South Africa's ICC exit

South Africa’s ICC exit barred by High Court

South Africa’s ICC exit threats were barred by court, mid this week. The Country’s intent to unsubscribe their membership from the Rome Statute, the international treaty which establishes the International Criminal Court, was in the news in October 2016. It came at the height of several threats from African States such as Kenya, Burundi and Gambia to unsubscribe their membership from the International justice body. In the end, we all feared that the ICC would be but a defunct body without any judicial power. Atuhairwe Agrace, my wonderful colleague, was most freaked out! She penned something about disenfranchising the ICC.

The reasons most countries presented as the basis for their desire to pull out of the ICC were that the ICC is like a colonial body. It only hunts African Statesmen and does not find fault with non-African statesmen.

And so, when South Africa announced its intent to leave the ICC – being about the fourth country to threaten exit, and we all feared for the existence of the ICC, we did so rightly.

Mid this week, Court in South Africa delivered a ruling of its kind! Not that we are not used to such rulings from South Africa – Isn’t it South Africa’s High Court which gave an order for the arrest of Omar el Bashir?, the decision was pivotal on the way forward regarding South Africa’s notice of withdrawal from the ICC. One wonders whether this decision will influence other African countries’ position on pulling out of the ICC, especially on the procedure of how to go about the withdrawal.

In the landmark case of Democratic Alliance v Minister of International Relations and Cooperation, and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) [2017] ZAGPPHC 53 whose ruling was delivered on 22 February 2017, the court’s decision was premised on the issue, whether the national Executive is entitled to decide on the withdrawal and execute its decision without the involvement of the Legislature and thereafter seek legislative approval, as it seeks to do. Secondly, whether it may execute its decision without the repeal of the Implementation Act

It looks like the principle of parliamentary sovereignty permeates from the British to all her colonies. Before initiating the move to pull out of the ICC, was Prior parliamentary approval and repeal of the Implementation Act needed? Was s 231 of the Constitution of South Africa considered?

Section 231 of the Constitution states:

‘(1) The negotiating and signing of all international agreements is the responsibility of the national Executive.

(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).

(3) An international agreement of a technical, administrative or Executive nature, or an agreement which does not require either ratification or accession, entered into by the national Executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.

(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.’

In essence, the section prescribes the manner in which international agreements are entered into, how they bind the country and how they are domesticated.

In the case of Glenister v President of the Republic of South Africa and others 2011 (3) SA 347; 2011 (7) BCLR 651 (CC) (which is also quoted by the High Court, in their decision), the Constitutional Court in describing the force of law of section 231 of the Constitution had this to say:

‘[181] In our view the main force of s 231(2) is directed at the Republic’s legal obligations under international law, rather than transforming the rights and obligations contained in international agreements into home-grown constitutional rights and obligations. Even though the section provides that the agreement ‘binds the Republic’, and Parliament exercises the Republic’s legislative power, which it must do in accordance with and within the limits of the Constitution, the provision must be read in conjunction with the other provisions within s 231. Here, s 231(4) is of particular significance. It provides that an international agreement ‘becomes law in the Republic when it is enacted into law by national legislation’. The fact that s 231(4) expressly creates a path for the domestication of international agreements may be an indication that s 231(2) cannot, without more, have the effect of giving binding internal constitutional force to agreements merely because Parliament has approved them. It follows that the incorporation of an international agreement creates ordinary domestic statutory obligations.

Whereas there seemed to be no debate on how treaties are entered into, the issue greatly touched on the reverse process: how does the Republic of South Africa withdraw from an international agreement?

In determining this issue, the Court agreed that it is the role of the Executive to develop and implement policy. They however noted that though the notice of withdrawal was signed and delivered in the Executive’s conduct of international relations, it was also done in exercise of public power. As such the exercise must confirm both to the principle of legality and must be subject to constitutional control.

The court equally agreed that it is the role of parliament to make laws. That therefore, the duty to formulate policy to withdraw from the Rome Statute lies with the Executive which will in turn make parliament to exercise its judgment to the policy by formulating a law to regulate withdrawal from the ICC.

That whereas it is indeed correct that in international law, parliamentary approval is not required to withdraw from an international agreement, it is trite law that the issue of who between the Executive and Parliament has to decide on withdrawal must be settled according to domestic law.  That since prior parliamentary approval is required before international instruments become law; it is difficult to accept that the reverse process should not be subject to the same parliamentary process.

“If it is parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national Executive can unilaterally terminate such an agreement…What is more, it is trite that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well. In the context of this case, the power to bind the country to the Rome Statute is expressly conferred on parliament. It must therefore, perforce, be parliament which has the power to decide whether an international agreement ceases to bind the country. The conclusion is therefore that, on a textual construction of s 231(2), South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act” the court decided

As such, it does not matter that the Executive presented the notice of withdrawal to parliament for ratification. Subject to the principle of legality, an act done without power/authority to do it is null and void. Ex post facto approval by parliament does not cure that invalidity.

Given that the Executive by-passed the role of parliament before delivering the withdrawal notice to the United Nations, the court also found that the notice of withdrawal was procedurally irrational.

As such, the court made the following orders:

  1. The notice of withdrawal from the Rome Statute of the International Criminal Court, signed by the first respondent, the Minister of International Relations and Cooperation on 19 October 2016, without prior parliamentary approval, is unconstitutional and invalid;
  2. The cabinet decision to deliver the notice of withdrawal to the United Nations Secretary-General without prior parliamentary approval is unconstitutional and invalid;
  3. The first, second and third respondents – the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the President of the Republic of South Africa, are ordered to forthwith revoke the notice of withdrawal referred in paragraph 1 above.

That said, South Africa is not about to pull out of the Rome Statute.

Other African countries, especially those which are of the common law jurisdiction, who seek to pull out of the ICC, should not make a similar blunder. A motion must be passed in parliament allowing the exit.

Most especially, the role of the ICC must not be undermined. Crimes against humanity are real. People die in wars, women are raped, genocides happen, and behind all these, someone is usually responsible. We must all say with one voice, “Down with impunity!”


This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 4 of February 25th 2017

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