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South African Court Tells Government It Can’t Withdraw From the ICC

In yet another blow to South African President Jacob Zuma’s government.

By Robbie Gramer, a diplomacy and national security reporter at Foreign Policy.

From corruption scandals to semi-regular votes of no confidence, South African President Jacob Zuma hasn’t exactly enjoyed a smooth run in office. But on Wednesday, the country’s high court struck yet another blow to the president when it rejected the government’s bid to withdraw from the International Criminal Court.

High court judge Phineas Mojapelo urged Zuma’s government to tear up the withdrawal notice on the grounds it was “unconstitutional and invalid” because it didn’t seek parliamentary approval first.

South Africa’s largest opposition party, the Democratic Alliance, praised the high court’s decision. “This is a victory for the rule of law and indeed for our country’s human rights-based foreign policy which Zuma and his cronies have tried so hard to depart from,” Democratic Alliance spokesperson James Self said. “Clearly Zuma and his ANC have absolutely no respect for the constitution,” he added.

The victory may be temporary. Zuma’s Justice Minister Michael Masutha said he would forge ahead with its decision to leave the ICC, as the court only struck the decision down based on procedural rules. Though, the government hasn’t yet announced whether it will appeal the decision, try to run the withdrawal through parliament, or drop the matter entirely to save face.

For many South Africans, the controversy is more about Zuma taking unilateral action without parliamentary approval than the decision to withdraw from the ICC itself, says Chloë McGrath, an Africa expert at the Atlantic Council, a think tank in Washington.

Pretoria first formally notified the ICC it wanted to withdraw in October, 2016. Zuma’s government had a falling out with the ICC over South Africa’s refusal to arrest Sudanese President Omar al-Bashir during an African Union summit in 2015. The ICC issued a warrant for Bashir on counts of crimes against humanity, murder, torture, and rape, and other crimes over his alleged involvement in the Darfur genocide beginning in 2004.

The ICC, founded in 2002, has 124 member states. It’s been criticized for having anti-African bias for prosecuting an overly high number of African criminals. (Former Gambian leader Yahya Jammeh quipped it should be called the “International Caucasian Court.”)

Human rights activists feared if South Africa, one of Africa’s most politically and economically powerful countries, left the legal body, other countries would follow suit. Burundi announced its intention to leave the ICC last year. So did Gambia initially, though its newly elected president in December reversed that order.

Zuma could likely get enough parliamentary votes to greenlight an ICC exit if his ruling African National Congress party stays unified on the issue, McGrath said. But the ANC, which has ruled South Africa since 1994 after the end of the apartheid era, has shown signs of cracking under Zuma’s scandal-plagued leadership.

There was his huge corruption scandal over “state capture” last year, his bizarre presidential address before parliament that devolved into a brawl, three parliamentary votes of no confidence he narrowly escaped, and the other 783 corruption charges he faces.

With widening political fissures and laggard poll numbers, the government may have more important things to worry about than its 2016 pledge to leave the ICC. “At the time, it was putting an embarrassing political fire out,” McGrath said. “But now that fire’s burned out.”

Photo credit: MUJAHID SAFODIEN/AFP/Getty Images

Robbie Gramer is a diplomacy and national security reporter at Foreign Policy. Twitter: @RobbieGramer