Asian Values v. The Paper Tiger: Dismantling the Threat to Asian Values Posed by the International Criminal Court

Abstract

In a decade of shifting norms and changing practices in international criminal law, the principle of complementarity has emerged as the primary, but as-yet incompletely defined, mechanism of the International Criminal Court (ICC) to coax states towards enforcing individual accountability for international crimes. By enabling the ICC to decide whether specific cases are admissible, and whether to investigate and prosecute individuals of a state potentially without that state’s consent, complementarity is also the largest stumbling block for Asian states’ participation in the ICC. In particular, member states of the Association of Southeast Asian Nations (ASEAN), where the ‘Asian values’ of non-interference in domestic affairs and deference to state sovereignty are the foundation of inter-state relations, take issue with the competence of the ICC. This article analyses the extent to which such Asian values are a legitimate basis for ASEAN resistance to the ICC treaty regime in the context of the design and emerging practice of the ICC concerning complementarity and referral mechanisms. It suggests that, both in substance and procedurally, the ICC regime may represent less of a threat than anticipated to these Asian values, and that notwithstanding non-ratification, continued engagement between the ICC and ASEAN non-states parties may gradually promote the internalization of norms consistent with the ICC’s aims.