Disclosure of documents subject to implied undertakings
The High Court in Pretoria has ruled that the South African Government’s attempt to withdraw from the International Criminal Court (“ICC”) was ‘invalid’ and that the approval of Parliament is required.
In October 2016, the South African Government announced that it had initiated the process of withdrawing from the ICC by submitting a notice of its intention to leave to the United Nations. The opposition Democratic Alliance (“DA”) party challenged the decision arguing that the Government does not have the power to withdraw from the ICC without first consulting Parliament.
The High Court agreed with the DA and declared that the Constitution had not given the Government the power to withdraw from international treaties. In addition, the court declared that the ‘unexplained haste’ of the decision by the Government amounted to procedural irrationality. Consequently, the Judge ordered the Government to revoke its notice of withdrawal.
The Government’s decision to withdraw followed a dispute over the attendance of the Sudanese President Omar al-Bashir at the 2015 African Union summit in Johannesburg (see our earlier blog here). Al-Bashir is the subject of an arrest warrant from the ICC and as a signatory to the Rome Statute, the South African authorities were under an obligation to arrest him. The Government claimed he had immunity as the head of a state and refused to take him into custody. The refusal to arrest al-Bashir was later declared to be unlawful by both the High Court and the Supreme Court of Appeal.
South Africa is not alone in its criticism of the ICC. In February 2017, members of the African Union passed a non-binding resolution supporting ‘a strategy of collective withdrawal’ (see our earlier blog here). Further, last year, both Gambia and Burundi announced their intention to withdraw from the Rome Statute and other countries, such as Kenya, have indicated that they are considering the same. However, in a rare piece of good news for the ICC, Gambia has recently reaffirmed its support for the court following a change of leadership.
Whilst the High Court’s decision will be welcomed by supporters of the ICC, celebrations may be short-lived. Whether or not there is an appeal, South African ministers have been scathing in their criticism of the court and the governing ANC is likely to use its large parliamentary majority to proceed with its initial plans to withdraw. Nonetheless, opposition parties are likely to do all they can to delay the process and force the Government to consider the issue further.
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