Since its establishment in 1967, the Association of Southeast Asian Nations has been instrumental in advancing peace between its members. However, there are sporadic internal conflicts and at times international armed conflicts, in the region that necessitate rules concerning the conduct of warfare, especially to protect innocent bystanders. This was previously the domain of the "laws of war." It has now been recalibrated under the title, "International Humanitarian Law," as the basic law governing armed conflicts.
The roots of humane principles and practices, even in times of war, can be traced back thousands of years and are interlinked in Indian, Chinese, Mongolian, Islamic, Buddhist and indigenous histories. For example, Emperor Asoka from South Asia, who brought Buddhism into Southeast Asia, issued a series of edicts renouncing war and advocating protection for prisoners, women and children.
It was during the 19th century that those principles were solidified into international norms under various treaties. The Hague Conventions were formulated, laying the groundwork for the protection of fallen soldiers, prisoners of war and civilians. These were expanded by other treaties in the early 20th century. The two world wars that ensued also raised the issue of the responsibility of States and individuals for international crimes, such as crimes against peace, war crimes and crimes against humanity.
In 1949, the four Geneva Conventions emerged, encompassing protection for sick and wounded soldiers on land and at sea, prisoners of war and civilians in occupied territory. All ASEAN member states are parties to these treaties. The conventions were expanded later by three protocols to cover wars of national liberation, non-international armed conflicts and other concerns. There would be broader protection of humanitarian personnel and civilians more generally in times of international and other armed conflicts.
Inherently, key principles were strengthened in the process. Of primordial concern is the need to shun attacks on civilians and civilian objects; this is anchored on the principle of "distinction," which prohibits indiscriminate attacks on civilian targets, though permitting attacks on military targets. Heinous weapons causing inordinate suffering, such as blinding laser weapons, are prohibited. In the meantime, warfare still needs to abide by various rules based on a sense of humanity. These include the "necessity" principle, which prohibits actions that breach positive rules such as the principle of distinction, but enables military action to be weighed and enabled based on permissible military advantages.
There is relativity in the relationship between the military and its actions, premised on a sense of "proportionality"; military actions should not be disproportionate or excessive in proportion to the ensuing harm. The principle of "precaution" adds the need for various due diligence measures, such as a geographic or situational checkup before launching an attack, potentially with warnings.
How is ASEAN, now with 11 member states, mandated to deal with the issue? The nexus with IHL is visible from three angles: normative, institutional and operational.
The normative angle is evident in the reference to IHL explicitly in the ASEAN Charter. IHL is also referred to in the terms of reference of the ASEAN Intergovernmental Commission on Human Rights, the main ASEAN human rights mechanism. In addition, there is an agreement on disaster situations, which targets natural disasters, but there might be an admixture with man-made disasters, alias armed conflicts. This is the ASEAN Agreement on Disaster Management and Emergency Response, a 2005 treaty to strengthen disaster management, risk reduction and emergency response in the region.
At the institutional level, there are at least three mechanisms that can interplay with IHL: the AICHR, the ASEAN Coordinating Center for Humanitarian Assistance on Disaster Management, and the ASEAN Institute for Peace and Reconciliation.
Operations-wise, there are various examples of activities that bear upon humanitarian matters that might encompass armed conflicts. AICHR consultations have connected with elements of IHL. Touching upon IHL tenets, AICHR’s new work plan for 2026-2030 includes: regional initiatives to establish human rights-based approaches and strategies in addressing conflicts and violence in ASEAN; development of a common platform to respond to, deliberate and agree on common positions and strategies in addressing different types of human rights issues, conflicts, disasters and emergencies; and AICHR Consultation on Mainstreaming Human Rights in Humanitarian Actions.
Operationally, AHA has been a channel for humanitarian aid to Myanmar. This ranges from aid linked to instability in the country to aid for natural disasters, especially in the wake of the recent devastating earthquake. There are in-country liaison teams and cooperation with the ASEAN Emergency Response and Assessment Team for logistics and civil/military work. As for ASEAN IPR, its 2026 work plan will set up activities on training for peacebuilding in the region.
More recently, the path ahead for the organization was predicated by the adoption of the ASEAN Vision 2045. The ASEAN region adheres to multilateralism, reiterating that it is a zone of peace, freedom and neutrality, as well as a nuclear-weapons-free zone. It promotes peace, security and stability in the region, as well as peaceful resolution of disputes, while being conscious of new risks such as climate change and environmental degradation.
Windows of opportunity can be identified where ASEAN's role as a regional organization can help catalyze action at the national level, on the one hand, and action at the regional level, on the other hand. They include the following: integrating IHL into rules of engagement and practices in the meetings of defense ministers; respecting IHL in ASEAN operations, including observer teams and peacekeeping; and setting up national committees on IHL and perhaps an ASEAN committee thereon. Opening up space for the International Committee of the Red Cross as well as the International Red Cross and Red Crescent Movement at the ASEAN level and at the national level through IHL and humanitarian practices would be welcome; this would include visits to POWs and detainees in prisons.
Moreover, there is now a need to ensure IHL integration within interfaces through digitalization, cyber systems and artificial intelligence in armed conflicts. Importantly, measures to enable victims and survivors to be recognized and to access help, redress and remedies should be maximized, while supporting ratification and implementation by all ASEAN countries of IHL-related treaties. In sum, IHL is not an island; it is an archipelago, encompassing the directions above as connected leverages.
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Vitit Muntarbhorn
Vitit Muntarbhorn is a professor emeritus at the Faculty of Law, Chulalongkorn University and a former UN Special Rapporteur. The views expressed here are the writer’s own. — Ed.
(Asia News Network)
khnews@heraldcorp.com
