South Africa’s High Court restores order: SA and ICC withdrawal

Published 2nd March 2017

On 22 February, the High Court handed down an important and definitive judgment reminding the executive that the Constitution of this nation cannot be ignored or bypassed. Finding that the executive’s notice of withdrawal from the International Criminal Court was unconstitutional and invalid, the High Court restored a sense of order. The Court took matters further and ordered that the notice of withdrawal be revoked. A humbling and painful admonition for the government.

Sudanese President Omar al Bashir’s arrival in South Africa in June 2015 exposed the government’s inability to adhere to domestic and international law and led to the situation South Africa finds itself in today with regard to the ICC.

Bashir is wanted by the ICC for crimes against humanity, genocide and war crimes. South Africa, as a signatory to the Rome Statute and having domestically endorsed the arrest warrant for Bashir, was legally obligated to arrest the Sudanese president. Citing all manner of political and unfortunate excuses, the South African government failed to arrest him and was taken to task by the Southern Africa Litigation Centre (SALC).

Both the High Court and the Supreme Court of Appeal found that South Africa’s failure to arrest the man allegedly responsible for the deaths of over 300 000 people was unlawful. The government of South Africa disregarded the rule of law and failed the victims of egregious crimes.

Following the Bashir saga, the ruling party issued calls for withdrawal from the ICC. Without the necessary consultation- the executive sent a notice of withdrawal to the United Nations Secretary General commencing the one-year count down till withdrawal would be deemed effective.

The government cannot unilaterally make such decisions, particularly without repealing the domestic legislation that makes the Rome Statute of the ICC, domestic law in South Africa- the Implementation of the Rome Statute of the ICC Act. As provided for by the Constitution, such a move requires that certain parliamentary procedures (which include public participation) be followed as these decisions have serious implications for the South African people. To give effect to the Constitution, and rein in the executive, legal action was required yet again.

The Democratic Alliance challenged the constitutionality of the notice of withdrawal and the High Court agreed that the notice was unconstitutional and invalid. Calling the executive’s actions “irrational” the judgment reinforced the importance of the separation of powers and may have temporarily halted the country’s gradual unraveling into a state of constitutional disarray.

Whilst the government can of course appeal the judgment, essentially the executive must go back to the drawing board. The Repeal Bill that seeks to repeal the ICC Act is already before parliament and is open for public comment. Should the state forgo an appeal, the executive will have to wait for the outcome of the parliamentary procedure before it can contemplate sending a new notice of withdrawal.

The implications of withdrawal are serious with nothing but negative consequences for the South African people, for justice and accountability. If the ICC Act is repealed, the seminal piece of legislation that governs the domestic prosecution of genocide, crimes against humanity and war crimes will no longer exist. This will significantly hamper domestic justice efforts and potentially make South Africa a safe haven where suspected perpetrators of heinous crimes are welcomed with a red carpet and a VIP escort.

Regionally, there is currently no African Court with criminal jurisdiction and thus justice for crimes that shock the conscience of humanity does not exist at that level.

Internationally, should South Africa successfully leave the ICC, there will be no international justice for South Africans either.

The ICC is far from perfect and there are several challenges that need to be addressed. South Africa should seize the opportunity to lead constructive engagement efforts instead of abandoning the only permanent international accountability mechanism. Given its history, post 1994 commitment to human rights and justice, who better to lead efforts to improve the international justice system from within?

Today, apartheid is a crime under the Rome Statute and one cannot help but wonder how things could have been different if an international criminal court existed during those dark days. Courts not only deliver justice but they can also serve as strong deterrent mechanisms to potential perpetrators.

Burundi, South Africa and the Gambia all announced their intention to leave the ICC in 2016. Gambia, under new leadership has opted to stay within the ICC and perhaps South Africa has a chance to do the same. This judgment may have created a crucial opportunity for reflection.

Whilst the parliamentary process seems to be running its course, last week’s judgment may positively influence the outcome and encourage more public participation in the fight for international justice and accountability.

**This article originally appeared in the Star newspaper on 2 March 2017 under the title Unprecedented victory for justice

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