Are ASEAN principles really incompatible with the Rome Statute?

Pointing to the region’s long history with colonialism and foreign interventions, many members of the Association of Southeast Asian States (ASEAN) consider non-interference in domestic affairs as the basis of interstate relations.

With its power to initiate investigations—albeit only when a government is unable or unwilling to do so—the ICC is perceived as undermining that principle by infringing on sovereignty and meddling in what are seen as purely internal affairs. In part because of such thinking, only two of ASEAN’s 10 member states—Cambodia and the Philippines—are ICC members.

Yet absolute sovereignty is in fact a dated concept that does not reflect reality in a region where ASEAN members are required to submit to the World Trade Organization’s dispute resolution mechanism and in some cases to the International Court of Justice—both of which involve concessions of state sovereignty.

ASEAN member states are also obliged by international humanitarian law to prohibit and prevent most ICC crimes. Meanwhile, the principles of the Rome Statute (RS) overlap with international human rights norms already accepted by states in the region. That ASEAN states are already bound by many RS principles is reflected in the official ASEAN position that the ICC is “a positive development in the fight against impunity for crimes against humanity, war crimes and genocide.”

The non-interference argument then becomes untenable: its proponents broadly agree with the substance of the treaty, but are simply unwilling to put it into practice.

With well-developed legal systems and ample opportunity to cooperate with the Court, ASEAN states are unlikely to be judged incapable of investigating and prosecuting ICC crimes. States pushing the non-interference line are more likely to be concerned about being deemed unwilling to prosecute and therefore subject to ICC jurisdiction.

When ASEAN states say they oppose ICC membership because it would infringe upon core principles such as non-interference, they are really saying that they are unwilling to ensure that all perpetrators of war crimes, crimes against humanity and genocide are held accountable.

The people of Southeast Asia deserve better. They deserve justice.

A version of this post appeared in our 2014 Global Justice Monitor.