The South African government’s decision to withdraw from the International Criminal Court (ICC) in The Hague has been stalled when the High Court in Pretoria ruled on February 22 that the move was invalid because parliamentary approval was not sought.

The North Gauteng High Court ordered the government to rescind the notice of withdrawal that it had sent to the UN Secretary General late last year. This means that if the government is still planning to withdraw South Africa from the ICC, it will have to go through the process all over again.

The Democratic Alliance (DA) political party had brought the case to court in conjunction with the Southern Africa Litigation Centre (SALC), which had legally challenged the South African government in June 2015 for failing to arrest President Omar al-Bashir of Sudan while he was visiting South Africa.

The ICC has issued warrants of arrest for the Sudanese leader to answer charges of genocide and war crimes allegedly committed in Sudan’s Darfur region. According to the Rome Statute of the ICC, member states are obliged to arrest anyone for whom a warrant of arrest has been issued.

This was why the SALC decided to pursue the arrest of President al-Bashir through the courts while he was in South Africa, although he left before the case could be heard. The court eventually accused the government of “disgraceful conduct” for failing to apprehend President al-Bashir.

In the ICC withdrawal case, the SALC argued that the South Africa constitution, among other things, “imposes an obligation on government to obtain prior parliamentary approval before withdrawing from any international agreement”.

The SALC also challenged the government’s decision to withdraw from the ICC “without establishing a legal framework to deal with pending or ongoing cases and investigations”.

It added that the withdrawal move was “irrational” and had “been taken in bad faith”.

After the court ruling, SALC Executive Director Kaajal Ramjathan-Keogh said: “We are delighted that the court has recognised and corrected this failing on the part of government.

“Unilateral executive action which is not in line with the constitution will not be tolerated. “While we are mindful that it is the prerogative of the state to enter into international agreements, it is also important to realise the supremacy of the constitution.  The executive cannot simply exit an international agreement in our constitutional democracy because, as the court has rightly held, such a process requires prior parliamentary approval.

“This is a sound judgment and it would be unfortunate if [the] government decides to appeal. This decision confirms that our courts, while recognising and respecting the separation of powers doctrine, are willing to take bold steps to ensure that the executive does not overstep its role”, Ramjathan-Keogh added.

The South African parliament has already called for written submissions on the ICC Repeal Bill. South Africa, Burundi and The Gambia served notices of withdrawal from the ICC to the UN last year. However, with the recent political change in The Gambia, the new government has revoked the previous government’s withdrawal notice.

The SALC’s mandate is to ensure that all persons charged with or suspected of committing international crimes of genocide, crimes against humanity and war crimes, among others, face accountability and are arrested and tried before competent tribunals.

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