South Africa's opposition DA launches legal bid to block ICC withdrawal

South Africa’s main opposition party, Democratic Alliance (DA) on Monday started a legal process to block the government’s plans to withdraw from the International Criminal Court (ICC).

The South African government announced in October that it had notified the United Nations of its withdrawal from the Rome Statute stating among others the court’s bias towards Africa.

The decision followed a dispute last year between the state and the Hague-based court over South Africa’s failure to arrest Sudanese leader Omar al-Bashir, who is wanted by the ICC for war crimes, when he attended an AU summit in the southern African nation.

Advancing its argument in court on Monday, the DA’s legal team said withdrawing from the ICC would give human rights abusers a field day in instances where the South African legal system was unwilling to deal with them.

“The question to ask is, has government by its conduct taken away a layer of protection for people’s human rights? And in our respectful submission, that’s exactly what it’s done,” said Steven Budlender, lawyer for the DA.

“What it means is that if our judicial and prosecutorial system proves unwilling or unable to act, then our citizens will no longer be able to ensure that the perpetrators of human rights abuses are prosecuted by the ICC. And that is a fundamentally important issue,” he argued.

Budlender also told the court: “It is desirable that if those rights are breached and if prosecutions occur, they must first occur here. That is what the Rome Statute involves. But if it is the case that South Africa fails in its duties, then it is imperative that people have the ability to ensure that people who commit gross human rights abuses are prosecuted via the ICC. And the government’s decision to withdraw has taken that layer of protection away.”

The Democratic Alliance is “challenging the rationality and constitutionality of the decision by the South African government to withdraw from the International Criminal Court,” the DA’s Federal Council chairperson James Selfe told AFP.

“We believe that that decision was taken unprocedurally, that our Constitution provides a procedure that was not followed, and for those reasons we believe that this court should strike down that decision as being irrational and unconstitutional.”

Ultimately, the opposition party want the decision “referred back to the South African parliament, so that we can take a studied and logical decision, and we would like the court to direct that to withdraw from the International Criminal Court at this stage, while there is no other regime in place, would itself be irrational,” Selfe adds.

The withdrawal, expected to take effect next October, will make South Africa the first country to pull out from the International Criminal Court.