On the face of it, the four Geneva Conventions of 1949 have a 100% success rate, with all 196 States having committed themselves to abide by their terms.Footnote 1 A generalist reader may be tempted to believe that all States have a common approach to international humanitarian law (IHL). The more discerning reader, however, knows that being party to the Geneva Conventions does not, unfortunately, equate with adherence to their provisions. States demonstrate vastly differing degrees of implementation and enforcement and have different understandings of certain concepts and terms. Self-identifying as democratic and human-rights-respecting is no guarantee against inhumanity, as the US-led “war on terror”, in several of its manifestations including renditions and Abu Ghraib, confirmed. The docket of the European Court of Human Rights evidences that some European States engaged in armed activities are not living up to what should be a collective vision of humanity at all times, whether in peace or in war.Footnote 2
What of the Asia-Pacific region?Footnote 3 Like the rest of the world, the nations of the region are now all party to the Geneva Conventions, but while some States have long implemented these in domestic law,Footnote 4 others were late joiners,Footnote 5 and a number of them have maintained substantial reservations or entered declarations or understandings that colour their engagement.Footnote 6 Simon Chesterman has shown how Asia's ambivalence towards international law is manifested through under-participation and under-representation.Footnote 7 A plurality of perspectives from the region about wider international law is borne out in articles published in the Indian Journal of International Law,Footnote 8 the Chinese Journal of International Law,Footnote 9 the Korean Journal of International and Comparative Law Footnote 10 and the Asian Journal of International Law.Footnote 11 New works, such as The Oxford Handbook of International Law in Asia and the Pacific and Asia-Pacific Perspectives on International Humanitarian Law, present expert views on and from the Asia-Pacific region and reveal great diversity, with no all-encompassing single perspective.Footnote 12 These publications take a non-linear, non-mechanical approach based on discrete topics within broad clusters of issues, indicating that efforts to decipher the region's pluralism are not best facilitated by an intellectual straitjacket which diminishes the existence, meaning and value of diversity. They draw out two dominant features: firstly, conservatism and a tendency towards the centuries-old notion of the all-powerful State that rejects external scrutiny or controls, and secondly, diversity and fragmentation in terms of normative approach and practice.
Acharya rightly asserts that Asia is not “one”, and that there is no singular idea of Asia.Footnote 13 Why should there be a single perspective in a region that is not drawn together into a grouping such as the European Union, which has common approaches and even coordinates external action in certain areas? The groupings that do exist, such as the Association of Southeast Asian Nations (ASEAN), the South Asian Association for Regional Cooperation and the Pacific Islands Forum are sub-regional, decentralized and of a loose nature.Footnote 14 This reflects the reality that the countries of the region are diverse, in terms of ethnicity, religion, culture, history, legal systems, political structures, security situations, socio-economic development and roles in the international community. The accident of being neighbours or being located within a man-made geographical concept does not mean that they have, or should have, the same perspectives on or approaches to IHL. Take the degree of embedding of IHL in the armed forces. Australia and Indonesia may be direct neighbours, but their militaries’ approaches to IHL are profoundly different.Footnote 15 The situation of nuclear weapons can also provide some insight. The nations of Oceania, Australasia and Southeast Asia have rejected nuclear weapons,Footnote 16 but four of the world's nuclear powers are from the Asia-Pacific: two from East Asia (China and North Korea) and two from South Asia (India and Pakistan). And Japan, the one and only country to have borne the brunt of nuclear weapons in armed conflict, has a surprisingly nuanced approach to the prohibition of nuclear weapons.Footnote 17 IHL in the Asia-Pacific region is very much contextualized, depending on factors such as country, local and international politics, culture, religion, time frame, political doctrine, actors and situation of violence. These factors obviously mean that assertions about IHL in the Asia-Pacific are not absolutely or equally applicable to every single country in the entire region. Universality seems only to relate to regional participation in the Geneva Conventions and the Convention on the Rights of the Child.Footnote 18
The uncovering and analysis of the complex and large-scale realities of IHL application in such a large swathe of the globe is not facilitated by applying rigid academic approaches such as tracking a single, narrow technical issue (e.g., the implementation of the duty to take precautions in attack) across every single country. The present author has, instead, drawn from close scrutiny of the literature, in particular the most recent and authoritative, and applied the experience of years of working in and on the region. In this way, it has been possible to extract convergence in perspectives and approaches. This method is not exceptional, but the endeavour is in itself an original contribution, and it facilitates an innovative entrée into deciphering the Asia-Pacific's complex IHL landscape. The result is that the author is able to argue the following. First, the norm of humanity in armed conflict, which underpins IHL, has deep roots in the region.Footnote 19 This, to some extent, explains why there is no conceptual resistance to IHL in the region, in the way that exists within the human rights doctrine. Second, there has been meaningful participation of States from the region in IHL law-making, both in terms of treaties and custom. Third, some Asia-Pacific States are actively contributing to the development of emerging or evolving areas relevant to IHL, such as weapons, outer space, cyberspace and the protection of the environment in armed conflict. Given the fragmented reality of the region, this leads inexorably to the issue of contradiction. How is it that in a region where there is discernible positivity towards the norm of humanity in armed conflict, there are so many armed conflicts with very serious IHL violations emerging? What happened to norm internalization? These issues will be considered in the second section of the article. This examination leads to a third and final section, a concluding reflection on what all of this reveals about IHL in the Asia-Pacific.
The nature of IHL in the Asia-Pacific is such that the present author does make some cautious generalizations; the grounds for making them are presented for the reader's consideration in the first section, and the contradictions are addressed in the second. This paper is about the Asia-Pacific experience, and the author is not suggesting that such features are unique to this part of the world. It should also be obvious that the present work attempts to make sense of a complex situation. The approaches of many regional States, large and small, powerful and less so, are referenced in this paper. However, some States have practice that is more accessible, and the author has obviously had to exercise some selectivity for a publication of this nature. Readers should examine the cited sources for the details and reasoning that cannot be presented in this article.
