IBAHRI welcomes High Court order against South Africa’s exit from the ICC

The International Bar Association’s Human Rights Institute (IBAHRI) welcomes the ruling by South Africa’s North Gauteng High Court ordering the Government to revoke its notice of withdrawal from the International Criminal Court (ICC).

On Wednesday 22 February, the High Court, based in Pretoria, struck down the Government’s notice of withdrawal as unconstitutional, finding it to be in breach of section 231 of South Africa’s Constitution which pertains to international agreements. The court ruled that the notice was invalid because the Government had not sought approval from Parliament before its issuance.

IBAHRI Co-Chair Ambassador (ret.) Hans Corell said: ‘It is heartening to see South Africa’s judiciary exercise its function as a check on the powers of the executive and in defence of the rule of law. It is now for the nation’s government to respect the High Court’s interpretation of the Constitution of the Republic of South Africa that the Government requires approval from the National Assembly for, not only the formation of international agreements, but also their dissolution. Bearing in mind South Africa’s signing of the revised protocol of the Southern Africa Development Community Tribunal, which takes away individual access and the human rights jurisdiction of this regional court, and unsettling signs from nations such as Burundi and Namibia stating they too wish to withdraw from the ICC, the High Court’s decision is all the more significant in protecting the work of this important institution.’

The Government of South Africa notified the UN of its intention to withdraw from the ICC in October 2016 following a disagreement with the Court in 2015. The dispute was caused when the Government was ordered by South Africa’s High Court to arrest President Omar al-Bashir of Sudan, for whom the ICC had issued an arrest warrant for alleged war crimes. The government permitted President Al Bashir to leave the country despite a High Court ruling prohibiting him from leaving the country pending a final decision on his arrest warrant. As a signatory to the Rome Statute South Africa had an obligation to comply with the ICC’s ruling as well as a national obligation to respect rulings handed down by an independent court, as is the High Court.

The Southern Africa Litigation Centre (SALC) was party to the proceedings which brough about the High Court's decision and sought 'to ensure that the civil society perspective is before the Court and has been acknowledged as a "Supporting Respondent"'. SALC also sought the implementation of the ICC's arrest warrant against President Al-Bashir when he visited South Africa in 2015.

ENDS

Notes to the Editor

1. The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.
   
   The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme (ICC & ICL) is managed from an office in The Hague, the Netherlands.
   
   The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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