Pretoria - Government is expected to go-ahead with the withdrawal from the Rome Statute of the International Criminal Court (ICC) once it had followed the correct route by first obtaining Parliament’s approval and once all mechanisms are in place.
Justice Minister Michael Masutha on Wednesday told Independent Media that Wednesday’s judgment was just a temporary setback which would delay South-Africa’s withdrawal for a few months.
Speaking from Parliament while waiting for the start of Finance Minister Pravin Gordhan’s budget speech, Masutha pointed out that the Gauteng High Court, Pretoria’s judgment did not affect government’s policy decision to withdraw from the ICC.
“It only addressed the procedure we followed in withdrawing,” he said.
Masutha said he does not at this stage think that government will appeal the judgment, as it only addressed the procedure followed in withdrawing from the ICC. “On the face of it it does not seem necessary to challenge the judgment.”
A full bench (three judges) on Wednesday unanimously found that the notice of withdrawal from the Rome Statute of the ICC signed on October 19 last year, without prior parliamentary approval, is unconstitutional and invalid.
Government was ordered to forthwith revoke the notice.
Deputy Judge President Phineas Mojapelo said South Africa can only withdraw from the Rome Statute on approval of parliament and after the repeal of the Implementation Act.
The court refrained from expressing a view on the policy decision by the national executive to withdraw from the Rome Statute. “There is nothing patently unconstitutional, at least at this stage, about the national executive’s policy decision to withdraw from the Rome Statute, because it is within its powers and competence to make such a decision. What is unconstitutional and invalid, is the implementation of that decision without prior parliamentary approval,” Judge Mojapelo said.
Wednesday’s order came in the wake of an application by the Democratic Alliance (DA) in which it asked the court to declare the notice of withdrawal from the ICC unconstitutional and invalid.
Nici van’t Riet, who represented the Council for the Advancement of the South African Constitution (CASAC) during the hearing, in explaining the implications of the judgment, said South Africa will (for now) remain a party to the Rome Statute and will fall under the jurisdiction of the ICC.
“This means that South Africa has a continued obligation to the ICC to exercise its duties in terms of the Rome Statute, to cooperate with the ICC and to follow its procedures and mechanisms.”
“It also a duty to exercise its criminal jurisdiction over those responsible for international crimes. If Sudan president Omar al-Bashir, for example, had to return to South African soil, the government would be under an obligation to arrest and surrender him to the ICC.”
Van't Riet said government can, however, start the withdrawal process afresh should it so choose. “This would entail getting the approval of the legislature to withdraw as a state party.”
This process has already begun with the implementation of the Rome Statute of the ICC Act Repeal Bill having been tabled.