Ratify ICC decision

I’M currently visiting South Africa and found some newspaper articles indicating that President Zuma has decided to unilaterally terminate South Africa’s obligations under the Rome Statute, the treaty that established the International Criminal Court (ICC).

South Africa was a leading proponent of this court, and its history of struggle for the rule of law in South Africa gave South Africa a great deal of global credibility for expanding rule of law obligations on a global basis.

Additionally, the unilateral termination by President Zuma is a complete denial of the most basic values that the ANC promoted in the struggle for freedom in South Africa.

There are two impressions that stand out. First, by repudiating the ICC President Zuma is sending a message that South Africa’s foreign relations are now being radically directed in support of dictatorships, torturers and war crimes psychopaths. This is a radical change for South Africa and was apparently done without appropriate consultation with the ANC and other leadership groups in South Africa.

The second impression is more sinister. President Zuma wants to follow the precedent of other African dictators who want to remain in power for life. To do this he may have to resort to the tactics of the dictators to the north. This would make him a potential defendant in the ICC proceedings. By withdrawing, he is making an anticipatory move to insulate himself from international accountability.

From the point of view of the constitutional culture of South Africa, there is a serious legal question whether President Zuma, the executive, has the power under law to unilaterally terminate the obligations South Africa has adopted under the Rome treaty. A treaty under South African law has to be ratified by Parliament before the president can deposit the treaty with the UN for it to come into force.

Since the vote of Parliament is a crucial legal condition for the establishment of a treaty obligation, the question arises as to whether President Zuma has the constitutional competence to terminate the treaty obligations without the consent of Parliament.

In my professional judgement, as a juris consult, I do not believe that President Zuma can unilaterally terminate South Africa’s treaty obligations without the decision to terminate being ratified by the Parliament of South Africa.

I would recommend that Parliament, the executive and the courts of South Africa gives this matter serious consideration. Winston P Nagan Stellenbosch