Assertion 1: The norm of humanity in armed conflict has deep roots in the Asia-Pacific region
The countries of the Asia-Pacific region do not display conceptual or ideological animosity towards the norm that requires humanity in armed conflict, in contrast to their well-documented ambivalence about human rights.Footnote 20 There is also nothing to suggest that IHL, as a collection of specific rules arising from that one fundamental norm, is seen as a foreign project imposed on the region. Review of the submissions during the International Court of Justice (ICJ) advisory proceedings on the Legality of the Threat or Use of Nuclear Weapons Footnote 21 and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Footnote 22 reveals that Australia, Bangladesh, the Democratic People's Republic of Korea (DPRK), India, Indonesia, Japan, Malaysia, the Marshall Islands, Nauru, New Zealand, Pakistan, Palau, the Philippines, Samoa and the Solomon Islands presented themselves as great humanitarians and champions of the IHL regime. There were, however, some nuances. Japan, very interestingly, held that “the use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation” and repeatedly emphasized the necessity of nuclear disarmament and a desire to promote nuclear disarmament, but studiously avoided discussing the legality of the use of nuclear weapons.Footnote 23 Hirose explains that Japan takes a “realistic approach” because under the Japan–US Security Pact, Japan benefits from the so-called “nuclear umbrella” of the United States, and this has become an indispensable component of Japan's security policy.Footnote 24 Taking these positions, along with others, into account, the ICJ's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons determined that the “fundamental rules [of IHL] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”.Footnote 25
However, the rhetorical public embrace of humanitarianism illustrated above goes far back in time for some Asia-Pacific States. We can see something more sophisticated than a simplistic belief in a moral duty “to be kind to the needy”. Some of the earliest participants in IHL treaties and arrangements have been from the region. Three of the twenty-six participating nations in the Hague Peace Conference in 1899 were from the Asia-Pacific region: Siam, China and Japan.Footnote 26 Siam, one of Southeast Asia's great Buddhist warrior kingdoms, began to engage in IHL treaty participation as long ago as 1899, becoming party to Hague Convention II on the Laws and Customs of War on Land (1899), Hague Declaration IV (2) concerning Asphyxiating Gases (1899) and Hague Declaration IV (3) concerning Expanding Bullets (1899).Footnote 27 The Thai Red Cross Society was founded in April 1893 as the Red Unalom Society, before the nation became a party to the then Geneva Convention.Footnote 28 In fact, Yeophanthong explains that King Vajiravudh of Siam was open to merging both Western legal and political ideas with Buddhist values: he published a volume on international law in 1914, which included a substantial section devoted to explaining the laws of war.Footnote 29 That engagement has continued to the present Thailand, which is a signatory to the Arms Trade Treaty (2013)Footnote 30 and was one of the first States to sign and ratify the Treaty on the Prohibition of Nuclear Weapons (TPNW) on 20 September 2017, the first day it was open for signature.Footnote 31
Humanitarian ideas do indeed have “deep roots in most Asian societies, being the products of complex social and religious systems”.Footnote 32 Yeophantong argues that key influences on the evolution of humanitarian thought and practice, at least in the Southeast Asian region, are (1) communitarianism, meaning a shared existence with resulting common social obligations; (2) religion, faith and non-religious belief systems; (3) political theories on statecraft and just war; and (4) identity and security politics.Footnote 33 Humanity in warfare in many cultures of the region predates the positivist IHL framework that emerged in Europe in the nineteenth century, and even the Western European chivalric culture in which too many scholars situate the roots of humanitarianism in armed conflict.Footnote 34 India, China and Japan will be considered in the following paragraphs, but they do not stand alone. The many ethnic groups of the Indonesian archipelagoFootnote 35 and the Pacific islandsFootnote 36 had their own laws of war. Humanitarian concerns in war can be identified in Hinduism,Footnote 37 BuddhismFootnote 38 and Sikhism.Footnote 39 For years, experts have been writing about an Islamic international law, with areas such as Islamic humanitarian law, the Islamic jus ad bellum and the Islamic jus in bello.Footnote 40 Islam has played a major role in some conflicts in the region, such as in Indonesia's Aceh.Footnote 41 From the work done in the Philippines by Santos Jr and others, we can see that the common points between the Islamic law of war and IHL have provided a basis for dialogue with some Islamist fighters, notably the Moro National Liberation Front and the Moro Islamic Liberation Front, although not the more hard-line Abu Sayyaf group.Footnote 42
A closer examination of India, China and Japan explains further why, at an intellectual and cultural level, the concept of humanity in war has traction in the region. The use of force in ancient India was highly regulated. Sinha explains that “[i]n ancient times … the laws of war were designed to bring out the best and not the worst of human traits”.Footnote 43 Largely based on Manu's Code of Law (Manava Dharmashastra or Manu Smriti), which started to be compiled around 200 BC from earlier sources, these rules included the following:
1. “a warrior (Kshatriya) in armour must not fight one who is not so clad”;
2. “one should fight only one enemy and cease fighting if the opponent is disabled”;
3. “aged men, women and children, the retreating, or one who held a straw in his lips as a sign of unconditional surrender should not be killed”;
4. it was prohibited to attack “the fruit and flower gardens, temples and other places of public worship”;
5. “poisonous weapons should not be used, inasmuch as they involve treachery”; and
6. it was prohibited to use weapons that cause unnecessary suffering, such as poisoned or barbed arrows.Footnote 44
China is another country with an ancient tradition of humanitarianism in philosophy and the military sciences that predates Henry Dunant and even medieval European knights, so the advent of modern IHL was conceptually acceptable there.Footnote 45 Some of these rules have been identified as far back as the Spring and Autumn Period (770–476 BC) and the Period of the Warring Kingdoms (475–221 BC).Footnote 46 These were eventually recorded, and two sources are particularly well known: Sun Tzu's The Art of War and Sima Rangju's The Precepts of War. The Art of War counselled a strategic approach reconciling fighting, a necessary evil, with Taoist principles. It recommended that (1) captured soldiers should be kindly treated and kept alive; (2) it is better to recapture an entire army than to destroy it, and to capture an entire regiment, a detachment or a company than to destroy them; and (3) the skilful leader subdues the enemy's troops without any fighting.Footnote 47The Art of War described the noble commander as one who obtained victory with minimal violence, including to the enemy fighters; “a commander should not seek the total annihilation of the enemy”.Footnote 48 Rangju's work is “considered by all as a code of war which codified rules of law on warfare in Ancient China”.Footnote 49 Scholars have also documented other ancient rules and practices concerning humane treatment of the disabled, the wounded, the sick and the dead in war.Footnote 50 The Russo-Japanese War of 1904–05 saw the establishment of the Shanghai International Red Cross Committee (which became the Red Cross Society of China in 1912).Footnote 51 1904 was also the year that China became a party to the Geneva Convention of 1864.Footnote 52 Of the other early treaties, China is party to Hague Convention III on Maritime Warfare (1899), Hague Declaration IV (1) prohibiting Projectiles from Balloons (1899), the Hague Convention on Hospital Ships (1904), the Geneva Convention on the Wounded and Sick (1906), and Hague Convention XI on Restrictions of the Right of Capture (1907).Footnote 53 Today, China is also party to Additional Protocols I and II to the Geneva Conventions (AP I and AP II),Footnote 54 and hosts the East Asia Delegation of the International Committee of the Red Cross (ICRC). Since November 2007, China has had a national committee on IHL as well as academic institutions dedicated to the study of IHL (for example, at Wuhan and Peking universities). As for practice, Ru Xue argues that the People's Liberation Army (PLA) has long embraced humanitarianism in war, and has an active programme of IHL instruction.Footnote 55
