South African court rules ICC withdrawal unconstitutional

AP News
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Posted: Feb 22, 2017 11:33 AM
South African court rules ICC withdrawal unconstitutional

JOHANNESBURG (AP) — A South African court ruled Wednesday that the government's decision to withdraw from the International Criminal Court without parliament's approval was unconstitutional. The country had been set to become the first to leave the tribunal that prosecutes the world's worst atrocities.

A high court judge instructed the government to revoke its notice of withdrawal from the court based in The Hague, Netherlands.

South Africa's main opposition party had gone to court, saying the government's notice was illegal because parliament was not consulted. "South Africa does not want to be lumped together with pariah states who have no respect for human rights," the Democratic Alliance said in a statement Wednesday.

"What is so pressing for the national executive about the withdrawal ... which cannot wait for our legislative processes to take their course?" the court's ruling said. "Government respondents have not provided any explanation for this seemingly urgent need to withdraw from the Rome Statute" that created the tribunal.

A government statement said it would "reflect on the judgment" before deciding whether to appeal.

South Africa's withdrawal announcement last year followed a 2015 dispute over a visit by Sudanese President Omar al-Bashir, who is wanted by the ICC for alleged war crimes, crimes against humanity and genocide in Darfur. Al-Bashir was allowed to leave South Africa even though a local court ordered authorities to arrest him.

Under the Rome Statute, signatory countries have a legal obligation to arrest anyone sought by the ICC. South Africa said the treaty contradicts its diplomatic immunity law and prevents the country from acting as a regional peacemaker, a role that could require it to host adversaries on its own soil.

The government previously said a withdrawal bill would go to parliament, where the ruling African National Congress party has a majority and likely would approve it. However, the court's ruling could mean a significant delay in the process, and some legal experts speculate that the government might consider dropping its withdrawal plan ahead of the next presidential elections in 2019.

South Africa notified the United Nations secretary-general that it would withdraw from the treaty that created the ICC, alarming international human rights groups and raising fears of an African exodus from the court, which has more than 120 member states.

Some African countries have argued that the court has unfairly targeted their continent and have instead advocated strengthening their own institutions to deal with threats to human rights. All but one of the court's full-scale investigations are in Africa, though the majority were referred to the court by the African countries themselves and two by the U.N. Security Council.

Former U.N. Secretary-General Ban Ki-moon had said he regretted South Africa's decision to withdraw from the ICC and expressed hope that the government would reconsider it. A country's withdrawal becomes effective a year after formally notifying the U.N. chief. In South Africa's case, that is expected in October. It was not immediately clear whether the court ruling has stopped the clock on that process.

Backers of the court were dismayed by South Africa's move to withdraw, especially after former President Nelson Mandela had been a strong advocate for the court's creation.

The Democratic Alliance statement echoed concerns that the country under current President Jacob Zuma had drifted far from its ideals. "This is a victory for the rule of law and indeed for our country's human rights-based foreign policy which Zuma and his cronies have tried so hard to depart from," it said of the court's ruling.

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Online: http://www.saflii.org/za/cases/ZAGPPHC/2017/53.pdf

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Follow Christopher Torchia on Twitter at www.twitter.com/torchiachris