The High Court in Pretoria’s judgment in the litigation challenging the procedural aspects of the government’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC) dealt with four main issues.
Was parliamentary approval required before the notice of withdrawal could be delivered to the UN? Was prior repeal of the Implementation of the Rome Statute of the International Criminal Court Act required before delivery of the notice to the UN? Was the delivery of the notice to the UN without prior consultation with Parliament irrational? Does the withdrawal from the Rome Statute breach the state’s obligations under s7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights?
On the first question, the high court held that the national executive requires prior parliamentary approval to withdraw from an international agreement. The national executive, thus, did not have the power to deliver a notice of withdrawal to the UN without such approval. The decision to deliver the notice of withdrawal prior to obtaining parliamentary approval consequently violated s231(2) of the Constitution and breached the doctrine of separation of powers.
In reaching this conclusion, the court found there is no question that the power to conduct international relations and conclude treaties is in the hands of the national executive in terms of s231 of the Constitution. However, in exercising this power, the national executive must engage Parliament.
While the signature and delivery of the withdrawal notice were acts in the realm of international relations, they remained an exercise of public power, which is subject to constitutional control.
Therefore, although the formulation of policy to withdraw from the Rome Statute falls within the purview of the Cabinet, the execution of that policy through signing and delivering the notice of withdrawal has "concrete legal effects" in international law as it is a binding, unconditional and final decision to terminate SA’s treaty obligations under the Rome Statute. The power to determine whether to remain bound to a treaty remains vested in Parliament.
Although the government argued that the Cabinet’s decision could be ratified by Parliament (as it has now asked Parliament to do), the high court rejected that argument.
It held that because the national executive had purported to exercise a power it did not have under the Constitution, that conduct had no effect in law.
Importantly, the court was at pains to emphasise that its decision in no way affects the validity of the justice minister’s tabling of the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill and Related International Instruments Bill. That process is legitimately and properly before Parliament.
The court also found that it is necessary to repeal the implementation act before delivering a notice of withdrawal to the UN.
The high court noted that government action must be connected to a legitimate government purpose in order to be considered rational.
The reason advanced for withdrawal from the Rome Statute was that it would enable the government to pursue its peacemaker role on the African continent without the obligation to arrest indicted heads of state.
The court concluded that SA’s international law obligations including the obligation to arrest indicted persons in South African territory, are incorporated in the implementation act and are thus not dependent on the Rome Statute. Those obligations are not displaced unless the act is repealed.
The state provided no reason for the seemingly urgent need to withdraw from the Rome Statute. The court considered this unexplained haste on its own to constitute procedural irrationality.
Constitution question
The high court did not delve into the fourth, substantive question of whether SA’s withdrawal from the Rome Statute breaches s7(2) of the Constitution. This was left open to be decided by another court at a later stage if necessary.
Overall, the high court declared the notice of withdrawal from the Rome Statute as well as the national executive’s decision to deliver that notice without prior parliamentary approval unconstitutional and invalid. It ordered that the state revoke the notice immediately.
The judgment has striking parallels with the recent UK Supreme Court’s judgment in relation to triggering article 50 of the Treaty of the EU through the delivery of a withdrawal notice that would begin the Brexit process.
The key question in that case was whether an article 50 notice could be delivered by British government ministers without an act of Parliament. The majority judgment found that an act of Parliament is required before any notice can be delivered, triggering Britain’s withdrawal from the EU.
Parliament’s portfolio committee on justice and correctional services is inviting public comment on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill and Related International Instruments Bill.
The public is also invited to comment on the declaration of the decision to withdraw from the ICC. The deadline for comments is March 8.
• McGibbon is an associate in public law at Cliffe Dekker Hofmeyr.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.