International and Domestic Implications of South Africa’s Withdrawal from the ICC

In the early hours of Friday 21 October 2016, it was revealed that the South African Minister of International Relations and Cooperation had issued official notification of South Africa’s withdrawal from the International Criminal Court (a copy of the instrument of withdrawal can be seen here). This was received by the UN Secretary-General, starting the prescribed 12-month notice period for withdrawal from the Court (Article 127 of the Rome Statute). This announcement came as a shock to many in the legal community in South Africa and abroad. While the South African government had expressed unhappiness with the Court, and had previously threatened withdrawal, there was no public indication that an official decision to withdraw had been taken, nor had any public consultation taken place on the matter in Parliament or elsewhere.

This decision will have significant implications for the legal landscape in South Africa, and likely also for the position of other African States in the ICC. It is also possible that it will lead to the fundamental weakening of the ICC itself. Here I consider various implications of this sudden announcement, both from the domestic South African and international perspectives. First, I address the status of the instrument of withdrawal in international and domestic law. I then look at the impact of withdrawal for the enforcement of international criminal law in South Africa. Finally, I address some possible consequences for the ICC itself.

Is it Legal?

The first question is whether the notice of withdrawal signed by the Minister is lawful, from the lenses of international and domestic law, given that this was a purely Executive act that was not preceded by any form of public or parliamentary consultation, let alone approval. Similar questions arise in the context of the Brexit ‘Article 50’ debate. While it seems that the instrument of withdrawal is likely sufficient to take effect in international law, it is doubtful that the domestic legal requirements have been adhered to.

1. International Law

In terms of international law, a State must comply with the provisions on withdrawal set out in the treaty itself (Art 54 VCLT).  Article 127 of the Rome Statute requires written notice of withdrawal to be given to the UN Secretary-General, and establishes that this will take effect one year after receipt, unless a later date is specified in the instrument of withdrawal. As we know, compliance with domestic constitutional requirements for treaty consent are not generally the concern of international law, and violation thereof will not affect the internationally-binding nature of a treaty signed by an authoritative State representative, unless the violation was ‘manifest’ and the rule breached was of ‘fundamental importance’ (Art 46(1) VCLT). Such a violation is manifest if it “would be objectively evident to any State conducting itself in a matter in accordance with normal practice and in good faith” (Art 46(2) VCLT). So, if a domestic authority with full powers signs an international treaty, it is generally considered to be sufficient to bind that State to the treaty in question, regardless of domestic constitutional requirements. If this is the case for joining treaties, the same will likely be true for treaty withdrawal. It could be argued that an analogy should be drawn with the provisions of Art 46 in relation to withdrawal – if the manner of withdrawal constituted a manifest violation of a domestic rule of fundamental importance, then it should be considered to be ineffective in international law. However, I am not aware of any cases in which this interpretation has been mooted; and in any event, given the lack of clarity in the South African domestic law (see below), it is unlikely that this could be considered to be a ‘manifest’ violation. It seems, therefore, that unless revoked by the South African government, the instrument of withdrawal will be effective from an international perspective.

2. Domestic Law

The position is potentially different from the angle of domestic law. The 1996 South African Constitution does not expressly set out treaty withdrawal procedures, and there is no case law addressing the issue. Nonetheless, there is a good argument that Parliamentary approval is necessary for the Executive to withdraw from the Rome Statute. Section 231 of the Constitution requires Parliamentary approval of treaties that are subject to ratification, and also for the domestication of treaties. Given that Parliament then was constitutionally required to approve the Rome Statute twice – at the ratification and domestication stages – it would be inconsistent not to require Parliamentary approval before withdrawal. This is especially so given the undesirable legal complexity that would result from withdrawal from a domesticated treaty, where the domesticating legislation remains in place (see below). If the Executive action is considered to be unconstitutional, then a South African court may order the revocation of the instrument of withdrawal, ending the current notice period.

Such an argument is likely to be put forward by civil society groups in South Africa, who have already announced their intention to launch a review of the decision to withdraw from the Rome Statute.  (This is another example of the important role played by civil society in enforcing ICL in Africa:  for more detail, see Williams and Woolaver (eds) Civil Society and International Criminal Justice in Africa: Challenges and Opportunities (Juta, 2016)).

The Effect on Enforcement of International Criminal Law in South Africa

Assuming that the notice of withdrawal is effective, this creates a messy situation in South African law, with drastic consequences for the domestic enforcement of international criminal law. As I’ve mentioned, the Rome Statute was domesticated in South African legislation, the ‘Implementation of the Rome Statute of the International Criminal Court Act 2002’ (the ‘SA ICC Act’). The Act establishes domestic procedures for cooperation with the ICC (Chapters 3-4), including provisions on the execution of ICC arrest warrants, and also provides for the domestic prosecution of some international crimes (Chapter 2). This legislation would therefore be senseless without membership in the ICC. It would clearly have to be repealed or at least significantly amended should South Africa’s withdrawal proceed– but of course only Parliament would have the authority to do so. Given the constitutional requirements of Parliamentary debate and public participation in legislative decisions, we may well find ourselves in situation where the SA ICC Act persists, but South Africa’s membership of the ICC does not.

