All roads lead to the Rome Statute? April 2017

By MATEENAH HUNTER, Published in International

In February 2017 the High Court of South Africa Gauteng Division, Pretoria, in the matter of Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) [2017] ZAGPPHC 53, handed down an order declaring South Africa's notice of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) unconstitutional and invalid.

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The notice of withdrawal had been signed and delivered to the United Nations (UN) Secretary General by the Minister of International Relations and Cooperation in October 2016, without having obtained parliamentary approval. Whether in the coming months, following a constitutional democratic process through parliament will result in South Africa still withdrawing from the Rome Statute remains to be seen.

South Africa and The Rome Statute

The International Criminal Court (ICC) was established in 1998 by the conclusion of the Rome Statute. South Africa was one of the first signatories to the Statute, and was subsequently joined by 124 other countries. The Rome Statue was ratified by the South African parliament in 2000, and implemented in 2002, under the Implementation of the Rome Statute of the International Court Act, 2002.

The Al Bashir incident

Sudanese President, Omar al-Bashir, was the subject of arrest warrants issued by the ICC in 2009 and 2010 in respect of charges, including crimes against humanity, extermination, torture, rape and genocide, committed between 2003 and 2008 in Darfur. These warrants placed significant strictures on Al-Bashir's movements, as the terms of the Rome Statute required member states to arrest Al-Bashir should he enter their territory.

In 2015, despite the South African government's statutory obligations and an order of the high court ordering compliance with those obligations, it failed to arrest Al-Bashir when he attended an African Union summit in South Africa. This failure, which was ultimately found to be in contravention of the Act and of the Constitution in Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others [2016] ZASCA 17 and Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others [2015] ZAGPPHC.

This was followed by a government decision to withdraw from the Rome Statute. This decision was in turn followed by a notice of withdrawal, signed and delivered to the UN Secretary General in October 2016. Parliament was later notified of this action, and informed by the Minister of Justice that he intended to table a bill repealing the Act.

Constitutional challenge

Shortly after government's announcement of withdrawal, the Democratic Alliance (DA) launched a court application challenging the signing and delivery of the notice. The high court application was heard on 5 and 6 November 2016. The DA's application was filed against the Ministers of International Relations and Cooperation, and Justice and Correctional Services, the President, the Speaker of the National Assembly and the Chair of the National Council of Provinces. In addition, the DA joined a number of supporting respondents – South African Litigation Centre, Professors John Dugard and Guenael Mettraux, Amnesty International Limited, Peace and Justice Initiative and the Helen Suzman Foundation – and the Council for the Advancement of the South African Constitution was joined as an intervening party.

The Ministers and the President (government) opposed the application while the Speaker and the Chair chose to abide.

The crux of the DA's argument lay in the claim that because s231(2) of the Constitution necessitates the approval of parliament, it is implied that parliament must be the organ of state that decides whether an international agreement ceases to bind the country. In terms of the DA's argument, the notice of withdrawal would only be lawful if parliament had approved the withdrawal and repealed the (ratifying) Act.

Government argued that prior parliamentary approval was not a requirement of s231 because there was no express provision requiring it. This argument was supplemented by several other reasons, which included the claim that treaty-making (and thus treaty withdrawal) is the exclusive competency of the executive, and that the implicitness of the prior approval in s231, as argued by the DA, should not be lightly implied. Even so, government argued, the question of parliamentary approval does not arise as such approval was in the process of being obtained.

High Court analysis

The court's analysis of the arguments is, for the most part, clear and well-reasoned, focusing on rationality and procedural rationality, and concluding that "South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act" (at 53).

Following this, however, its analysis takes an odd turn, addressing the absence of a termination clause in s231 or any other legislation.

The court started by agreeing that the power to conduct international relations and to conclude treaties lies with the executive. It qualified this point by adding that the executive's powers in terms of s231(1) were fettered by s231(2) and (4) which required that any international agreement entered into by the executive must be approved by parliament in order to make it binding on South Africa. This process of ratification must be completed by parliament enacting national legislation to give effect, domestically, to the rights and obligations set out in the international agreement.

