South Africa: SA Revokes Its Intent to Withdraw From the ICC

Photo: Mirjam van den Berg/RNW / The Presidency
Photo: Mirjam van den Berg/RNW / The Presidency
Top: International Criminal Court in the Hague. Bottom: President of Sudan Omar Al-Bashir, left, and South African President Jacob Zuma, right.

The South African government has revoked its intent to withdraw from the Rome Statute of the International Crimes Court (ICC), according to a document seen by News24 which was apparently issued by the United Nations.

A senior government official has confirmed that a letter to the United Nations dated March 7 was sent by the South African government citing the High Court in Pretoria judgment from February 22, in the case between the DA and the executive, as its reason for the reversal.

Spokesperson for the Ministry of Justice and Correctional Services Mthunzi Mhaga could not be reached for comment.

The court ruled that government’s decision to withdraw from ICC was unconstitutional and invalid.

Deputy Judge President Phineas Mojapelo ordered President Jacob Zuma and the ministers of justice and international relations to revoke the notice of withdrawal.

During the hearing in December, Mojapelo told senior counsel Advocate Jeremy Gauntlett, who represented Zuma and the ministers of justice and international relations, that the executive’s function was to seek public consultation.

He challenged Gauntlett’s argument that it was the executive’s prerogative to enter into, and withdraw from treaties that the country had signed and that Parliament only needed to give its approval.

 “It’s expected that the executive go back to Parliament. We have rights, we have obligations, and we have Parliament,” he said, adding that decisions executed by the executive must be “on the basis of the expressed authority of the Constitution”.

Executive seeking to ‘bypass’ Parliament

 Mojapelo said if the authority was not expressed in the Constitution, it must go to Parliament. Gauntlett asked the court to dismiss the DA’s case with costs.

In his rebuttal, Advocate Steven Budlender, for the DA, said the letter the executive had sent to Parliament contained no suggestion that the decision to withdraw from the ICC would be debated.

“It does not suggest that Parliament has to approve it. The effect is to bypass Parliament. It is simply telling Parliament for informational purposes,” Budlender told the court.

Budlender said it was irrational for the executive to unbind from the ICC because it had no alternative.

On October 21 Justice Minister Michael Masutha told reporters that South Africa had initiated the process of withdrawing from the ICC by notifying the United Nations of its intention to revoke its ratification of the Rome Statute, the ICC’s founding treaty. It would take a year for the decision to come into effect.

The decision followed several court judgments that the government violated the law by not arresting Sudanese President Omar al-Bashir during his visit to South Africa for an African Union summit in June last year.

The ICC had issued warrants for his arrest and wanted him to stand trial on charges of war crimes, crimes against humanity and genocide.

*Allafrica/News 24

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