The North Gauteng High Court has ruled that the government’s decision to withdraw from the International Criminal Court without Parliament approval is invalid and unconstitutional.
In his ruling, Deputy Judge President Phineas Mojapelo ordered President Jacob Zuma and the ministers of justice and international relations to immediately revoke the notice of withdrawal from the ICC.
In November 2016, the Democratic Alliance (DA) filed an affidavit, challenging the government’s decision to withdraw from ICC without proper consultation.
The Maimane-led blue party argued in the affidavit that the notice of withdrawal from the international tribunal based in The Hague, Netherlands, was ill-considered and done in a rash manner without following due processes.
The government via Justice Minister Michael Masutha announced on October 21, 2016, that South Africa had initiated the process of withdrawing from the ICC by notifying the United Nations of its intention.
The withdrawal decision was as a result of 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. Bashir’s arrest warrants were issued by the ICC in 2009 and 2010.
The Darfur conflict has so far claimed as many as 300,000 people while about 2 million people have been displaced.
Several international court judgments stipulated that the South African government violated the law by not arresting the 71-year-old president during his visit to South Africa for an African Union summit in June 2015.
Al-Bashir was allowed to leave the country even though the North Gauteng High Court Judge Hans Fabricius ordered authorities to stop him then.
The summit was chaired by Zimbabwe’s president, Robert Mugabe, who had urged African leaders to pull out of the ICC. African states accuse the international court of only targeting political leaders in Africa and failing to punish those responsible for war crimes in the Middle East and elsewhere.
The withdrawal would have come into effect in October 2017, as it takes a year before the decision comes into effect.
Condemning SA’s negligence on the arrest in 2015, Kenneth Roth, the director of Human Rights Watch, said on Twitter: “[The] world stood [with] South Africa to fight apartheid, but it stands for impunity for mass murder of Africans.
“[The] world stood [with] South Africa to fight apartheid, but it stands for impunity for mass murder of Africans. South Africa has shamefully flouted ICC and the domestic court to free man wanted for mass murder of Africans.”
The UN general secretary, Ban Ki-moon, the EU, the US and the Western leaders also slammed South Africa for disrespecting the international tribunal and its decision.
South Africa is an ICC signatory and as such obliged to implement arrest warrants but the ANC allowed Al-Bashir to vamoose.
Gambia was the last country that left the International criminal court, precisely in October 2016 – just days after similar decisions were taken by South Africa and Burundi.
Gambia’s information minister Sheriff Bojang, at the time, said the court was being used “for the persecution of Africans and especially their leaders” while ignoring crimes committed by the west.”
He made mention of the case of the former British prime minister Tony Blair, whom the ICC decided not to indict over the Iraq war.
On October 21, 2016, Burundi left after its lawmakers overwhelmingly voted to leave the tribunal. The decision came just months after the ICC announced it would investigate recent political violence there. The bill was subsequently signed by President Pierre Nkurunziza.
The ICC was set up in 2002 to handle the world’s worst crimes. The international tribunal is often accused of bias against Africa and has also struggled with a lack of cooperation, including from the US.