In June 2015
South Africa issued a notice to formally revoke its withdrawal from the International Criminal Court on Tuesday. The decision comes after the Gauteng High Court ruled in February that the initial process to withdraw from the ICC was unconstitutional and invalid.
On Tuesday, the secretary general of the United Nations Antonio Guterres issued a statement saying that South Africa had revoked its withdrawal from the ICC as a result of the high court ruling. Guterres referred to the ruling, saying “the approval of the Parliament of South Africa had to be obtained before the Instrument of Withdrawal from the Rome Statute of the International Criminal Court can be deposited with the United Nations”.
The high court, however, heard that Parliament had not been consulted about the decision to withdraw from the ICC.
Last year, South Africa announced it would withdraw from the ICC after it was condemned by the international court for not arresting Sudanese President Omar Hassan al-Bashir during his visit to the country in 2015. Al-Bashir has been accused of war crimes and genocide, but has denied the allegations.
The ICC issued a warrant for al-Bashir’s arrest in March 2009, and then issued a second warrant in July 2010. The charges against al-Bashir include five counts of crimes against humanity, two counts of war crimes and three counts of genocide.
The Supreme Court of Appeal (SCA) found that South Africa had been inconsistent with its own law by not arresting al-Bashir. The state approached the SCA after the high court ruled it was obligated to arrest al-Bashir. But the then deputy minister of justice and constitutional development, John Jeffery, defended the decision to not arrest al-Bashir, saying it would “basically be declaring war” with Sudan.
“The ICC is not the court we signed up for. It has diverted from its mandate and allowed itself to be influenced by a powerful non-member…” Jeffery said.
South Africa formally began the process to withdraw from the ICC in October 2016, telling the UN that its obligations to peaceful conflict resolution were “incompatible” with the UN’s.
Justice Minister Michael Masutha will appear before Parliament’s international relations committee on Wednesday to address the high court ruling which found the withdrawal from the ICC to be unconstitutional.
Retired judges, meanwhile, have made a submission to Parliament’s justice and correctional services portfolio committee regarding the state’s decision to withdraw from the ICC.