Re-Setting the Clock – South African Court Rules ICC Withdrawal Unconstitutional

(Photo: Mark Kersten)

(Photo: Mark Kersten)

For proponents of the rule of law, today’s ruling that the South African government’s withdrawal from the International Criminal Court (ICC) was unconstitutional is a major victory. Set aside opinions on membership in the ICC itself; the decision by the High Court in Pretoria defended something more fundamental: the country’s parliamentary democracy. Specifically, the High Court declared that the government cannot ignore the country’s democratically elected parliament when taking decisions of the magnitude of withdrawing from an international organization. Proponents of the ICC have also been quick to hail the ruling as a victory for the Court, for human rights, and for victims of international crimes. But to permanently keep South Africa in the ICC, much more needs to be done.

There should be no doubt: the High Court’s finding that the government’s withdrawal from the ICC is “unconstitutional and invalid” should provide a significant boost to efforts to keep South Africa in the ICC. But it should not be treated as a fait accompli or any sort of guarantee that the country will remain a member of the Court. The High Court’s decision is an important rebuke of the means used to withdraw South Africa from the ICC. But it should not be confused with a defence of South Africa’s membership in the ICC itself. The ruling alone won’t keep the country inside the Rome Statute system. The hard work of convincing the government to stay still needs to be done.

It is important to stress that neither the ruling African National Congress (ANC) government nor President Jacob Zuma have changed their position on withdrawing from the ICC. For them, the High Court’s order is likely being interpreted as an annoying impediment and not an opportunity to re-think their position regarding ICC membership. As the BBC’s Andrew Harding has observed:

The High Court’s decision marks a pause, rather than a full stop, for the South African government and its plan to withdraw from the International Criminal Court.

The government may choose to appeal the judgment, or it may simply do as the judges ordered and take the proposal to parliament where the governing African National Congress (ANC) continues to enjoy a comfortable majority.

In response to the ruling, Justice Minister Michael Masutha has clarified that the government will press ahead with its withdrawal from the ICC. Reacting to the High Court decision, he declared that “[t]he intention to withdraw still stands, as [withdrawing from the ICC] is a policy decision of the executive.” There is no doubt that the ANC government is peeved at any use of courts that obstructs their intention to join Burundi (and, to date, only Burundi) in withdrawing from the ICC. Last month, Masutha made controversial remarks criticizing the role of South African courts in limiting the powers of the government and insisted that he would not allow the judiciary to dictate the government’s position on the ICC. 

At the same time, South Africa’s parliament is debating a bill repealing the Rome Statute of the International Criminal Court Implementation Act and has invited all interested observers to submit their views on the subject (if you’re interested, the deadline is 8 March 2017). But, as suggested by Harding, any bill seeking approval from the ANC-dominated parliament on withdrawing South Africa from the ICC would surely pass. Today’s ruling simply means that any such consultation must happen before the government issues its executive order notifying the UN of its intention to withdraw from the ICC – a decision that would take effect one year after the notification was deposited. As things stand, that would occur in October of this year. If the South African government abides by the High Court’s ruling, revokes its initial notice of withdrawal from the UN, consults parliament, and then re-deposits a notification of withdrawal at the UN, the actual date of the country’s official withdrawal will just get bumped down the calendar.

Barring any successful appeal, the High Court’s ruling should thus be seen as buying time to address the concerns South Africa has regarding the ICC. The order will re-set the clock but does nothing, in and of itself, to address, let alone reverse, the government’s concerns regarding the ICC.

In previous posts on South Africa’s potential withdrawal from the ICC, I outlined some of those concerns. A mix of both reasonable and unreasonable issues has also been outlined in a recently published, albeit poorly named, African Union document. Most importantly, the Court must clarify its position on head of state immunity and, specifically, the relationship between Articles 27 and 98. The ICC’s rulings on subject remain contradictory and the status quo is simply untenable.

For some, the bought time accrued by the High Court’s ruling also holds out the hope for domestic political changes. This is now the third time that the embattled Zuma government has lost a high-profile domestic cases relating to the ICC, a remarkable fact in its own right. The highly-strained ANC is divided on the wisdom of withdrawing from the Court and many of its members surely don’t want to cede more ground to their political rivals, the Democratic Alliance, which put forward the legal challenge which resulted in today’s humiliating defeat for the government. Still, banking on an ANC collapse or on Zuma being replaced by a President who wants to keep South Africa in the ICC would be unwise. Any space and time accrued by today’s ruling must be used to address some of the legitimate concerns that South Africa, as well as other African states, have with the Court’s record and role.

Today’s ruling by the High Court is as a tremendous victory for South Africa’s courts, the rule of law, and the foundational principles of parliamentary democracy. It is also a small but important victory for proponents of the ICC. It has bought them time. Hopefully it is used to good effect. The clock is ticking.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, International Law, South Africa. Bookmark the permalink.

5 Responses to Re-Setting the Clock – South African Court Rules ICC Withdrawal Unconstitutional

  1. el roam says:

    Thanks for that post Mark . The point is , that there is no victory here , not at all !! Slight correction of the court , and that’s it !!

    Concerning the Main issue :

    The government, has recognized its legal duty, not to withdraw without parliament approval. Yet, it was stated simply, that, no harm, if it would get it, in retrospect (retroactively). The court simply prevailed , that, since it is unconstitutional, it simply can’t. But judges, didn’t express any idea or substantial opinion concerning the very withdrawal. Here some important quotes :

    Here , under the title : ” The issues ” ( p.15 ) :

    (a) whether prior parliamentary approval and the repeal of the Implementation Act were required before a notice of withdrawal was given (the s 231 argument);

    End of quotation :

    Yet , the Government , from its part claimed according to the court , that :

    ” The contention was that the application was brought prematurely and should be dismissed on the basis that it is not ripe for judicial intervention, because: there is imminent consideration of the matter by parliament; there are on-going diplomatic and curial engagement of the ICC; and the effective date of the notice of withdrawal is only in October 2017, and is capable of deferral; and the notice itself is susceptible to revocation before it takes effect. Accordingly, so was the argument, unlawfulness has not yet manifested in a form which cannot be corrected. It was also argued that the national executive, had, through the Minister of Justice, given assurance that the notice of withdrawal will be withdrawn or its date of effectiveness deferred, should parliament not approve the notice of withdrawal before the termination in terms of the notice takes effect in October 2017. It was also argued that any judicial intervention where a parliamentary process is underway, would infringe the doctrine of separation of powers.”

    End of quotation :

    After such events , like in the case of Trump and the executive order banning Muslims entry to the US , the public accuses the courts , especially the right groups , all , for breaching the so called ( mistakenly so called ) ” Separation of power ” . But typically , the verdicts are not understood and well analyzed , what clearly , finally , erodes the principle of rule of law , and legitimacy of the court . This is really disastrous !!


  2. Alexander Eichener says:

    I see concerns. I see no “legitimate concerns”.

  3. Pingback: Op-Ed: With global democracy in retreat, what are the implications for Africa? – MadePress™ Africa

  4. Pingback: It’s Not Too Late — A Proposal for South Africa to Stay in the ICC – Ben Lee

  5. Pingback: It’s Not Too Late — A Proposal for South Africa to Stay in the ICC – Jehtro Lewis – Blog

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