South Africa: ICC withdrawal bid unconstitutional say judges

Pretoria's high court placed a constitutional roadblock on South Africa’s path to withdrawal from the International Criminal Court, ordering President Jacob Zuma to revoke the country’s October 2016 ICC withdrawal notice to the United Nations over a failure to obtain prior parliamentary approval. Judges ruled the move was "hasty, irrational and unconstitutional." South African and international civil society have welcomed the decision as a victory for the rule of law, but warned that continuing domestic efforts to repeal ICC legislation must be strongly opposed.

Parliament must approve any ICC withdrawal

On 22 February 2017, the judges of the North Gauteng (Pretoria) high court unanimously ruled that the South African government jumped the gun by notifying the UN of its intention to withdraw from the ICC without first obtaining parliamentary approval, and ordered President Zuma to revoke the 2016 notification.

“The absence of a (specific) provision in the Constitution for the executive to terminate any international agreement is confirmation of the fact that such power does not exist until Parliament legislates for it,” said Judge Phineas Mojapelo in delivering the unanimous judgment. He also called the withdrawal "hasty, irrational and unconstitutional."

The judgment stems from an executive action by the South African government last October by which it notified the UN Secretary-General – the depositary of the Rome Statute, the ICC founding treaty – of its intention to withdraw from the ICC.

The Democratic Alliance (DA), a non-ruling political party, initiated the constitutional challenge late last year after the African National Congress’ (ANC’s) withdrawal move under President Zuma. The DA argued South African parliament was not consulted as the country’s constitution requires – and the high court now agrees.

The DA has welcomed the High Court judgment, as well as its identification of additional constitutional issues, and views the judgment as a sign that the “ANC government must rethink the wisdom of ICC withdrawal.”

“South Africa is currently out of step with other progressive and democratic African countries who have reaffirmed their commitment to the ICC,” the DA said in a statement, adding, “We should recommit our country to the human rights-based foreign policy spearheaded by the late President Nelson Mandela.”

A victory for rule of law says civil society

“This decision confirms that our courts, while recognising and respecting the separation of powers doctrine, are willing to take bold steps to ensure that the executive does not overstep its role”, said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).

"Unilateral executive action which is not in line with the constitution will not be tolerated. While we are mindful that it is the prerogative of the state to enter into international agreements, it is also important to realise the supremacy of the constitution," continued Ramjathan-Keogh. "The executive cannot simply exit an international agreement in our constitutional democracy because, as the court has rightly held, such a process requires prior parliamentary approval.”

"There are millions of African victims crying for justice and only the ICC can address their pleas," said Chair of the Coalition's Advisory Board and former South Africa Constitutional Court Justice Richard Goldstone. "The norms and principles that underlie the South African Constitution should provide the South African Government and Parliament with the incentive to continue, as in the past, to fully support the efforts of the ICC, to recognise the plight of victims and to seek reforms from within the structure of the Rome Statute."

"With its history of apartheid and injustice, South Africa under Nelson Mandela was an inspirational force behind the International Criminal Court. The high court judgment gives continued life to that legacy in the face of attempts by those in power to undermine it. The ruling is a powerful message to those leaders who either commit or turn a blind eye to the worst crimes of our times: that a strong rule of law will require them to account one way or another," said Clément Capo-Chichi, Africa Coordinator for the Coalition for the ICC.

“This is clearly a victory for the rule of law and a shining demonstration of the important role the judicial system has to play in ensuring the proper checks and balances are upheld”, said Alison Smith, No Peace Without Justice International Criminal Justice Director. “Today’s decision gives victims a reprieve and edges South Africa back to the community of nations that together have decided that might is not right; that impunity for crimes under international law is a threat and an affront to all of humanity, requiring a global justice response when national systems are unwilling or unable to investigate and prosecute; and that those who bear the greatest responsibility for atrocities need to account for their crimes irrespective of their official capacity or diplomatic status.”

“The Coalition greatly welcomes the decision of the South African high court as another example of the extraordinary impact that the Rome Statute and the new system of international criminal law for war crimes, crimes against humanity and genocide continues to have in Africa and throughout the entire international legal order. The decision reflects the rule of law trumping the rule by law. President Zuma’s efforts to repeal the SA ICC implementation act represents an existential challenge to one of the such laws in the world and to the legacy of Nelson Mandela,” said William Pace, convenor of the Coalition. “Instead of unilateral withdrawals by powerful presidents acting undemocratically, the Coalition hopes that the 70 governments that have not ratified the ICC treaty will join the 124 near two-thirds majority that have.” 