Japan's notorious inability to reconcile traditional practices with the international protection regime for prisoners of war (PoWs) in World War II has obscured a far more complex picture.Footnote 56 Sun Tzu's Art of War, with its Taoist principles balanced with shrewd pragmatism, was first introduced to Japan in the eighth century by the monk Kibino Makibi; “Since then, ‘Art of War’ has received the devoted attention of political and military leaders of Japan”.Footnote 57 Knutsen has shown how in the fourteenth and fifteenth centuries, Japanese masters of Heiho (the Art of War) were catalysts for the dissemination of Sun Tzu's teachings within the warrior community.Footnote 58 These teachings are said to have influenced Japanese military philosophy in World War II, including the surprise attack on Pearl Harbour in 1941.Footnote 59
IHL is about humanitarianism, and Japan's earliest IHL treaty participation dates back to its participation in the 1864 Geneva Convention, in 1886.Footnote 60 The Japanese Red Cross Society was founded in 1877 as the Hakuaisha, or Philanthropic Society, to provide humanitarian assistance during a domestic armed rebellion.Footnote 61 It later changed its name to the Japanese Red Cross Society and joined the Red Cross family in 1887.Footnote 62 Japan indicated agreement with the principles of IHL by becoming party to almost all the IHL treaties between 1899 and 1907.Footnote 63 Furthermore, Japan was the first Asian country to participate in the International Conference of the Red Cross and Red Crescent (the fourth, held in Karlsruhe, Germany).Footnote 64 The Empress Shôken Fund, created in 1912 by the Empress of Japan, has since then been allocating grants to National Red Cross and Red Crescent Societies for projects involving disaster preparedness, health care, blood transfusion services, young people and first aid.Footnote 65 Today, it is hard to deny that Japan's humanitarian credentials in East Asia continue to be tainted by the shadow of World War II, but even so, the country presents itself as a champion of IHL and actively urges States from the region to enter into the Additional Protocols.Footnote 66
These three country illustrations – India, China and Japan – do not stand in isolation. In 1996, Judge Weeramantry from Sri Lanka reminded the world about Hinduism's two pivotal morality epics, the Ramayana (the story of Rama's journey) and Mahabarata (The Great Chronicle of the Bharata Dynasty); these are morality tales involving profound reflections on human nature, law and justice, including the norms and practices of fighting in accordance with Manu's Code.Footnote 67 Hinduism (and also Buddhism, which has not been discussed in the preceding section due to lack of space) spread beyond India.Footnote 68 Scenes from both epics are memorialized on stone inscriptions and adorn temples across Southeast Asia, from the oldest Hindu kingdom of the region (Funan, spanning parts of today's Vietnam, Cambodia and Thailand) to Pagan (Burma/Myanmar), Angkor Wat (Cambodia), the temples of Bali (Indonesia) and Ayodhya (Thailand). The Ramayana and Mahabarata have been adapted for local audiences in Burma/Myanmar, Thailand, Cambodia, Laos, peninsular Malaysia, Java and Bali, “and the story continues to be told in dance-dramas, music, puppet and shadow theatre throughout Southeast Asia”.Footnote 69 As for the dissemination of Sinic approaches to armed conflict, Sun Tzu's teachings influenced Chinese fighting for centuries and have been traced in Mao Tse Tung's own instructions; both inspired the operational approaches of modern Chinese, North Korean and Vietnamese armed forces.Footnote 70The Art of War's influence in Japan has previously been considered. The use of Sun Tzu's military strategies and tactics by the North Vietnamese general Vo Nguyen Giap, notably in the areas of knowledge of oneself and the foe, use of deception, and use of the strategic goal of breaking the enemy's will, has been well studied.Footnote 71
Assertion 2: There has been meaningful participation in IHL law-making in the Asia-Pacific regionFootnote 72
Treaties
The historic engagement of Thailand, China and Japan in the early IHL treaties has already been considered above.
Scrutiny of the three volumes of the Final Record of the Diplomatic Conference of Geneva of 1949 show that some Asia-Pacific States were active in the crafting of the Geneva Conventions.Footnote 73 The Conference took place at the start of the age of decolonization, and eight out of the fifty-nine participating States (13.5%) were from the Asia-Pacific: Australia, the Republic of the Union of Burma, China, India, New Zealand, Pakistan and Thailand.Footnote 74 The Philippines did not participate officially, but was present and signed all four Conventions.Footnote 75 Ceylon, later to be known as Sri Lanka, took the same approach, but it did not sign the fourth Convention on civilians.Footnote 76 The extent of the Asia-Pacific countries’ participation ranged from light (Thailand) to active (Pakistan, Burma, China) to very active (Australia, New Zealand, India) engagement. Some delegations were one-person (e.g. Burma), while others were on the large side (e.g. China). Participation of the Asia-Pacific States took various forms. Several delegations were represented in leadership positions and on committees. Colonel W. R. Hodgson, head of the Australian Delegation, was appointed first vice-president of the whole Conference. India's Sir Dhiren Metra chaired Committee I on the Wounded and Sick and Maritime Warfare Conventions, and Pakistan was a member of this committee. Thailand and Burma were on the Coordination Committee. Delegations from India and Pakistan assisted in the work of the Medical Experts Committee.
Two of the many activities of Asia-Pacific States at the conference can be cited at some length to show that these States’ participation in the making of the Geneva Conventions was genuine, and not ornamental. The first is the combined effort by India and Burma to seek to replace the red cross on a white background with a single new emblem that could be accepted by all as being neutral, thus avoiding the need for exceptions such as the red crescent, the Persian lion, and the Star of David that Israel was seeking. India's proposal had been voted down in Committee I. General Tun Hla Oung, the Burmese delegate, tabled its re-examination in the Plenary Assembly, alternatively suggesting an amendment to Article 31 to the effect that all red symbols on white grounds whose use had been duly notified should be given recognition as distinctive emblems. General Oung then addressed himself to “a vast majority of delegates of this Conference who belong to one definite race and one definite religion”.Footnote 77 He claimed that he, like everyone else (possibly not including the Israelis, who were apparently being contradictory), wanted to remove multiplicity of emblems. With the existing symbol being a reversal of the Swiss flag, General Oung cautioned against the use of “national emblems in the international field”, and of religious signs. Speaking to “a religious feeling” and pressures from home about the “religious significance of the red cross”, he explained: “I cannot now conscientiously go back to my country and to my men and tell them that it has no religious significance.”Footnote 78 General Oung and India lost the battle of the emblem. Today, we still have the red cross on a white background as the visible sign of protection in IHL, the red crescent continues to be formally recognized as having the same function, and since 2005 the red crystal has been available for situations where the existing emblems are not acknowledged.
