Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now)

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On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid.

The government had argued that the executive’s authority to negotiate and sign international treaties (per sections 231(1) and (3) of the Constitution) necessarily included the power to withdraw from treaties, and that parliament’s role was confined to that explicitly provided for in the Constitution in sections 231(2) and (4), that is, to approve signed treaties subject to ratification and to pass domesticating legislation if it so chose. The court, however, held that because parliamentary approval is required to ratify treaties:

[T]here is a glaring difficulty in accepting that the process of withdrawal should not be subject to the same parliamentary process. The necessary inference, on a proper construction of s 231, is that parliament retains the power to determine whether to remain bound to an international treaty. This is necessary to give expression to the clear separation of powers between the national executive and the legislature embodied in the section. 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.

The court emphasized that the process for withdrawal was regulated only by domestic law, and “is a domestic issue in which international law does not and cannot prescribe.”

The South African court’s reasoning is wider than that of the UK Supreme Court in the Brexit case. In the latter, it was held that withdrawal from the EU required parliamentary approval due to the significant constitutional change that would result: eliminating EU law as a source of domestic UK law and negating certain rights of UK citizens vested in domestic law by virtue of EU law. Since parliament alone can make domestic law, parliament alone could approve these changes to domestic law. The South African decision, by contrast, held that any treaty subject to ratification required Parliamentary approval for withdrawal – whether or not withdrawal would result in a change to South African domestic law. In this case, withdrawal would require a change of South African domestic law, given the domestication of the Rome Statute, but the court’s reasoning was not confined to domesticated treaties.

In addition, the Court held that the decision to withdraw without prior parliamentary approval was ‘procedurally irrational’. Had the notice of withdrawal taken effect before Parliament had decided to repeal the Rome Statute Implementation Act, which was plausible as things stood, this would have resulted in a legal quagmire. According to the court:

[T]here would be clumsy piece-meal processes, with undesirable and embarrassing outcomes for South Africa. … The question should be: what is so pressing for the national executive about withdrawal from the Rome Statute which cannot wait for our legislative processes (and possibly judicial pronouncements) to take their course? All these, in our view, point to one conclusion: the prematurity and procedural irrationality of the lodging of the notice of withdrawal by the national executive without first consulting parliament. This unexplained haste, in our view, itself constitutes procedural irrationality.

Thus, the executive must wait for parliament both to approve withdrawal from the ICC, and successfully repeal the domesticating legislation, before valid notice of withdrawal can be given under article 127(1) of the Rome Statute. On the same reasoning, the court could have also required the prior amendment or repeal of other domestic legislation (for example, the Geneva Conventions Act) that also domesticates elements of the Rome Statute.

Given these procedural challenges, the court concluded that the notice of withdrawal is unconstitutional and therefore invalid. As such, the government was ordered to revoke the notice of withdrawal that had been sent to the UN Secretary-General. A fresh notice is therefore required, after parliamentary approval is obtained, to re-start the 12-month withdrawal period provided for in the Rome Statute.

Next Steps for South Africa and the ICC

The South African government must now decide whether to appeal against the judgment, or rely on its substantial majority in parliament to push through the ‘Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill’ that has already been tabled. If passed, the Repeal Bill will (evidently) repeal the domesticating legislation, and presumably also constitute parliamentary approval for withdrawal from the Rome Statute. Accordingly, it would clear the way for withdrawal, satisfying the requirements of the High Court decision. An appeal may therefore not be worthwhile.

Nonetheless, there are aspects of the judgment that may convince the executive to appeal regardless of their anticipated success in parliament. The High Court’s reasoning is wide-ranging and will have substantial consequences for treaty practice in South Africa, requiring parliamentary approval to leave any treaty that has been ratified. While such an extensive decision may be celebrated for its immediate consequences, there is a danger of an equal and opposite reaction from the executive. It may result in the executive becoming less willing to join treaties, or encourage the South African government to take further isolationist steps. It may be argued that the overly-broad reasoning of the South African Supreme Court of Appeal in the Bashir case (holding that the Implementation Act negates all immunity in South Africa of foreign Heads of State in relation to charges of international crimes, whether or not subject to an ICC arrest warrant) materially contributed to the executive’s decision to withdraw from the ICC altogether. An appellate court would be justified in narrowing the ratio, requiring parliamentary approval for treaty withdrawals that would, as here, require changes to South African domestic law, but giving the executive more leeway concerning other treaties.

Further, the High Court declined to address substantive challenges that had been made to the withdrawal, which may be resurrected on appeal. The DA argued, for instance, that withdrawal from the ICC by South Africa would be unconstitutional because doing so would constitute a retrogressive step in the protection of human rights, therefore violating the obligation to respect, protect, promote and fulfil constitutional rights in section 7(2) of the Constitution. Had such a challenge been upheld, this would effectively bar South Africa from withdrawing from the ICC at any stage, with or without Parliamentary approval. The court, wisely, declined to address these substantive grounds, unless and until further challenges are brought to legislation authorising withdrawal from the ICC. If such a challenge is upheld in the future, this will be a radical judicial intervention in the treaty-making powers of the executive and legislative branches of the government. Such a decision would again risk causing unintended consequences, possibly even attempts at Constitutional amendment.

As noted, the government could instead choose to forego an appeal in the expectation that the Repeal Bill will be passed. However, passage of the Bill is not a fait-accompli. The Bill is currently open for public consultation (written submissions can be sent until 8 March 2017), and clearly the opposition is invested in keeping South Africa in the ICC. Civil society has also been a powerful force thus far in maintaining South Africa’s commitment to the ICC. It is possible, therefore, that the executive can be convinced that any benefit from withdrawal is not worth the significant reputational costs of becoming the first State to leave the ICC. The recent reversal of the Gambia’s decision to withdraw from the Court may assist in this regard.

The possibility of persuading South Africa to reconsider becomes more likely if the purported gains from withdrawal – that is, resolving South Africa’s stated concern regarding immunity of Heads of State of non-ICC State parties – can be achieved without leaving the ICC. Indeed, the government representatives in the High Court proceedings mentioned the possibility of a diplomatic solution developing, which could mean that leaving the ICC would not be necessary. The postponement of South Africa’s withdrawal resulting from the High Court decision provides a key opportunity for such solutions to develop. The first step was in fact taken at the last meeting of the ICC Assembly of States Parties. At South Africa’s request, the ASP Bureau has established a working group to develop consultation mechanisms to be used when a Member State is subject to an ICC obligation to arrest an individual who the State considers to be protected by international legal immunities, provided for in Article 97 of the Rome Statute. If effectively developed, such mechanisms could prevent future crises like those posed by Bashir’s visit to South Africa. In addition, the impending non-cooperation proceedings against South Africa afford an opening for judicial clarification of the immunity provisions of the Rome Statute, Articles 27 and 98, which have thus far been interpreted in an unsatisfactory and inconsistent manner. If the ICC can more convincingly address the immunities issue through these diplomatic and judicial means, taking into account the concerns of South Africa and other member States, this could convince South Africa to remain in the Court.

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