The Non-Participation of ASEAN Countries in the International Criminal Court: A Constructivist Perspective

Abstract

The establishment of the International Criminal Court (ICC) was celebrated by many as international criminal justice is seen as entering into a new phase of development and anti-impunity norms being formally institutionalized. The ICC is tasked with prosecuting individuals who are accused of perpetrating genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC, which derives its powers and jurisdiction pursuant to the 1998 Rome Statute, is the only permanent and independent international criminal court in the international system. However, except for Cambodia, the Member States of the Association of Southeast Asian Nations (ASEAN) are reluctant to be a part of the ICC which indicate a contestation of the norms of the ICC by the ASEAN Member States. According to the social constructivist theory, shared ideas and norms impact states’ decision in a socially constructed lenses of the world. In particular, ASEAN’s norms are said to be the sovereignty of states and non-interference in domestic matters as reflected in the “ASEAN Way”. The purpose of this paper is to analyze the different level of participations in the ICC by the ASEAN Member States, in particular Cambodia, Malaysia, Philippines and Myanmar through contestation based on their identity.