Despite being Burma's one and only representative, General Oung's voice is to be heard repeatedly across the records, bringing incision, directness, command of documents and real-life experiences of what it was like to be a soldier and a prisoner of war (PoW).Footnote 79 General Oung also provides the second example of the engagement of Asia-Pacific delegates in the 1949 process. He submitted a motion to reject the whole of common Article 2A (later to become common Article 3).Footnote 80 The motion was rejected and Article 2A was adopted by thirty-four votes to twelve, with one abstention. General Oung spoke forcefully and at unusually great length against the existing draft, describing it as an incitement and encouragement to insurgency.Footnote 81 It was “an Article which happens to be one of the longest, vaguest and most dangerous to the security of the state in the Convention”.Footnote 82 In addition to his opposition to the regulation of non-international armed conflicts (NIACs), General Oung also identified, with immense foresight, weaknesses in the draft that would come to haunt IHL for years to come and would only be clarified in the celebrated Tadić decision.Footnote 83 General Oung noted that “no attempt has been made to define the phrase ‘armed conflicts not of an international character’”.Footnote 84 He observed that, through the phrase “parties to the conflict”, the insurgent party was being, “rightly or wrongly, given a place in international law”,Footnote 85 an issue that would re-emerge at the Diplomatic Conference of 1974–77 and which led to AP II being stripped of the language “parties to the conflict”.Footnote 86 After referring to the words “each Party to the conflict shall be bound to apply”, General Oung posed the question: “May I ask how it is proposed to bind the rebels?”Footnote 87 This is, of course, a question that is still giving the international community difficulty today.Footnote 88 He also opined that the simple fact of having such an article in an international convention “will automatically give the insurgents a status as high as the legal status which is denied to them”.Footnote 89 It was a far-sighted intervention, but common Article 3 was adopted and did go on to become what is arguably the most important provision in all of IHL.Footnote 90
There were many other interventions from Asia-Pacific countries. For example, in the Plenary Assembly on the wounded and sick convention, New Zealand revisited earlier concerns with Article 22.Footnote 91 There had been long discussions in Committee I about the status of medical personnel and chaplains after capture, and New Zealand delegate Mr Quentin-Baxter again suggested amendments to the Committee's text, but these were rejected.Footnote 92 Representing China in Committee III on civilians, Mr Wu considered that even after the conclusion of hostilities or the occupation, protected persons should not be transferred to a country where they had legitimate reasons to fear persecution. The granting of asylum to political refugees was in accordance with international usage.Footnote 93 Mr Wu, in the same committee, pointed out that placing “the offence of destruction of property under the title of reprisal would minimise the crime of wanton destruction and sheer vandalism”, and sought for the provision's omission, or alternate formulation. He expressed his concern to alleviate the suffering of war victims, and in principle he supported a Soviet amendment that “provided for the prohibition of destruction of all categories of property except in the case of military necessity”.Footnote 94
The Asia-Pacific role increased in the 1974–77 discussions on revising the Geneva Conventions. The region's numbers had been significantly boosted by the decolonization process, and the Conference was famously able to expand the application of IHL in AP I to peoples engaged in armed conflicts in the exercise of their right to self-determination.Footnote 95 Several provisions of AP I are linked to this extension. One of them is Article 44, loosening the principle of distinction in certain situations. Kittichaisaree charts the evolution of greater protection for “freedom fighters” in international law, and notes how during the negotiations, North Vietnam, North Korea and Pakistan insisted that guerrilla fighters in national liberation situations need not distinguish themselves; “otherwise, they would be subjected to counterattacks and overwhelming repression by the latter's better equipped armed forces”.Footnote 96
Ironically, AP I, ratified globally by 174 States, has not been very popular in a region that has also had its fair share of post-liberation internal conflicts.Footnote 97 The dwindling number remaining outside the Protocol include Bhutan, Burma/Myanmar, India, Indonesia, Malaysia, Marshall Islands, Nepal, Singapore, Sri Lanka, Thailand, Pakistan and Tuvalu. Of those that are party, there are reservations/declarations/understandings from Australia, China, Japan, Mongolia, the Philippines and the Republic of Korea.Footnote 98 New Zealand entered a substantial interpretative declaration.Footnote 99
There is another noteworthy example of the region's contribution to IHL treaties. Sivakumaran observes how the delegate for Pakistan is often given credit for “saving” AP II.Footnote 100 As many know, this instrument had been through a difficult drafting process, and there was much disagreement about NIACs. During the Conference, a decision was taken to negotiate two protocols in committee, one for internal and one for international armed conflicts (IACs). However, “the day before the adoption of Protocol II by the Conference in plenary session, the draft submitted by the committees was considered to be too detailed and was unacceptable to certain delegations”.Footnote 101 There was genuine concern about the possibility of not being able to agree a protocol for NIACs. The delegation from Pakistan then played an important role in facilitating the adoption of a “simplified draft”.Footnote 102 The Pakistanis canvassed other delegations and submitted amendments to the Committee draft, and eventually submitted a compromise draft protocol. The last-minute intervention led to AP II being adopted. Even so, this protocol is even more warily regarded in the Asia-Pacific than AP I. There are 169 States Parties, but Asia-Pacific States comprise almost all of those remaining outside: Bhutan, Burma/Myanmar, India, Indonesia, Kiribati, Malaysia, the Marshall Islands, Nepal, Papua New Guinea, Singapore, Sri Lanka, Thailand, Tuvalu and Vietnam.Footnote 103
The Asia-Pacific contribution can also be seen in the matter of nuclear weapons, which have a particular resonance in the region. Not only were the world's first atomic bombs used in wartime against the cities of Hiroshima and Nagasaki, but nuclear weapons came to be tested by the United States, the United Kingdom and France in the Pacific and Australia, with devastating environmental and human consequences.Footnote 104 As a result, the affected and neighbouring nations have long been vocal in their opposition to nuclear weapons and testing. The Pacific Island nations have been instrumental in anti-nuclear treaty-making processes, notably the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty, NPT), the 1996 Comprehensive Nuclear Test Ban Treaty and the TPNW (not in force).Footnote 105 Litigation has ranged from New Zealand and Australia's challenge of French nuclear testsFootnote 106 to the most recent attempt, that of the Marshall Islands against India, Pakistan and the United Kingdom.Footnote 107 New Zealand, fuelled by an active civil society movement, played a pivotal role in the co-called “World Court Project” which led to the ICJ's 1986 Advisory Opinion on the threat or use of nuclear weapons.Footnote 108 The Pacific Island States and ASEAN have declared their regions to be nuclear-weapons-free zones.Footnote 109 However, as noted in this article's introduction, the situation is more complicated. The wider region is home to four nuclear powers, and Japan's approach as a victim State is notable. Japan is party to the NPT as a non-nuclear-weapon State, yet the Japanese government refused to participate in the negotiations for the TPNW and voted against it when it was adopted at the UN General Assembly in July 2017.Footnote 110 Singapore was the only participating country to abstain from the TPNW. However, Singapore is part of the ASEAN nuclear-free zone and stands against nuclear weapons; the abstention was because of unhappiness about the short time frame, and the failure to include Singaporean proposals.Footnote 111 And of course, the Asia-Pacific's nuclear-weaponized States, most notably North Korea, India and Pakistan, continue to pose acute threats to regional and global well-being.Footnote 112
The Vietnam War provides a final example of a conflict in the region that played a major role in the development of IHL.Footnote 113 The legal issues that arose were many, including:
1. whether IHL was applicable in the first place (North Vietnam challenged IHL's applicability to what it called a war of aggression) and, if so, what kind of conflict it was (i.e., an IAC between North and South Vietnam, a NIAC, a national liberation struggle, or an internationalized or mixed conflict);
2. whether the IHL rules in force at the time were adequate in protecting civilians and civilian objects;
3. whether the IHL rules of the time could adequately regulate means and methods of warfare that were employed during the conflict; and
4. how combatants captured while fighting clandestinely should be dealt with under IHL.