Withdrawal stalled, but questions abound

The judgment has raised a number of questions for South Africa, the ICC and the international law community at large.

According to the Rome Statute, withdrawal from the ICC would not take effect until one year after the date of the original withdrawal notice. The original withdrawal effect date of 19 October 2017 may now have been thrown into the air with the high court judgment.

It remains to be seen whether a government appeal would forestall the judge's order to revoke the ICC withdrawal notice to the UN. 

The South African government may nevertheless re-submit an ICC withdrawal notification to the UN if parliament gives the go ahead, including by repealing national ICC legislation which many argue should have preceded the initial withdrawal notification.

South Africa has an ongoing parallel parliamentary process to adopt a law, the ICC Repeal Bill, to repeal the country's Rome Statute implementing legislation.

If parliament postpones consideration of the ICC Repeal Bill until appeals of the high court decision have been exhausted, any ICC withdrawal may be pushed even further down the line.

Will the judgment impact the ICC repeal bill process?

The Portfolio Committee on Justice and Correctional Services of the South African Parliament, currently tasked with making recommendations to parliament on the Implementation of the Rome Statute of the ICC Repeal Bill, will continue seeking comments from the public and civil society until 8 March 2016.

While the judgment today has no definite impact on the ICC repeal bill process, the timelines may be affected by the South African government appeal of the high court decision, and should raise important questions for parliamentarians considering the bill. 

"The ICC Repeal Bill before parliament represents a significant regression in the fight against impunity for international crimes in South Africa and the African continent. The South African ICC implementing law has been a beacon of hope and justice for victims of international crimes, such as torture. South African courts have previously held that the basis of investigation and prosecution of torture allegations by Zimbabwean officials against Zimbabwe citizens now living in South Africa, is the ICC Implementation law. Without this law, the impunity gap for international crimes is unfortunately widened," said Allan Ngari Senior Researcher at the Institute for Security Studies (ISS).

"The South African Government and Parliament should use the High Court judgment as an opportunity to reconsider the over-hasty and unconstitutional action by the Executive in giving notice to withdraw from the Rome Statute," said Justice Goldstone, adding "Whilst an African court with jurisdiction over international crimes would be a welcome development, that prospect is only on the horizon and requires both the political will and the financial support of African States that are at present almost entirely absent."

“We hope today’s decision gives time for cooler heads in South Africa’s Government to prevail and decide not to present a withdrawal Bill to Parliament”, Smith added. “If that happens, however, we hope that South Africa’s Parliament will stand on the side of victims and the protection of human rights on which today’s South Africa was built. In the meanwhile, we urge all States Parties to continue to reiterate in no uncertain terms their commitment to the integrity and the principles underpinning the Rome ICC Statute and their absolute commitment to ensuring justice and redress for victims of the world’s worst crimes, wherever they may take place."

"Prior to Wednesday, South Africa’s withdrawal from the ICC looked to be a fait accompli. This is no longer the case. The High Court judgment has ensured that there are clear opportunities for both ICC officials and the Court’s international supporters to encourage South Africa to stick around. For the sake of the future of the ICC, these opportunities must be taken," added ISS Consultant Simon Allison.

"The decision of the high court should make South African parliamentarians considering the adoption of the ICC Repeal Bill think twice," added Capo-chichi. "Withdrawing from the ICC also means removing all domestic protections against the commission of war crimes, crimes against humanity and genocide. How can that be a good idea?"

Failure to arrest Sudanese president at heart of crisis

South Africa’s notification to the UN last year is linked to its failure to arrest and surrender ICC suspect and Sudanese President Omar al-Bashir in June 2015 when he attended the African Union (AU) Summit in the country, despite treaty obligations and ICC requests. The ANC government has repeatedly claimed head-of-state immunity under customary international law is in conflict with its Rome Statute obligations, and that it had not been properly consulted on this matter.

The issue of South Africa's compliance, as well as its complaints, will be taken up by ICC judges on 7 April 2017 in a public hearing. 

South Africa remains obliged to investigate and prosecute crimes against humanity, war crimes and genocide and to cooperate with the ICC. Any withdrawal would have no impact on its prior legal obligations as an ICC member state.

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