High-powered court bid to halt ICC withdrawal

THE Pretoria High Court was called upon to decide whether the executive arm of government can withdraw South Africa from an international treaty.

The court heard an application by the DA and several nongovernment organisations yesterday.

They want the court to declare the government’s decision to withdraw from the Rome Statute of the International Criminal Court unlawful and invalid.

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

At the time, Justice Minister Michael Masutha explained South Africa’s withdrawal by saying the ICC was making it harder for the country to pursue peace and security in Africa because it stripped leaders of their diplomatic immunity.

The withdrawal follows the controversial visit of Sudanese President Omar Al-Bashir last year to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC.

A number of organisations agreed with the DA’s submissions, whose main thrust was that the power to enter and withdraw from international treaties was vested in parliament, not the executive.

The organisations include the Council for the Advancement of the Constitution of SA (Casac), the Helen Suzman Foundation, the Southern Africa Litigation Centre and the Centre for Human Rights.

“It is parliament that must decide if South Africa must be bound by a treaty,” Advocate Steven Budlender SC, for the DA, told the full bench of the high court, headed by Deputy Judge-President Phineas Mojapelo.

“There can really be no doubt that if the executive decides to ratify a treaty, without obtaining approval from parliament, that would be unlawful.”

Anton Katz SC, counsel for Casac, said the appropriate way for the executive to deal with the matter was to repeal the Implementation of the Rome Statute of the ICC Act, the law which enjoins South Africa to arrest people wanted by the ICC and to surrender them to the ICC.

“The executive has no power to act at all until parliament has made a resolution,” Katz said.

Jeremy Gauntlett SC, for the president and the two ministers, will begin his arguments opposing the applications today.

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