These questions would later feed into the development of IHL. Another important example is the environment. Sir Kenneth Keith, who took part in the negotiations at the 1974–77 Diplomatic Conference on behalf of New Zealand, has recalled how environmental issues had become a matter of international concern in the years leading up to the Conference:
It is also true of course that the widespread use of Agent Orange and other defoliants in Viet Nam were having an impact as well. That haunting photograph of the young girl running down the road naked after she had been bombed with napalm is an iconic image of the Viet Nam War and had a huge impact on the international community. There was a sense that, in a general way, quite apart from armed conflict, the environment was being threatened and specifically in relation to some of the methods that were being used in Viet Nam and Laos at the time of the Diplomatic Conference.Footnote 114
Some of the practices during the Vietnam War “directly prompted States to develop new rules of IHL”.Footnote 115 Concretely, the American use of napalm “significantly influenced the subsequent development of IHL to regulate the use of incendiary weapons”.Footnote 116 The most striking example in terms of treaty law is of course Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (on incendiary weapons).Footnote 117 Also, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted a year before the Additional Protocols, “was an important development in preventing the use of environmental modification techniques, such as the cloud seeding operations during the Viet Nam War”.Footnote 118 In AP I, Article 35's direct line to the use of defoliants in the Vietnam War is well known.Footnote 119 Some of the other rules adopted in AP I, such as the protection of civilians and civilian objects from direct as well as indiscriminate attacks, the principle of distinction, and the rules on attacking works or installations containing dangerous forces and the status of captured combatants, also link to experiences from this conflict.Footnote 120
Custom: Opinio juris and State practice
There has been both invisibility and visibility in respect of custom in the Asia-Pacific region.
World War II notoriously played out in enormous swathes of the region, with countless atrocities. After the war was over, there were many war crimes trials. Readers of this journal will know about Nuremberg and that tribunal's poor relation, the underestimated International Military Tribunal at Tokyo, which tried on the leaders of Japan apart from the emperor. But until recently, few knew about the approximately 2,300 war crimes proceedings in more than fifty locations (not counting trials of collaborators) by ten different authorities including the returning colonial administrators, the Philippines and China, with trials spread out over a ten-year period: around 5,700 Japanese, Koreans and Formosans were prosecuted, with approximately 4,500 found guilty and just over 900 executed.Footnote 121 This was evidence of opinio juris and State practice from the Asia-Pacific region and could have been used for identifying the content of concrete rules of customary international law to be applied at the ad hoc international tribunals that began operating in the 1990s.Footnote 122 Some of these cases, had they been considered, could have resulted in different analysis and outcome. Sadly, it is only in the last ten years or so that this wealth of opinio juris and State practice from the World War II trials has been brought out of the dusty archives by scholars.Footnote 123
To what extent was the practice and opinio juris of Asia-Pacific States considered in the ICRC's Customary Law Study?Footnote 124 Sivakumaran reports on a mixed picture.Footnote 125 The Study “made good use of the practice of Asia-Pacific States and there was representation of States generally”,Footnote 126 but the domestic case law of Asia-Pacific States on matters of IHL “appears to be less prominent than the case law of other states”.Footnote 127 An electronic search of the Study's citations of random Asia-Pacific countries reveals that Australia was cited 508 times, the Philippines 168 times, Indonesia 136 times, China 114 times, India ninety-eight times, Bangladesh seventy-nine times, Malaysia seventy-four times, Sri Lanka twenty-eight times, Thailand sixteen times and Myanmar nine times. By way of further comparison, the United States was cited 952 times, and the United Kingdom 626 times. This does not correlate to the depth of engagement with armed conflict. Sivakumaran provides one plausible explanation: readily available military manuals have a significant role in making national practice accessible for inclusion in such evaluations of customary IHL.Footnote 128
The then newly adopted Geneva Conventions were tested in the Korean War of 1950–53, and practice in relation to repatriation of PoWs led to a softening of Geneva Convention III's Article 118 on repatriation of PoWs. Article 118 is based on the assumption that PoWs would be eager to return home and provides that PoWs “shall be released and repatriated without delay after the cessation of hostilities”.Footnote 129
None of the parties had ratified the Geneva Conventions at that stage, but they made unilateral declarations pledging to abide by the terms of the Conventions.Footnote 130 Kim argues:
To some extent, and despite their pledges, all sides behaved as if the convention did not exist. … [T]he soldiers of both sides seemed not to know what a POW was, the rights that a POW had, and the way that impacted on how the individual soldier could behave towards the POW.Footnote 131
The practice was, in other words, abysmal. Against this backdrop, the issue of PoWs who do not wish to be returned or repatriated or wish to seek asylum arose, delaying the reaching of an armistice.Footnote 132 The problem was that Geneva Convention III does not contain a provision that is the equivalent of Article 45(4) of Geneva Convention IV protecting civilians; it has no protection against refoulement. What it does have is a provision that sick and wounded PoWs cannot be repatriated against their will, but this is obviously not the same thing as a prohibition against refoulement.
Thousands of North Korean and Chinese PoWs did not want to be returned home. The United States, negotiating for the United Nations (UN) force in its command role, argued that there should be freedom of choice for the individual PoW; the Communists took a literal reading of Article 118 and insisted that they had the right to have all their PoWs returned, regardless of the personal wishes of individuals.Footnote 133 As the negotiations were going on, the UN General Assembly adopted Resolution 610 (VIII) on 3 December 1952, affirming that unwilling PoWs should not be forced back to their home countries.Footnote 134 Rifts in the UN coalition led to South Korea's prime minister, Syngman Rhee, unilaterally liberating more than 27,000 North Korean PoWs who did not wish to be repatriated.Footnote 135 The compromise reached on PoWs was set out in Article III of the Panmunjom Armistice Agreement of 27 July 1953.Footnote 136 All the sick and injured PoWs who insisted on repatriation were to be returned home with priority, and “each side shall, without offering any hindrance, directly repatriate and hand over in groups all those prisoners of war in its custody who insist on repatriation to the side to which they belonged at the time of capture”.Footnote 137
In international law, subsequent State practice can affect the way that treaty provisions are interpreted.Footnote 138 The practice on voluntary repatriation of PoWs that began in the Korean War does appear to have adapted the interpretation of Article 118 beyond its text. Sassòli asserts that State practice has continued to develop in the direction of respecting the PoW's wishes.Footnote 139 This confirms the ICRC's Customary Law Study, which reports that the ICRC's practice of requiring repatriation to be voluntary is accepted by States. The practice
has developed to the effect that in every repatriation in which the ICRC has played the role of neutral intermediary, the parties to the conflict, whether international or non-international, have accepted the ICRC's conditions for participation, including that the ICRC be able to check prior to repatriation (or release in case of a non-international armed conflict), through an interview in private with the persons involved, whether they wish to be repatriated (or released).Footnote 140
The Vietnam War, discussed in the previous section in relation to treaties, also features strongly in the ICRC's Customary Law Study. It has been considered in relation to the identification of rules such as Rule 44 (“Due Regard for the Natural Environment in Military Operations”), Rule 75 (“Riot Control Agents”), Rule 45 (“Causing Serious Damage to the Natural Environment”), Rule 54 (“Attacks against Objects Indispensable to the Survival of the Civilian Population”), and Rule 23 (“Location of Military Objectives outside Densely Populated Areas”).
