Court judgment on ICC withdrawal should be followed by broad consultative process

Posted on February 23, 2017


The Centre for Human Rights (CHR), in the Faculty of Law at the University of Pretoria, welcomes this week's judgment of the Full Bench of Gauteng Division, Pretoria, in the matter of Democratic Alliance v Minister of International Relations and Cooperation and Others (case no 83145/16). The CHR, represented by the Legal Resources Centre, was joined as a party to the proceedings by the applicant for its interest in the matter.

The CHR argued before the High Court that the South African Government's decision to withdraw from the Rome Statute of the International Criminal Court (ICC) is unconstitutional and invalid for four reasons:

First, it violates the separation of powers, as the National Assembly and the National Council of Provinces have not, by resolution, approved the entering of the Instrument.

Second, the decision to withdraw was taken without any public participation.

Third, it is substantively irrational because the means – withdrawing from the Rome Statute – are not rationally connected to ends – 'to promote peace and security on the African continent'.

Fourth, it is inconsistent with the South African Government's obligations under sections 1(d) and 7(2) of the Constitution, read in light of its obligations under the African Charter, the Constitutive Act of the African Union, and decisions, resolutions and reports of the African Commission espousing respect for the sanctity of human life, and rejection and condemnation of impunity.

In the judgment, the High Court held that the Executive's failure to obtain prior parliamentary approval before delivering the notice of withdrawal to the United Nations was a violation of section 231(2) of the Constitution and a breach the doctrine of separation of powers. The High Court further stated that the delivery of the notice of withdrawal in October 2016 was procedurally irrational, and a proper construction of section 231 of the Constitution would require prior parliamentary approval and the repeal of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 before the notice of withdrawal could be delivered to the United Nations.

The High Court opted to refrain from expressing any view on the substantive grounds raised by the parties.

In the meantime, the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] (ICC Repeal Bill) has been introduced in the National Assembly.  The public has been invited to provide comments on the ICC Repeal Bill (together with the explanatory memorandum to the Bill), as well as on the Instrument of Withdrawal (together with the Government's declaratory statement and the explanatory memorandum issued with the Instrument of Withdrawal). The closing date for the submission of comments is 8 March 2017. 

Professor Frans Viljoen, Director for the CHR, welcoming the High Court's judgment, stated:

'The judgment firmly underscores how important it is that the South African Government consistently act with due regard to the demands of the Constitution, both on the domestic and the international planes. We applaud the Portfolio Committee on Justice and Constitutional Services for inviting public comment, not only on the ICC Repeal Bill but also on the Instrument of Withdrawal and the Government's justifications for withdrawing. To give effect to the letter and spirit of the High Court's judgment, a broad consultative process should be followed before Parliament considers the possibility of withdrawal from the ICC. To provide such an opportunity, we request that serious consideration be given to extending the due date for submissions on the issue of withdrawal.'


Click here to read the judgment.


For more information, please contact:

Prof Frans Viljoen
Director: Centre for Human Rights
University of Pretoria
Tel: 012 420 3228
Email: [email protected]

Michael Power
Legal Resources Centre
Tel: 011 836 9831
Email: [email protected]



- Author Centre for Human Rights

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