Johannesburg (AFP) – A South African court on Wednesday ordered the government to withdraw its “unconstitutional” bid to pull out of the International Criminal Court, in a boost to the embattled Hague-based institution.
The decision was a blow to President Jacob Zuma but a welcome piece of good news for the ICC, which has been rocked by threats of withdrawal amid complaints of an alleged bias against Africa.
South Africa announced it had lodged its decision to pull out with the United Nations in October, following a dispute over Sudanese President Omar al-Bashir visiting the country in 2015.
South African authorities refused to detain Bashir despite him being the subject of an ICC arrest warrant over alleged war crimes, saying he had immunity as a head of state.
“The cabinet decision to deliver the notice of withdrawal… without prior parliamentary approval is unconstitutional and invalid,” said judge Phineas Mojapelo in the North Gauteng High Court.
The president and ministers were “ordered forthwith to revoke the notice of withdrawal”.
Justice ministry spokesman Mthunzi Mhaga said the government would “reflect on the reasons for the judgement and decide whether to appeal or not”.
The opposition Democratic Alliance (DA) party, which was one of the groups that brought the court case, welcomed the ruling.
“The withdrawal by the South African government from the ICC was irrational,” DA lawmaker James Selfe told AFP.
“We would like South Africa to stay in the ICC because we believe that it is consistent with our constitution and with the legacy of Nelson Mandela.
“The government should go back to the drawing board and reconsider the thing afresh in light of this judgement.”
ICC under threat?
After the election of President Adama Barrow, The Gambia’s new government in February asked the UN to halt its process of withdrawal from the ICC.
Burundi has registered to leave, while Kenya is considering the move.
Currently nine out of the ICC’s 10 investigations concern African countries, the other being Georgia.
However experts point out that many of the current investigations — in the Central African Republic, Uganda, Mali and the Democratic Republic of Congo — were referred to the ICC by the governments of those states.
Bashir has evaded arrest since his ICC indictment in 2009 for alleged war crimes in Sudan’s Darfur conflict in which 300,000 people were killed and two million forced to flee their homes.
South Africa’s Supreme Court of Appeal accused the government of “disgraceful conduct” over Bashir’s visit and ruled that the failure to arrest the Sudanese leader was unlawful.
The ICC was set up in 2002 in The Hague as a court of last resort to try the world’s worst crimes where national courts are unable or unwilling to act.
The court is unable to carry out investigations in countries which have not ratified its founding Rome Statute, unless the United Nations refers a case for investigation.