Assertion 3: Some Asia-Pacific States are contributing to emerging or evolving areas relevant to IHL: The examples of weapons, outer space, cyberspace and the protection of the environment in armed conflict
The Geneva Conventions were agreed years before the majority of Asia-Pacific States gained their independence. As many know, the lack of global participation in the making of older treaties has for some time been the subject of criticism from this part of the world.Footnote 141 Doctrinally, new States are bound by international law that exists at State creation; in relation to multilateral treaties such as in the area of IHL, they may either join without reservation, join with lawful reservations, or not become party.Footnote 142
The 1970s provided the first opportunity for many emerging nations to shape new treaties governing armed conflict, including in the area of weapons control. We have already seen how the Additional Protocols bear the imprint of the Asia-Pacific region. Another example is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention, CWC), which was negotiated through several decades in the Conference on Disarmament.Footnote 143 Chemical weapons are of course not a new challenge, but this treaty was a radical revision of outdated treaties. During its war against China in the 1930s and 1940s, Japan employed chemical weapons against enemy combatants and civilians, including riot control agents, phosgene, hydrogen cyanide, lewisite and mustard agents.Footnote 144 It also launched biological attacks where plague-infested fleas were released on Chinese cities such as Ningbo; it released plague-infested rats into other urban areas, and deliberately spread diseases through “field tests” and by handing out contaminated food items.Footnote 145 There were also the notorious human experiments carried out by Unit 731 outside Harbin in Manchuria.Footnote 146 Despite Chinese efforts, these crimes were not prosecuted at Tokyo, and were later addressed by the USSR and China in domestic proceedings.Footnote 147 Ironically, when the negotiations for the Conference on Disarmament started, Japan was one of the four Asia-Pacific States participating, but not China. During the decades of the negotiations, chemical weapons were allegedly used in several Asia-Pacific armed conflicts.Footnote 148 Dunworth argues that Australia played an important role in the negotiations for the CWC. She cites Australia's 1988 Chemical Weapons Regional Initiative, which attempted to promote “broader regional support for the future Convention” and to assist the ASEAN and Pacific Island countries in their preparations for implementation, as well as its hosting of the 1989 Canberra Conference aimed at engaging with the chemical industry about the treaty, and in March 1992, its proposal of a compromise text that facilitated the adoption of the treaty text.Footnote 149
Today, evolving technologies are leading to emerging issues that provide fresh opportunities for Asia-Pacific States to shape the direction and content of the law, and IHL is relevant to some of these areas. Outer space is an example. The advances in both civilian and military-related space technology over the years since Sputnik was launched have been astounding. Investment into developing capabilities in outer space has become a priority across the Asia-Pacific region, particularly in China, India and Japan. Freeland and Gruttner observe that “the shift towards small satellite technology has drawn the interest of other Asia-Pacific nations such as South Korea, Pakistan, Singapore and Viet Nam”.Footnote 150 Running alongside these developments are fears that outer space will be used to facilitate armed conflict and may become a theatre of war. This obviously raises the issue of IHL's applicability in outer space.
It is well known that the law of outer space is thin, vague and subject to different interpretations, and that the laws of war are inherently, although not exclusively, territorial in their application. Can they be calibrated for space, in the way that they have been for naval warfare? In light of all the activity in space, it is astounding that there is not even an agreed notion of where space begins. Freeland and Gruttner argue that the definitional ambiguities urgently need to be clarified, ideally in the form of treaty norms: clear definitions are needed for concepts such as “space weapons”, “military uses” and “peaceful purposes”.Footnote 151 They also identify “a divergence of views as to the interplay between the relevant principles that might apply to an armed conflict in space, as between the international laws of space and the existing jus in bello principles”.Footnote 152 Given the increase in strategic and militarized use of outer space (this is not the same as the weaponization of outer space, although the linkage is obvious), “the lack of clarity gives rise to a heightened sense of uncertainty and (perceived) threats to security”.Footnote 153 Freeland and Gruttner argue that existing treaties are not sufficiently robust in laying down “absolutely specific rules or incentives to prevent an arms race in outer space, let alone a conflict involving (and perhaps “in”) space although the object and purpose of the space law regime is directed towards peaceful activities.”Footnote 154
Some Asia-Pacific States have been supporting a new treaty. China, Vietnam and Indonesia were among the six States that joined with Russia in submitting a working paper to the Conference on Disarmament in 2002 on Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects.Footnote 155 In 2008, this was developed by China and Russia into a draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects.Footnote 156 This emphasizes outer space as a weapons-free zone, defines terms such as “weapons in outer space” and proposes a mechanism to establish measures of verification of compliance with the Treaty. This, of course, sits rather interestingly alongside China's remarkable investment into developing military capabilities in space in recent decades. In 2007, China caused international concern when it was able to destroy one of its own satellites by using the SC-19 direct-ascent anti-satellite system.Footnote 157 It has a specialized structure within the PLA, the Strategic Support Force, which is responsible for the development and execution of the PLA's space capabilities and also its cyber- and electronic warfare capabilities.Footnote 158 By contrast, the remaining two of the 2002 trio, Indonesia and Vietnam, are newcomers to outer space. However, Indonesia has since 2013 had a National Space Law which makes a direct link between its space ambitions and the defence of the nation, and authorizes the Ministry of Defence to utilize all of the nation's space assets in the event of a national emergency or for the sake of national defence and security.Footnote 159 As for Vietnam, it supports the policy of “no first placement of weapons in outer space” in the absence of a legally binding international agreement aimed at eliminating the weaponization of outer space, the predictable arms race that will follow, and the transformation of outer space into a venue of armed confrontation.Footnote 160
Another area attracting attention from certain parts of the region is cyberspace, meaning an “environment composed of physical and non-physical components, characterized by the use of computer units and electromagnetic spectrum to store, modify and exchange data through a computer network”.Footnote 161 The invention and development of the Internet, relying on cyberspace, has opened a new vista for hostile and harmful activity in the private, public and mixed spheres. Hacking into computers for the purposes of spying may be done by individuals for private purposes, and it may be done by individuals on behalf of a State. Viruses and worms may be planted in computers, and when activated these may or may not result in physical damage. The WannaCry ransom attack in 2017 affected computers around the world and has been tied to North Korea,Footnote 162 and there was also the NotPetya malware attack, blamed on Russia.Footnote 163 “Cyber-war” is a term used to describe the computer-based attacks that have happened against national institutions in Estonia, Georgia and Ukraine, all alleged to have been conducted by Russia.Footnote 164 There is at present no global agreement that regulates cyberspace, although there are some regional-level agreements such as the Convention on Cybercrime, also known as the Budapest Convention on Cybercrime.Footnote 165 Not surprisingly, as is the case with outer space, the question of whether and how IHL can apply to cyberspace is controversial on multiple levels. The laws of war have traditionally been territorial, tied to land, water and air space, but have been extended to conflict on the high seas. Cyberspace, like outer space, is a new frontier.
