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New setback for African rebellion against international court

This file photo taken on June 14, 2015 shows Sudanese President Omar al-Bashir (C), Congo's president Denis Sasso-Nguesso (R) and Prime Minister of the Sahrawi Arab Democratic Republic Abdelkader Taleb Oumar (L) posing during a photo call at the 25th African Union Summit in Sandton South Africa, on June 14, 2015.

GIANLUIGI GUERCIA/AFP/Getty Images

A growing rebellion against the International Criminal Court has been hit with a major setback as a South African court ruled that the government's attempt to quit the war-crimes court was "unconstitutional and invalid."

The South African government had violated the constitution by announcing its withdrawal from the ICC last year without seeking approval from parliament, the South African court said.

The government's sudden attempt to abandon the ICC without consulting parliament was irrational and inexplicably hasty, the High Court said in its ruling.

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Read more: African Union's mass withdrawal strategy mounts pressure on ICC

Related: African Union vote boosts Canada's bid to save the ICC

It was the second blow in less than two weeks to the emerging mutiny against the international court. Last year, three African countries announced that they would quit the court, and this year the African Union debated a plan for a "mass withdrawal strategy" because of allegations that the ICC is biased against Africa. But two of the three withdrawals have now been halted.

Canada was a key leader in helping create the ICC in the late 1990s, and former foreign minister Stéphane Dion campaigned to save the ICC in a tour of African countries last year.

Of the three African countries that announced their withdrawal from the ICC last year, only Burundi is still on track to leave the court as scheduled this year, although South Africa's withdrawal bid could eventually be revived after a parliamentary vote.

Gambia's newly elected government told the United Nations on Feb. 10 that it was reversing a decision by its defeated dictator, Yahya Jammeh, who had announced last October that his country would quit the international court.

"As a new government that has committed itself to the promotion of human rights … we reaffirm Gambia's commitment to the principles enshrined in the Rome Statute of the International Criminal Court," the new government of President Adama Barrow said in a statement this month.

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South Africa, however, remains the heavyweight in the African mutiny against the ICC. As one of the original supporters of the court, its announcement of withdrawal last October was a major blow to the future of the Netherlands-based court that prosecutes war crimes and crimes against humanity.

In its withdrawal notice, South Africa complained that its legal obligations to the international court were sometimes "incompatible" with the "peaceful resolution of conflicts."

South Africa has portrayed itself as a neutral mediator in African conflicts, and it has refused to arrest Sudan President Omar al-Bashir, despite the ICC's arrest warrant against him for genocide and war crimes in Darfur. But the courts in South Africa have ruled that the government acted unlawfully by allowing Mr. Bashir to attend a summit in Johannesburg and ignoring its obligation to arrest him.

In their ruling on Wednesday, three judges of the High Court in Pretoria ordered the government to revoke its withdrawal from the international court. They criticized the "unexplained haste" and "irrationality" of the government's attempt to withdraw abruptly from the international court without consulting parliament. The government has "not provided any explanation for this seemingly urgent need to withdraw from the Rome Statute," the ruling said.

It also criticized the government for its demand that parliament must vote on the issue before October of this year, when the withdrawal would take effect. Parliament must be not "dictated to" by the government "to rush through the repeal bill" to meet artificial deadlines, the court said. "It must be free to carry out its functions without interference."

The government said it will study the ruling and decide whether to appeal.

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At a minimum, the ruling will delay South Africa's withdrawal from the ICC. Unless it wins an appeal, the government will have to wait for parliamentary approval, and the exhaustion of all legal appeals by opponents, and then submit its withdrawal notice. Under the rules of the court's treaty, a withdrawal does not take effect until a year after a notice has been submitted to the United Nations.

The ruling African National Congress holds a majority in parliament and can force through its decision if it wants. But the ANC will elect a new leader in December, which could lead to changes in policies on issues such as the ICC withdrawal.

South Africa's parliament did not begin considering the ICC issue until last month – three months after the government announced its withdrawal. Just hours before the court ruling on Wednesday, parliament finally began asking for public submissions on the ICC issue.

The opposition Democratic Alliance, which launched the court challenge of the government's withdrawal from the ICC, said the ruling was "a victory for the rule of law." It criticized the government for trying to "steamroll" over the constitution.

"South Africa is currently out of step with other progressive and democratic African countries who have reaffirmed their commitment to the ICC," the DA said in a statement. It said the country should not join "pariah states who have no respect for human rights."

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About the Author
Africa Bureau Chief

Geoffrey York is The Globe and Mail's Africa correspondent.He has been a foreign correspondent for the newspaper since 1994, including seven years as the Moscow Bureau Chief and seven years as the Beijing Bureau Chief.He is a veteran war correspondent who has covered war zones since 1992 in places such as Somalia, Sudan, Chechnya, Iraq and Afghanistan. More

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