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South Africa's ruling party reiterates intention to withdraw from the ICC

ANC leader and South African President Jacob Zuma

This past week the African National Congress ("ANC") announced that it is still seeking to withdraw South Africa from membership of the ICC. The ongoing friction between South Africa and the ICC follows South Africa's failure to arrest President Omar Al-Bashir of Sudan when he attended the AU Summit in South Africa in June 2015. The ICC had issued an arrest warrant for Al-Bashir, who is implicated war crimes, crimes against humanity and genocide committed in the Darfur region of Sudan, in 2010.

Both the ICC Pre-Trial Chamber and South Africa's national courts have ruled that South Africa had breached its legal obligations by failing to arrest Al-Bashir. South Africa subsequently gave notice of its intention to withdraw from the ICC. This initial notice of withdrawal was later again withdrawn. The latter withdrawal gave proponents of the ICC some cause for hope. However, such optimism does not seem warranted at this stage. The withdrawal of the notice of withdrawal was not politically motivated, but related to an earlier ruling by one of the country's high courts that the notice of withdrawal was "unconstitutional and invalid" on procedural grounds.

In April 2017, South Africa appeared before the ICC to argue it's case for the non-arrest of President Al-Bashir. ICC prosecutor's argued that, as a member of the Court, South Africa had an obligation to cooperate with the Court by arresting and surrendering President Al-Bashir. South Africa have argued that President Al-Bashir could not be arrested as he enjoyed immunity from arrest under international law as the incumbent head of state of a non-member state of the ICC. The ICC's decision - expected 6 July 2017 - should make interesting reading.

All in all, it is clear at this stage that the ANC intends to push ahead with it's plan to withdraw. If the ICC does find South Africa in breach of its obligations (which seems likely in light of previous decisions concerning non-cooperation), it is likely to add more fuel to the fire. If the ANC does push ahead, it is likely that the new withdrawal decision will again be opposed in court as the Constitution and not parliament is the supreme source of law in South Africa. Such a legal challenge may be based on substantive grounds relating to human rights, which are strongly protected in the South African Constitution. Considering the strong link between ICL and human rights (often described as "two sides of the same coin"), it may be hard for the South African government to justify it's decision to withdraw over the issue of immunity for sitting heads of state (widely considered to be an temporary procedural obstacle to prosecution) when it has a clear constitutional obligation to "respect, protect, promote and fulfill the rights in the Bill of Rights".

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