China is regularly mentioned in discussions about international hacking, malware and cyber-attacks, and their global regulation. The Chinese academic Binxin Zhang identifies “a dividing line between the ‘East’ (arguing that IHL does not apply to cyberspace) and the ‘West’ (arguing that IHL applies to cyberspace)”, with China and Russia often taking the same position on the Eastern side of the line.Footnote 166 The Chinese position, explains Zhang, is more concerned “with the resort to self-defence by more powerful States against cyber-attacks, and not to specific IHL issues per se”, because recognizing the applicability of IHL “would be an acknowledgement of the possible existence of armed conflict in cyberspace”.Footnote 167 China actually provides an interesting example of an Asia-Pacific State deliberately shaping the legal trajectory with practice: the government has been issuing regulations, declarations and statements, and making domestic laws setting out a clear position that cyberspace should be used only for peaceful purposes. China's opinio juris is being demonstrated through public emphasis on the need to prevent a “cyber arms race”, expressions of reluctance to accept the applicability of IHL and other existing regimes in cyberspace, and advocating “that cyberspace should only be used for peaceful purposes, and that discussion about the use of force in cyberspace would give rise to the militarisation of cyberspace”.Footnote 168
Finally, we can see the imprint of the region in the evolving area of environmental protection in armed conflict. In July 2019, the International Law Commission (ILC) provisionally adopted on first reading twenty-eight legal principles aimed at enhancing protection before, during and after armed conflicts (that is, throughout the entire conflict cycle).Footnote 169 This is not going to be a binding document. Even so, the principles are a landmark in the journey towards enhanced protection of the environment and natural resources in armed conflict. Some of the principles have certainly been progressive and consequently contentious. The draft goes beyond environmental damage to include misuse of environmental resources, covers both IAC and NIAC, extends the Martens Clause to environmental protection, draws from IHL's concept of protected zones, and envisages designation of significant environmental and cultural areas as protected zones. It addresses the particular situations of indigenous people and mass displacement, illegal exploitation of natural resources in armed conflict, the restoration of the environment after armed conflicts and the responsibility of States. The draft does not directly address the responsibility of non-State armed groups, or corporate responsibility as such (“due diligence” and “liability” are the preferred terms, and the relevant principle simply makes a recommendation to States).
Over the six years that the project has been on the ILC's programme of work, several Asia-Pacific States have consistently played an active role: Singapore,Footnote 170 Palau,Footnote 171 the Federated States of Micronesia,Footnote 172 Vietnam,Footnote 173 Malaysia,Footnote 174 the Republic of KoreaFootnote 175 and New Zealand.Footnote 176 Some, such as MalaysiaFootnote 177 and the Republic of Korea,Footnote 178 contributed to the discussions and shared their national and international experience – for example, national legislation, military practice, and international commitments through treaties and other legally binding documents. A particularly meaningful contribution was made by the Federated States of Micronesia, when it provided a thirty-one-page document with its views on the importance of protecting the marine environment in armed conflict.Footnote 179 Micronesia also explained its position on a number of international rules and principles, for instance:
• that the “no-harm principle” applies in armed conflict “including during the build-up to actual military hostilities and after those hostilities end”;Footnote 180
• that “‘hazardous wastes’ produced by military activities of Parties (e g, military vessels with intact and flammable fuel caches that are decommissioned and subject to scrapping) are subject to the conditions and obligations of the [Basel] Convention, whether such wastes are produced before, during, or after armed hostilities”;Footnote 181 and
• that the obligations of the Stockholm Convention “persist for its Parties during all temporal phases of an armed conflict – i.e., during actual armed hostilities as well as in the build-up to and aftermath of those hostilities”.Footnote 182
Some of these States, such as Vietnam, Japan and the Federated States of Micronesia, have had experiences of severe environmental damage in armed conflict that gives their input particular resonance. Reflection on the selection of views expressed (see notes 170–179) confirms the plurality of perspectives from across the region. Some, such as Singapore, take a conservative approach, while others, like Vietnam, Malaysia and Micronesia, are willing to push the boundaries and develop the law that exists as well as to fill existing gaps with fresh rules. The engagement of the identified States has been sustained, indicating genuine commitment to shaping this matter, and we can expect that they will continue to try to influence the draft principles as they move to the General Assembly for debate, and will be active in the ILC's consultation process prior to the second reading.
What of the contradictory IHL practice?
The author has thus far argued and justified three assertions: (1) the norm of humanity in armed conflict, which underpins IHL, has deep roots in the region; (2) there has been meaningful participation by some States from the region in IHL law-making; and (3) several Asia-Pacific States are among those actively contributing to the development of new or emerging areas relevant to IHL, such as outer space, cyberspace and the protection of the environment in armed conflict. It is then obviously necessary to address the paradox of how this positivity can exist in conjunction with the region's many armed conflicts, and its problematic implementation of IHL. The list of barbarity is long and includes the horrors of World War II, decolonization-related atrocities such as the Indonesian war of independence, Pakistan's devastation of breakaway Bangladesh in 1971, the atrocities of the Khmer Rouge in Cambodia from 1975 to 1979, the crimes in occupied East Timor from 1975 to 1999, the perpetual ethnic conflicts and the persecution of the Rohingya in Burma/Myanmar, and the decades-long struggle in Northern Sri Lanka, culminating in the government's unrestrained military annihilation of the Tamil Tigers in 2009. Saul's work on terrorism adds another dimension in clearly showing how many regional States have been twisting the conceptualization of terrorism beyond recognition to allow draconian powers to be deployed against a much broader category of persons in armed conflict, while Lassée and Anketell show how one State, Sri Lanka, attempted to distort IHL in order to justify its conduct of hostilities against the Tamil Tigers and the Tamil civilian population.Footnote 183
How can we reconcile this depressing picture with what has been demonstrated in the preceding parts of the present article? One way of theorizing the inconsistency is to see a hierarchy of accepted fundamental norms in the region, and due to incomplete internalization of the humanitarian norm, the sovereignty norm – as understood by those in power – is able to trump in armed conflict. As long ago as 1949, the representative to the Geneva Conference of the newly independent Republic of the Union of Burma articulated the approach that would come to reflect the views of many other States in the region, and in his own country, up to the present:
I do not understand why foreign governments would like to come and protect our people. Internal matters cannot be ruled by international law or Conventions. We say that external interference in purely domestic insurgency will but aggravate the situation, and this aggravation may seriously endanger the security of the State established by the people. Each Government of an independent State can be reasonably expected to treat its own nationals with due humanity, and there is no reason to make special provisions for the treatment of persons who had taken part in risings against the national government as distinct from the treatment of other offenders against the laws of the State.Footnote 184
This captures the core aspect of the so-called “ASEAN way” that is now crystallized in the ASEAN Charter's Article 2(2).Footnote 185 The ten member States have pledged allegiance to the “fundamental importance” of “respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States”, “non-interference in the internal affairs of ASEAN Member States” and “respect for the right of every Member State to lead its national existence free from external interference”. Textually, the ASEAN Charter bears resemblance to the UN Charter (Preamble and Article 1)Footnote 186 and the Friendly Relations Declaration,Footnote 187 but the practice of ASEAN States and their regional organizations has always been to prioritize Westphalian notions of statehood above all else.
