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South Africa: ICC withdrawal bid unconstitutional say judges
South Africa: ICC withdrawal bid unconstitutional say judges
CICC News, 22 Feb 2017
On 22 February 2017, the judges of the North Gauteng (Pretoria) high court judges 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.
A victory for rule of law says civil society
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“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.”
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“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."