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South African court rules against ICC withdrawal
23 February 2017, 12:51 | Sue Hudson
South African Court Invalidates ICC Withdrawal
South Africa announced in October it had lodged its decision to withdraw with the United Nations, following a dispute over Sudanese President Omar al-Bashir visiting the country. Al-Bashir was allowed to leave South Africa even though a local court ordered authorities to arrest him.
On Wednesday, 22nd February 2017, a court in South Africa's administrative capital Pretoria ruled the state's decision to withdraw from the International Criminal Court (ICC) as unconstitutional.
Under the Rome Statute, South Africa as an ICC member has an obligation to arrest anyone sought by the tribunal.
"What is so pressing for the national executive about the withdrawal. which can not wait for our legislative processes to take their course?" the court's ruling said.
The opposition Democratic Alliance had filed the court case against the government's withdrawal bid.
In his response to the high court ruling, Mr Masutha said the government still meant to quit the ICC, and would consider its options after studying the judgment, Reuters news agency has reported. Because the decision was made so quickly, and without approval from Parliament, that notice of withdrawal is unconstitutional, and must be revoked.
The ICC has had to fight off allegations of pursuing a neo-colonial agenda in Africa, where most of its investigations have been based.
Essentially, the executive will now have to begin the process of withdrawal afresh, if they still wish to do so, and this time they would need to obtain Parliament's approval prior to taking any action.
The court did not rule on whether or not South Africa should withdraw from the treaty.
After the election of President Adama Barrow, The Gambia's new government in February asked the United Nations to halt its process of withdrawal from the ICC.
Gambia and Burundi also announced past year that they were withdrawing from the court, but Gambia's new leader reversed that decision earlier this month.
The case hinged on a constitutional interpretation of the separation of powers between the executive and legislative branch of government. "South Africa does not want to be lumped together with pariah states who have no respect for human rights", the Democratic Alliance said.
South Africa said it was quitting the ICC because membership conflicted with diplomatic immunity laws.
The issue may also be a factor in the run-up to and aftermath of the ruling African National Congress's internal leadership vote in December this year.
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