Sovereignty concerns are manifested in the tardy Southeast Asian ratification of the two Additional Protocols that has already been discussed. There continues to be a definite chill in respect of aspects that potentially encroach on independence, sovereignty or territorial integrity, or that smack to these States of Western neo-colonialism. These aspects are, of course, subjectively evaluated by each State.Footnote 188 In practical terms, this frostiness can be seen in responses to certain issues in other branches of international law that have an impact on IHL:
• external threats of accountability against political leaders, in particular the immunities of heads of State;Footnote 189
• the exercise of extra-territorial jurisdiction;Footnote 190
• Security Council referrals to the International Criminal CourtFootnote 191 and the Court's exercise over non-States Parties;Footnote 192
• Pillar Three of the “Responsibility to Protect” doctrine;Footnote 193 and
• certain formulations of international crimes (for example, war crimes in NIAC).Footnote 194
The particular understanding of sovereignty that results from these patterns has been dubbed Eastphalian by scholars since Sung Won Kim first coined the phrase in 2009.Footnote 195 It is not as simple as the geopolitical ambitions of powerful States such as India and China or claims to be seeking to make international law more international. It is about encouraging Asian countries to look to themselves for solutions that cannot be found in the present framework, using the different approaches from the region, such as Confucian communitarianism. Eastphalia is not about dismantling the existing order, based as it is on established concepts, rules, principles and structures underpinned by international law. The emphasis on maintaining the State as a leviathan is, of course, not the only possible reason for the apparent disconnect with the implementation of humanitarianism in armed conflict. There are different reasons why norms that seem to be internalized are obeyed, violated or adapted, and they do not necessarily involve rejection of the norm itself. However, understanding what is going on is extremely important work that must be encouraged and tested in the contradictory landscape of the Asia-Pacific. For example, tapping into Axelrod's seminal games theorizing in relation to an evolutionary approach to norms, Villatorro and his co-authors have confirmed fluidity in the way that States relate to norms, and that this can be a process of ongoing change, even of mutation. The notions of process and movement are important, and this seems to match what we see in the Asia-Pacific region. Academics have argued that “norm internalization is not an all-or-none phenomenon, but a multi-step process which consists of degrees and levels characterized by different mental ingredients”; it is a “flexible phenomenon, allowing norms to be de-internalized, automatic compliance blocked, and deliberation restored in certain circumstances”.Footnote 196 Importantly, Villatorro and his co-authors point out that even internalized norms “are not inexorably bound to remain as such” and that they can evolve over time, including under extreme conditions.Footnote 197 If this understanding of norm dynamics is indeed correct when applied to the IHL hotspots of the Asia-Pacific, it offers an important new approach to strengthening norm internalization and compliance, and for designing interventions that are more effective.
The norm internalization avenue should be considered along with other attempts to rationalize and understand some of the egregious behaviour that has arisen in a number of Asia-Pacific IHL situations. For example, the present author recently analyzed wartime military sexual enslavement in the region, focusing on three of the most ignominious manifestations of the phenomena: the so-called “comfort women” of World War II, the abuse of Bangladeshi girls and women during the break-up of Pakistan in 1971, and the criminal and inhumane treatment of sexually enslaved women and girls in occupied East Timor.Footnote 198 That study identifies commonalities between these geographically and temporally diverse phenomena, and these commonalities allow for a broader understanding that is important for control of behaviour and prevention of abuses. Notably, the three phenomena all share aspects of the root causes identified in modern scholarship, such as all illustrating symbolic or representative sexual violence that is meant to humiliate the wartime opponent through the victim, and sexual violence as a concrete strategy of war, to reward fighters and boost morale. Three other features are clearly identifiable from this study: problematic institutional handling of sex and aggression in the armed forces; linkage to historical precedents and institutional cultures that socialize their members and influence their behaviour; and differing conceptions of what good leadership entails. In Burma/Myanmar,Footnote 199 Indonesia,Footnote 200 Sri Lanka,Footnote 201 the Korean PeninsulaFootnote 202 and the Southern Philippines,Footnote 203 there are more than enough cases for a generation of multidisciplinary researchers to carry out work that facilitates our understanding of root causes and of why there has not been a complete internalization of the norm of humanity in armed conflict, and that helps us to develop insights and approaches which can really make a difference to limiting the man-made harms that occur in armed conflict.
Concluding reflections
The region clearly has a roughly textured and multifaceted relationship with IHL, and its underlying norm of humanity in armed conflict. We have seen that there is no single Asia-Pacific perspective on IHL and that there are contradictions in approach and practice. However, we have also seen that this does not mean that the region does not have a significant and varied contribution to make. On the contrary, the broad acceptance, at an intellectual and cultural level, of the norm of humanity in armed conflict has facilitated a meaningful contribution to IHL law-making, and engagement in new areas of actual and potential application. In addition to the contributions pointed out in this paper, McCormack argues that the region can offer
significant experience and expertise … in relation to effective national implementation of IHL; engagement with non-state armed groups … to increase awareness of and respect for IHL; and drawing on the experience, history, culture and values of other, non-Western societies to broaden IHL and help dilute some of the Western Judeo-Christian stigma associated with it.Footnote 204
The present contribution suggests that the non-linear process of norm internalization may be one reason for the contradiction between conceptual or rhetorical acceptance and actual practice on the ground in many Asia-Pacific armed conflicts. This may explain how it is that sovereignty, another norm of great importance, is able to trump the norm that requires humanity in armed conflict. This enigma is not necessarily a “problem” but could be seen as simply a feature of social and political existence. The region actually presents diverse and complex situations that do require more “thinking outside of the box” and non-linear approaches. Linked to this is the reality that the wealth of regional practice in armed conflict should not be dismissed for being an IHL disaster zone. The dense practice with high levels of atrocity undeniably presents a schizophrenic picture, but it also provides case studies for deeper reflection on and understanding of human behaviour in armed conflict. This study discussed one example, military sexual enslavement, spanning three paradigmatic case studies spread out over some sixty years. From that, we have seen that there are more common than unique features. Broad and trans-disciplinary country-specific studies – for example, in the atrocity-rich conflicts of Burma/Myanmar, Sri Lanka and Indonesia – will surely yield exceptional insight, going well beyond the simplistic belief that dissemination and more enforcement are what is needed. Such studies can also be brought together for comparative purposes, and to identify shared features that warrant a common approach in the effort to facilitate norm acceptance and atrocity prevention.
The humanitarian community around the world has just commemorated and reflected on the 70th anniversary of the Geneva Conventions. The work that is emerging from the region shows that the challenge of the Asia-Pacific is not really that the region needs to be disseminated to about IHL or “capacity-developed” on humanitarianism in armed conflict. The countries of the region are not unaware of IHL, and it is misguided to approach their conduct in armed conflict as if it were all about ignorance. It may be hard for those who hold to a vision of the “civilizing” role of laws adopted in Geneva and The Hague to accept, but this part of the world has much to offer the world of IHL, such as humanitarianism from its countries’ cultures and religions, and the demonstrable expertise of a growing community of practitioners and academics. The real challenge for progressive humanitarianism is to traverse disciplines and build on recent important scholarship in order to develop more informed and nuanced approaches to understanding the countries and societies of the region, moving on to study the process of norm internalization, and then to develop creative and meaningful strategies for strengthening the links between that internalization, actual conduct on the ground, and norm socialization in the wider community.
