The government still fully intends on withdrawing from the ICC, but will now seek the approval of Parliament before proceeding.
The high court took the view that a notice of withdrawal requires parliamentary approval before cabinet may implement its decision to withdraw from an international agreement.
Had the government decided to appeal the court’s decision it would have ended up a lengthy process, which fed into the decision to rather withdraw the bill from Parliament, and start again.
Parliament’s justice and correctional services committee had already been seeking comments from the public on the issue of ICC withdrawal, the deadline for submissions having been March 8. It is now likely that public hearings will still be held to get further public input on the question.
But the cabinet is intent on pursuing the matter of ICC withdrawal as it believes it is implementing a key decision of the ANC’s 2015 National General Council (NGC).
In his closing remarks to the NGC in 2015, President Jacob Zuma said the ANC disagreed with the double-standards and selective actions of the ICC. He said the NGC had recommended that government reviews South Africa’s membership of the ICC. There are dissenting views on this matter within the cabinet itself, but the decision has been made to pursue withdrawal over the long term. This position has surprised many as there has been a change of heart among most African states that had initially joined the chorus that the member states of the AU should withdraw from the ICC.
While the AU Summit in January called for a mass withdrawal of member states from the ICC, the resolution was non-binding. Currently only the governments of South Africa and Burundi have decided they would like to withdraw from the ICC. Even Gambia has changed its position on ICC withdrawal after a democratic government was restored in that country.
There is currently no alternative functioning African court to try the perpetrators of human rights abuses. The African Court of Justice and Human Rights has yet to be established, and the Malabo Protocol, which would give the court the jurisdiction to try crimes under international law and transnational crimes, has still not been signed by more than seven African states. Such crimes would include genocide, crimes against humanity, unconstitutional changes of government, terrorism and human trafficking.
For the court to be operational, 15 countries need to sign and ratify the protocol. The reason why some have not yet signed is due to the fact that a number of provisions of the protocol need improvement. For example, there needs to be greater clarity on crimes – the way the protocol identifies terrorism is too vague. There should also be no immunity from perpetrating mass atrocities. The other key challenge facing the court’s future ability to operate is the outstanding question of how the court will be funded.
Independent Foreign Service