The SA ICC Act establishes domestic crimes of genocide, war crimes, and crimes against humanity, and asserts universal jurisdiction over these crimes (s 4(3)(c)). If the SA ICC Act is repealed, then such jurisdiction will no longer exist in South Africa. This would be a further significant blow to the international web of enforcement of international criminal law. Recent domestic jurisprudence has established South Africa as a key venue for the possible prosecution of international crimes. The Constitutional Court has held that the SA ICC Act imposes an obligation on domestic authorities to investigate international crimes committed outside of South Africa (National Commissioner of the South African Police Service v Southern Africa Litigation Centre case (2014)). In addition, in the Supreme Court of Appeal decision in the Bashir matter, it was held that the SA ICC Act negated all forms of customary international law immunity from charges of international crimes, whether in relation to domestic prosecutions for such crimes or execution of an ICC arrest warrant. (This latter case was to be heard on appeal to the Constitutional Court on 22 November, but the government has now announced that it will not pursue the appeal.)  Repeal of the SA ICC Act would effectively erase these landmark judgments.

It is possible that the Act could be amended so as to uncouple the domestic jurisdiction over international crimes from the ICC cooperation obligations, which would at least retain the ability to prosecute these crimes domestically.  However, further domestic legal complications exist. The passage of the SA ICC Act resulted in the amendment of other pieces of legislation, including the South African Police Service Act 1995, and is also referenced in other legislation such as the Geneva Conventions Act 2012. All such legislation would need to be modified in the face of withdrawal from the Rome Statute. Withdrawal from the Rome Statute could therefore lead not only to the end of South Africa’s membership of the ICC, but also the end of a complex and sophisticated regime for the domestic prosecution of international crimes.

Possible Implications for the ICC

Apart from the damaging implications for the South African domestic legal system, South Africa’s decision to leave the ICC may of course have significant international implications, including the fundamental weakening of the ICC. This is particularly so given South Africa’s powerful position in the region, and its previously leading role in supporting the Court (it is well known that President  Mandela was a firm supporter of the Court, and that South Africa was the first African State to ratify and domesticate the Rome Statute). The President of the Assembly of States Parties has already referred to the “disturbing signal [that] would open the way to other African States withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crimes of aggression.” This potential ‘domino effect’ is not far fetched – South Africa’s announcement follows closely on the heels of Burundi’s announcement of its withdrawal from the Court, and must be viewed in the context of repeated threats of withdrawal issued by African Union Member States over the years. The fact that South Africa’s decision came about days after a visit between President Zuma and President Kenyatta of Kenya does not augur well for the continued membership of African States.

However, it is possible that this announcement might prompt action at the ICC that could lead to South Africa’s reconsideration of its position, as has been urged by the President of the ASP. The upcoming meeting of the ASP in November provides an urgent opportunity to engage with South Africa’s stated reasons for withdrawal, especially South Africa’s claim that “its obligations with respect to the peaceful resolution of conflicts at time are incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute of the International Criminal Court.” Essentially, this refers to a claimed clash between the African Union’s position that President Bashir is immune before the ICC, and the ICC’s view that he is not (see Dapo’s post for more details on this). At the 2015 Assembly of States Parties meeting, South Africa had argued that detailed procedures needed to be established under Article 97 of the Rome Statute, which provides for ‘consultations’ between the Court and a Member State who receives a request for cooperation and “identifies problems which may impede or prevent the execution of the request”, including a clash of obligations. If one wishes to be optimistic, it may be that if the development of such mechanisms is seriously engaged with at the upcoming November ASP, South Africa could be sufficiently placated to revoke its instrument of withdrawal. However, given that the neither the ICC nor the AU is likely to reverse its position on Bashir’s immunity, it is perhaps unrealistic to hope that any significant benefit could result from such consultations.

Finally, South Africa’s withdrawal may lead to accelerated ratification by AU Member States of the expansion of the African Court of Justice and Human Rights’ jurisdiction to include international crimes – which could in turn accelerate further withdrawals from the ICC by AU Member States. The South African Justice Minister, for instance, emphasized South Africa’s focus on regional peace and justice mechanisms as a factor influencing the decision to withdraw from the ICC. Should this result in a good faith effort to prosecute international crimes at the regional level, this would be welcome. However, there are significant caveats that must be addressed before the African Court can be seen as a viable alternative to the ICC, including: the severe lack of resources at the Court; the unclear scope of the proposed international criminal jurisdiction, encompassing the classic international crimes, as well as transnational crimes, and new categories of crimes such as the crime of ‘unconstitutional change of government’ (Art 28A Protocol on Amendments to the Protocol of the African Court of Justice and Human Rights); and, perhaps most troublingly, the grant of immunity to sitting African leaders, potentially protecting a much wider range of officials than the ‘troika’ currently recognised as benefiting from immunity ratione personae in  customary international law (Art 46A bis Protocol). Given these substantial barriers to effective prosecution of international crimes at the African Court, a withdrawal from the ICC is, to put it lightly, premature.