The court held that the signing and delivery of the notice was not the equivalent of negotiating and signing a treaty. The negotiation and signing of a treaty has no direct legal effect on South Africa, whereas the notice of withdrawal constitutes a binding and unconditional decision of withdrawal from the Rome Statute. The court further found that the approval of an international agreement in terms of s231(2) creates a contract between the people of South Africa, through their elected representatives in parliament, which gives rise to the rights and obligations expressed in the international agreement. The executive cannot, without first seeking the approval of the people of South Africa, terminate those rights and obligations. To do so amounted to a violation of the separation of powers doctrine. Referencing Masethla (Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa 2008 (5) SA 31 (CC)), the court added that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well.

Thus, it held that on a textual reading of s231(2), the executive may withdraw from the Rome Statute but only on the approval of parliament, and only after repeal of the Act. With reference to Simelane (Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC)), the court added that government's actions in signing and delivering the notice were procedurally irrational, as the steps taken were not rationally related to the end sought to be achieved. This end, as set out in an explanatory statement attached to the notice, was withdrawal from the Rome Statute, so that government would be free to pursue its peacemaker role on the continent, without the obligation to arrest indicted heads of state.

However, the enactment of the Implementation Act created peremptory obligations which bind South Africa on its own terms, independent of the Rome Statute. What government's actions would achieve is the termination of international obligations but not of its domestic obligations to arrest indicted heads of state.

The signing and delivery of the notice of withdrawal prior to the approval of parliament, and the repeal of the Implementation Act was held to be procedurally irrational, unconstitutional and invalid and, as the court reiterated "'[a]n invalid act, being a nullity, cannot be ratified, 'validated' or amended" (Administrative Law in South Africa 2nd ed (2012) at 547. See also S v Cebekulu 1963 (1) SA 482 (T)) by a post parliamentary approval and repeal of the Act).

Instead of ending the analysis here, the court, at paragraphs 54 to 56, goes on a frolic of its own, interpreting the omission of a termination clause in s231 in a manner that (unintentionally, I assume) contradicts its conclusion on procedural irrationality. In essence, the court reasons that because the executive can exercise only those powers, and perform only those functions conferred upon it by the Constitution, or by other legislation (Mansingh v General Council of the Bar and Others 2014 (2) SA 26 (CC); President of RSA v SARFU 2000(1) SA 1 (CC) and Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC)), the absence, of a provision authorising the executive to terminate international agreements confirms that such power does not exist "unless and until parliament legislates for it" (At 54). This changes the basis of the illegality from procedural irrationality to ultra-vires. What this implies is that if there were any piece of legislation (for example the Act), which empowered the executive to terminate international agreements, the executive would legally be able to do so without the approval of parliament, and without repealing any ratifying act. This interpretation is certainly contrary to the checks-and-balances procedure envisaged in s231 of the Constitution.

The Court concludes correctly that the signing and delivery of the notice, without the prior approval of parliament and the repeal of the Act, was procedurally irrational, unconstitutional and invalid, and that a retrospective approval and repeal will not remedy an invalid act. However, it also creates unnecessary confusion of the executive's powers and the purpose of the "deliberate constitutional scheme" (at 55) that is s231. In remedying the invalid action, the court issued a declaration of invalidity with retrospective effect and ordered government to revoke the notice. Government obliged, and on 8 March, the notice was revoked.

Now that the decision of withdrawal is in the hands of parliament, who have to openly deliberate and publicly consult, it remains to be seen whether following a constitutional democratic process may lead to a different result.

Hunter is an Associate, Public Law practice, Webber Wentzel. The article was reviewed by Mike Evans and Moray Hathorn Partners at Webber Wentzel.

Webber Wentzel represented both the Southern African Litigation Centre and the Helen Suzman Foundation, who were respectively applicant and amicus in Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others [2015] ZAGPPHC.