'Hasty, irrational and unconstitutional': High Court's damning verdict on SA's ICC withdrawal

South Africa began the process of withdrawing from the ICC previous year, following the furore over Sudanese president Omar al-Bashir. Bashir has been indicted by the ICC for crimes against humanity and genocide, but South Africa argued that he was immune from arrest as a head of state attending a continental gathering.

A South African court on Wednesday ruled the government's plan to withdraw from the International Criminal Court (ICC) was "unconstitutional and invalid", dealing a blow to President Jacob Zuma.

South African Justice Minister Michael Masutha in November submitted a bill to the parliament to withdraw from the Rome Statute, the official agreement which created the International Criminal Court (ICC) in 1998.

South Africa, however, remains the heavyweight in the African mutiny against the ICC.

United Nations secretary-general Antonio Guterres said he welcomed Gambia's decision and expressed hope that the court's members "will continue to further strengthen the court through a constructive dialogue". "The postion is the one that we communicated to the general public and it is that Malawi, as a founding State Party, will remain and fight for reform in the ICC from within the ICC", said Kasaila.

Judge Phinehas Mojapelo gave the ruling on Wednesday in Pretoria, the country's administrative headquarters ordering that government should revoke it.


The court ruled that the withdrawal was unconstitutional and invalid.

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.

South Africa's decision to leave International Criminal Court unconstitutional says High Court
The ICC issued an arrest warrant for Mr al-Bashir in 2009 after charging him with five counts of crimes against humanity. A High Court in South Africa had earlier ruled that the country's decision to withdraw from the ICC is unconstitutional.

At a minimum, the ruling will delay South Africa's withdrawal from the ICC, which had been scheduled to take effect in October.

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.

But if the government is eventually forced to go to Parliament for approval, it can expect a bruising battle.

In 2016, Burundi, South Africa and The Gambia, expressed their intentions to withdraw from the court. It criticized the government for trying to "steamroll" over the constitution.

Late a year ago, Burundi and the Gambia also announced plans to leave the court, leading to concerns that other states would follow. It stated that "South Africa does not want to be lumped together with pariah states who have no respect for human rights and who do not subscribe to accountability for those guilty of the most heinous human rights violations".

South Africa said it was quitting the ICC because membership conflicted with diplomatic immunity laws.

It's an important ruling for worldwide justice both in South Africa and beyond.

  • Stacy Houston