South African court says government’s ICC withdrawal is unconstitutional

South African High Court rules the government’s decision to withdraw from International Criminal Court is unconstitutional.

JOHANNESBURG, SOUTH AFRICA (FILE – JUNE 14, 2015) (REUTERS) – A decision by South Africa to withdraw from the International Criminal Court (ICC) is unconstitutional, the country’s High Court ruled on Wednesday (February 22).

“The notice of the withdrawal from the Rome Statute of the International Criminal Court signed by the first respondent, the Minister of International Relations and Cooperation on 19 October 2016 without prior parliamentary approval is unconstitutional and invalid,” High Court Judge Phineas Mojapelo said in a ruling made at a court session broadcast on national television.

“The cabinet decision to deliver the notice of withdrawal to the United Nations Secretary-General without prior parliamentary approval is unconstitutional and invalid,” Mojapelo added.

Mojapelo also ordered the government to withdraw the notice to quit the ICC.

“The Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the president of the Republic of South Africa are ordered to forthwith revoke the notice of withdrawal,” he said.

But South Africa’s Justice Minister Michael Masutha said, after the court ruling, that the government still plans to withdraw from ICC.

Masutha described October’s notification to the United Nations of its intent to withdraw from the Rome Statute, the 1998 treaty establishing the Hague-based court, as a policy decision. He said the government would decide how to proceed, including a possible appeal, after reading the full judgment.

The ICC, which launched in July 2002 and has 124 member states, is the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes.

The ICC has had to fight off allegations of pursuing a neo-colonial agenda in Africa, where most of its investigations have been based.

Three African states – South Africa, Gambia and Burundi – last year signaled their intention to quit the ICC. Gambia’s President Adama Barrow, elected in December, said earlier this month it will remain in the ICC.

South Africa said it was quitting the ICC because membership conflicted with diplomatic immunity laws.

Pretoria had in 2015 announced its intention to leave after the ICC criticized it for disregarding an order to arrest Sudanese President Omar Hassan al-Bashir, accused of genocide and war crimes, when he visited South Africa. Bashir has denied the accusations.

South Africa would be the first country to quit the ICC.