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Why South Africa’s Withdrawal From ICC Is Against The Law

THE HAGUE, NETHERLANDS - JULY 23: View of the International Criminal Court as Dutch prosecuters consider a war crimes investigation of the Malaysia Airlines crash July 23, 2014 in The Hague, The Netherlands. Malaysia Airlines flight MH17 was travelling from Amsterdam to Kuala Lumpur when it crashed killing all 298 on board including 80 children. The aircraft was allegedly shot down by a missile and investigations continue over the perpetrators of the attack. (Photo by Michel Porro/Getty Images)

The court heard an application yesterday by the DA and a number of non-governmental organisations for the court to declare unlawful and invalid the executive’s unilateral decision to withdraw this country from the Rome Statute of the International Criminal Court.

They also want the court to order President Jacob Zuma and the minister of justice and of international relations to revoke the notice of intended withdrawal from the ICC sent to the UN in October.

In October, Justice Minister Michael Masutha justified this country’s withdrawal from the ICC by saying that The Hague court was making it harder for South Africa to pursue peace and security in Africa because it stripped national leaders of their diplomatic immunity.

The decision to withdraw follows Sudanese President Omar al-Bashir’s visit to this country last year to attend the African Union summit. A warrant for his arrest has been issued by the ICC, which wants to try him for war crimes. The South African government failed to honour the arrest warrant.

The thrust of the DA’s case is that the power to enter into and withdraw from international treaties is vested in parliament, not the executive.

The government’s position is that treaty-making is the prerogative of the executive, headed by the president.

Advocate Steven Budlender, for the DA, told a full bench headed by Deputy Judge President Phineas Mojapelo that: “It’s parliament that must decide if South Africa must be bound by a treaty. There can really be no doubt that if the executive decides to ratify a treaty, without obtaining approval from parliament, that would be unlawful.”

Advocate Anton Katz, for the Council for the Advancement of the Constitution of SA, said the best way for the executive to deal with the matter was to repeal the Implementation of the Rome Statute of the ICC Act.

Advocate Jeremy Gauntlett, for the president and ministers, will begin his argument today.


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