CASAC welcomes the decision of the North Gauteng High Court yesterday that Government’s notice of withdrawal from the Rome Statute of the International Criminal Court (ICC) is unconstitutional and invalid, and ordering Government to forthwith revoke that invalid notice of withdrawal (Democratic Alliance v Minister of International Relations & Cooperation and Others). CASAC was an intervening party in this matter. It was admitted as a party as it has ‘a direct and substantial interest in the subject matter’ and it is in the interests of justice that it join the litigation.

The Minister of International Relations and Cooperation on behalf of Government had deposited a notice of South Africa’s intention to withdraw from the Rome Statute in October 2016, triggering the 12 month notice of withdrawal. It had done so without the authority of Parliament and without repealing the Implementation of the Rome Statute of the ICC Act of 2002. The Repeal Bill has recently, and belatedly, been tabled in Parliament.

The scathing judgment by a Full Bench of the Court marks another stunning defeat for Government, demonstrating that it does not take its constitutional obligations, the separation of powers and the rule of law seriously. Government’s response to the litigation was found wanting in all respects.

The Court ruled that

“it is Parliament which must approve an international agreement before it may bind South Africa. It follows that it must be Parliament which decides whether an international agreement ceases to bind the country before the executive may deliver a withdrawal of notice”,

and later said:

“If it is Parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement.”

The Court admonished the Minister of Justice for requesting Parliament to urgently consider the Bill to repeal the implementation of the Rome Statute before the expiry of the 12 month notice period, saying that “This in itself is impermissible, as it has the potential to undermine the process of Parliament.” It went further to state: “what is so pressing for the national executive about the withdrawal from the Rome Statute which cannot wait for our legislative processes (and possibly judicial pronouncements) to take their course?” The court found that this ‘unexplained haste’ was irrational.
The Court also entertained the notion that the repeal of the Act may itself be unconstitutional, stating: “That is not an unreasonable forecast, due to the importance of the matter to the country … given the issues it raises”. The Court did not however deal with these substantive grounds of the legal challenge.

It does now mean that the process of public consultation and participation which Parliament is obliged to undertake in dealing with the Repeal Bill opens up the opportunity for these substantive issues to be tabled and aired. CASAC had argued that the decision to withdraw from the Rome Statute is inconsistent with our obligations in terms of s. 7(2) of the Constitution which provides that “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”, that the obligations on South Africa under the Rome Statute exist anyway in terms of our Constitution read in conjunction with customary international law, and finally that the withdrawal from the ICC serves no legitimate government purpose. These grounds will be foreshadowed in our submissions to Parliament on the Repeal Bill which we will make shortly.

CASAC encourages all South Africans and members of Parliament to engage robustly with the Repeal Bill and ensure that our commitments to fundamental human rights and in particular to act against genocide, war crimes, and crimes against humanity, including apartheid, are respected and indeed prioritised. These are the values that underpin our Constitution – we undermine them at our peril.