The decision to withdraw from the International Criminal Court

2 December 2016

The Application Background

The government of South Africa initiated the process of withdrawal from the International Criminal Court (‘the ICC’) on 19th October 2016. In response, the Democratic Alliance brought an application to the Constitutional Court in which the HSF was cited as 10threspondent. At the same time, the DA launched an application in the Pretoria High Court, which hearing would be dependent upon whether the Constitutional Court heard the application. The applications requested the Court to declare the decision to withdraw as well as the notice of withdrawal unconstitutional and invalid. The applications further requested the Court to direct the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the President (the first to third respondents) to revoke the notice of withdrawal and to take all other reasonable steps to terminate the process of withdrawal.

The Constitutional Court has dismissed the application for direct access, as it found it is not in the interests of justice to hear the matter at this stage. Put differently, the Court found it should not be the court of first instance and the matter should proceed before other courts and judges first. Consequently, the matter will be heard in the Pretoria High Court on the fifth and sixth of December 2016. 

Arguments in Support of the Application

The Helen Suzman Foundation has filed papers in support of the DA’s application and the relief sought. The decision to withdraw is both procedurally and substantively flawed.  The arguments are set out in summary below.

Procedurally Flawed

The decision breaches the separation of powers doctrine and is procedurally unlawful. Effectively, section 231 of the Constitution requires Parliament to approve the withdrawal and repeal the Implementation of the Rome Statute of the International Criminal Court Act[1] (the legislation implementing South Africa’s international obligations in relation to the ICC domestically) prior to the National Executive sending notice of withdrawal to the Secretary General of the United Nations.  Repealing legislation is an exclusive function of Parliament and the National Executive has appropriated Parliament’s constitutional authority.  Further, the National Executive made the decision of this magnitude without even the most elementary forms of public participation. Obtaining Parliament’s approval after the fact will not cure the initial unlawfulness of the steps taken.

Substantively Irrational and Unlawful

The reasons offered for withdrawal are both irrational and unlawful. The reasons are contradictory and based on errors of law. Absolute immunity, as sought by the National Executive, is inconsistent with the Constitution. Due to customary international law, international crimes are crimes in South Africa and therefore even without the Implementation Act or without membership of the ICC the State will still be under an obligation to investigate and prosecute perpetrators of international crimes. Further, South Africa is party to a number of other conventions[2] which create obligations to prosecute and punish offenders for crimes such as genocide. Therefore, the State will remain under such independent obligations to investigate and prosecute offenders of international crimes, irrespective of any repeal of the Implementation Act and withdrawal from the ICC.

The State cannot claim it is committed to the fight against impunity and yet a reason for the withdrawal is to provide immunity for those very persons responsible for international crimes.

There is no need for the South African government to broker peace deals in South Africa. Instead, facilitating such talks can take place at a neutral venue outside of South Africa, as has been done on more than one occasion in the past.

The alleged bias of the ICC cannot be sustained on the facts and such argument is fatally flawed. Only three of ten investigations were initiated by the Prosecutor, one is not an African state, and two of the ten were referrals by the UN Security Council with such resolution being supported by African States (including South Africa in the case of Libya).  The other five investigations were referrals by the African State itself. Further, bias cannot be assumed merely because the Court, the Security Council and the Assembly of States refused South Africa’s request to extend diplomatic immunity to heads of state.

The alleged bias relating to the Security Council similarly cannot be sustained on the facts. In reality, it has nothing to do with South Africa’s membership of the ICC, but rather that the Security Council exercises its powers in terms of Chapter VII of the Charter of the United Nations. Therefore, withdrawal from the Rome Statute will not change the perceived ‘unfair’ powers of the Security Council. Even without the ICC, ad hoc international tribunals may be established and South Africa may be required to cooperate with such tribunals.

The withdrawal is retrogressive as it takes away certain rights which are not replaced with rights of equal or greater effect. South Africa’s membership of the ICC strengthens the rights of dignity, equality, and freedom and security of the person. The State is in breach of section 7(2) of the Constitution which requires the State to respect, protect, promote and fulfil the rights in the Bill of Rights.

Finally the African Court is not a viable alternative. As it currently stands, the Court has no criminal jurisdiction. The protocol creating such criminal jurisdiction has not received the requisite ratifications - in fact it has received no ratifications in the two years since its adoption. Further, South Africa has expressed no intention to be bound by it, because it has not signed the Protocol establishing the Court. Even if the Court ever comes into existence, which is highly unlikely, no justification has been given why South Africa has to choose either the African Court or the ICC. Lastly, the proposed immunity provision in its statute is so broad as to make the Court incapable of prosecuting any sitting head of state or senior government official and therefore renders the court ineffective.

Accordingly, the decision to withdraw is irrational and unlawful and as such it must be set aside, and steps must be taken to terminate the withdrawal process.

Chelsea Ramsden, Legal Researcher, Helen Suzman Foundation, 2 December 2016

[1] 27 of 2002.

[2] For example, the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.