Johannesburg, South Africa | AFP | South Africa has formally revoked its controversial decision to leave the International Criminal Court (ICC) following last month’s High Court ruling that such a move would be unconstitutional.
Notice of Pretoria’s decision to end the withdrawal process was posted on the UN’s treaty website this week, although it does not necessarily spell the end of its bid to leave the Hague-based court.
South Africa had in October announced it would withdraw from the UN court which was set up to try the world’s worst crimes following a dispute sparked by its refusal to arrest visiting Sudan President Omar al-Bashir.
The ICC had issued an arrest warrant for Bashir over alleged war crimes, but South African authorities refused to detain him, saying he had immunity as a head of state.
The decision to leave the UN court sparked widespread criticism, but on Tuesday, Pretoria informed UN Secretary General Antonio Guterres that the process by which it had begun withdrawing “was found to be unconstitutional and invalid”.
“In order to adhere to the (High Court) judgement, I hereby revoke the Instrument of Withdrawal from the Rome Statute of the International Criminal Court with immediate effect,” the notice on the UN’s treaty website said.
Last month, the North Gauteng High Court ruled that the government’s bid to quit the ICC was unconstitutional because it had failed to properly consult parliament.
The case was brought by the main opposition party, the Democratic Alliance.
Although Pretoria complied with the court ruling, this week’s decision to cancel the withdrawal process may only be a temporary reprieve, with the government expected to table a bill in parliament to win approval for South Africa’s departure from the court.
– Court in a bind? –
Although the High Court ruling was a blow to President Jacob Zuma, it was welcome news for the ICC, which has been hit by a number of withdrawal threats following complaints of an alleged bias against Africa.
Late last year, The Gambia had notified the UN it was withdrawing from the ICC in a process which was swiftly reversed under the government of new President Adama Barrow, who took office in January.
Burundi has also registered to leave, while Kenya is considering following suit.
Currently, nine out of 10 ICC investigations concern African countries, with the only other case concerning Georgia.
However, experts point out that many of the current cases — in Central African Republic, Uganda, Mali and the Democratic Republic of Congo — were referred to the ICC by the governments of those states.
Bashir has evaded arrest since his ICC indictment in 2009 for alleged war crimes in Sudan’s Darfur conflict in which 300,000 people were killed and two million forced to flee their homes.
The South African government’s decision not to arrest him was denounced as “disgraceful conduct” by the country’s Supreme Court which also ruled that the failure to arrest the Sudanese leader was unlawful.
The ICC was set up in 2002 in The Hague as a court of last resort to try the world’s worst crimes where national courts are unable or unwilling to act.
The court is unable to carry out investigations in countries which have not ratified its founding Rome Statute unless the United Nations refers a case for investigation.