioral change.
    I think we also can do a better job at cultivating regional 
players that have leverage over particular actors. I think 
there probably has been a lot of quiet diplomacy with the 
Chinese over Burma, for instance, and while I am not privy to 
those conversations it is conceivable that these paid off in 
the junta's eventual outreach to ASEAN. ASEAN's response has 
been a little bit disappointing, in terms of how slow it was to 
actually step up to the plate, but as has been pointed out in 
the previous panel, it is certainly better than nothing.
    So those are just some ideas of the tool kit.
    Mr. Schneider. If I could, Mr. Chairman. Three areas.
    One, as you know, the U.N. adopted the guiding principles 
on humanitarian assistance in the past, but there is no 
enforcement mechanism and there is no requirement that when a 
state fails to meet its obligations, anything happens.
    It seems to me that when you go back and you look at some 
of the obligations to deal with refugees that have been agreed 
to internationally, agreements that do involve some limits on 
national sovereignty, the U.S. Government should think about 
how it might move forward in trying to get an international 
covenant that would state that when there is a humanitarian 
disaster of the nature of Nargis, for example, that countries 
ahead of time will agree to accept, under a United Nations 
flag, or under a nonthreatening bilateral neighborhood flag, 
ASEAN for example, international relief. And it seems to me 
that at least should be pursued.
    The only other thing that I would say is as in this 
hemisphere, even given the difficulties with Cuba, or 20 years 
ago, let us say, with Nicaragua, when natural disasters occur, 
there has never been an impediment to U.S. relief efforts. And 
the question is whether or not there are some agreements, which 
exist in the hemisphere, particularly using PAHO and the OAS 
together, that might be used in other regions.
    Dr. Luck. Another rather searching question. Let me just 
tick off a few things here.
    Though we should not spend all of our time on capacity-
building and prevention, it should be noted that the 
involvement of the U.N., regional agencies, and bilateral 
assistance in development efforts and good governance efforts 
within countries really is an intrusion on sovereignty in a big 
way, and yet countries accept that. So I do not see any reason 
why responsibility to protect principles should not be part of 
those development and capacity-building efforts in those 
countries, and I think it can make a big difference over time.
    Second of all, I do not think that we should underestimate 
the importance of the Secretary General's good offices. It is 
very quiet diplomacy, but can make a big difference. And here, 
how he helped solve this in Myanmar, he really was the one who 
helped push the gate open a little bit farther.
    One thing that is often ignored in the charter is article 
34, which is under chapter VI, a noncoercive pacific measure, 
in which the Security Council can investigate a wide range of 
situations. They do not have to pose an immediate threat to 
international peace and security, as the Council can 
investigate to see whether some day they might pose a threat to 
international peace and security.
    So the Security Council now is going out on these missions 
fairly often--they have just gotten back from Sudan--where they 
actually visit crisis zones. Having the members go and show 
their interest in some of these situations early on might 
actually be quite helpful.
    Also, I personally--I know this is not normally U.N. 
doctrine, but I do not really accept that the use of force 
should always be the last resort. I think that is contrary to 
the charter. Article 42 makes it quite clear--and it was 
debated in San Francisco--that if the Council decides that 
noncoercive measures would be inadequate, that then the Council 
in fact can act. And it may be preventive deployments or the 
show of force that could be done in a noncoercive way but to 
get the message across to people. There could also be mixed 
deployments, some sort of mix of more peacekeeping-like 
military, police, civilians, a mix which is not pure 
enforcement but perhaps puts added pressure on those using 
violence against civilians--you mentioned Somalia, for example. 
There may be places where you do not have a strong government 
and where you need some kind of order, and some kind of 
international mixed effort could help this.
    I do not think we should forget targeted sanctions. People 
often suggest that sanctions never work, but sometimes, when 
targeted against a particular leadership in particular cases, 
they can make a difference.
    And certainly we need to look at all the possibilities of 
building regional and subregional organizations. One thinks of 
AU, ECOWAS, and others. IGAD is rather weak in the Horn. But 
looking at those organizations that have tried to make a 
difference in several places in Africa, they are much more 
willing to take the risks and go early. They do not always have 
the capacity, but they are willing to do it when the rest of 
the international community moans and complains but does not 
want to put any forces on the ground. So if we can help build 
that capacity, that could be very important.
    Finally, if I could say a word about Darfur and the 
responsibility to protect. I think it is worth remembering that 
the massive violence in Darfur started 2\1/2\-3 years before 
the U.N. accepted responsibility to protect as a doctrine. So I 
do not think it is really a fair test case of R2P to, after the 
fact, hope that it is going to make all the difference there. 
And as inadequate, frustrating, and agonizing as the 
international response has been in Darfur, if you compare that 
to Rwanda in 1994, when members of the Security Council were 
trying to deny that anything was going on, at least I think we 
are making historically some progress. It does not help 
necessarily the people on the ground day by day, but I think 
there is an evolution of values now where it is very hard to 
cast a veto in the Security Council to prevent action in an 
unfolding genocide.
    We should look as well at the one situation where the 
responsibility to protect has been applied and no one seems to 
recognize it--it was in Kenya. And we do not talk about Kenya 
because the pieces have been put back together. But the 
Secretary General very consciously, when he went to Adis Ababa 
to speak to the summit of the African Union, when he went to 
Nairobi to speak both to the government and to the opposition, 
he invoked in every case the responsibility to protect 
principle and told them they had to live up to it. And everyone 
accepted it. When he went back to the Security Council, he used 
the same language and they accepted it.
    And Kofi Annan has described his whole mediation effort, 
which was so successful in Kenya, as the first effort to apply 
the responsibility to protect. And there it was largely 
preventive, and yet there were some bad things beginning to 
happen and perhaps it prevented things from getting much worse.
    So we think there are possibilities where it can apply and 
it can make a difference.
    Thank you.
    Senator Menendez. Well, I appreciate all of your testimony. 
This panel was definitely very helpful in exploring some of 
these critical issues. I appreciate, Dr. Luck, your rattling 
off a series of possibilities, along with your other two 
panelists.
    I will just say about the Sudan, I recognize fully that the 
atrocities there preceded the responsibility to protect. Having 
said that, however, there is still much suffering going on, and 
there is still an incredible lack of action taking place. To be 
sitting in the camps either facing the Janjaweed or others and 
to listen to the counsels of patience and delay certainly is 
not something that I would want to be in the midst of if I was 
one of those people sitting in those camps. But I appreciate 
the context of your comments.
    So we thank you all for testifying. It has been very 
helpful.
    The record is going to remain open for 2 days so that 
committee members may submit additional questions to the 
witnesses, and I ask the witnesses to respond expeditiously to 
these questions.
    And since there is no one here for any other comments, the 
hearing is adjourned.
    [Whereupon, at 4:29 p.m., the hearing was adjourned.]

                                  
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