On October 18, 2016, Pierre Nkurunziza, the President of Burundi, signed a decree calling for Burundi’s withdrawal from the International Criminal Court (ICC). Just three days later on October 21, the Foreign Minister of the Republic of South Africa followed suit and announced that South Africa would also be withdrawing from the ICC. One of the primary concerns regarding these decisions is the signal they may send to other African states in the region. However, beyond the concern of en masse withdrawal by African countries from the ICC, in the case of South Africa, the withdrawal also has also fostered a renewed examination of the constitutionality of unilateral executive action.
The ICC was formed via international agreement with the Rome Statute in 1998. Before the recent withdrawals, 124 States had ratified the statute. The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. Of the 124 nations that have ratified the Rome Statute and are parties to the ICC, thirty-four are African states, the largest representation from any continent. South Africa’s decision to withdraw stems from the ICC’s refusal to recognize immunity for travelling heads of state. As for Burundi, the country’s leadership has ostensibly cited the unfair treatment of African states by the West under the ICC regime as the cause for its withdrawal. However, some analysts have suggested that this reason is merely a cover for avoiding the pressures of ICC investigations that these leaders are facing. Regardless of the individual reasons for the withdrawals, the moves carry implications that stretch beyond maneuvering for political longevity.
Generally, there is a fear that South Africa’s decision to withdraw from the Rome Statute will usher in en masse withdrawal by the rest of the continent. Former South African President Nelson Mandela spearheaded efforts to support ratification of the ICC in Africa as part of his campaign against human rights abuses. Additionally, South Africa “is supposed to be a beacon of liberal democracy on the continent.” But now, South Africa, the state that had previously championed the ICC on the continent, has, in effect, signaled to its neighbors that narrow domestic leadership designs will now carry the day over the legitimacy of the ICC. At the same time some states of note, like the U.S. and Israel, and many other African states, have never ratified the Rome Statute and thus have never been parties to the ICC. Therefore, the extent to which South Africa’s withdrawal signals a great swipe at the legitimacy of the ICC remains to be seen. After Russia withdrew from the ICC on November 16 the day after the Court classified Russia’s annexation of Crimea as an annexation, the signalling effect can only be amplified.
Critics immediately criticized President Jacob Zuma’s decision as “defeatist, naïve and reactionary,” and now the procedure of the withdrawal decision itself is also under scrutiny. Critics claim that the executive branch’s unilateral decision to withdraw from the ICC violates the principle of separation of powers embodied in the South African Constitution. Various civil and political groups have mobilized in effort to challenge South Africa’s withdrawal. The Democratic Alliance, the primary opposition party to Zuma’s ruling African National Congress party, has vowed to file a suit to challenge the decision to withdraw. The Council for the Advancement of the South African Constitution (CASAC) has already filed a challenge with the country’s Constitutional Court, arguing that only Parliament, not the President, has the constitutional authority to withdraw from the Rome Statute.
Section 231 of the Constitution assigns powers relating to international agreements amongst the branches of government. §231(2) states that an international agreement is only binding “after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless” the agreement qualifies as a §232(3) “international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession.” The Constitution thus provides for a carve-out for certain types of agreements, for which the executive has the authority to make legally binding without legislative approval.
However, the Constitution does not contain a corollary provision for the assignation of power of rescission or withdrawal from an international agreement. But it could be logically argued that if the president can unilaterally enter into a binding §232(3) international agreement without legislative approval, the president likewise would have the authority to do the converse—i.e. unilaterally withdraw—from said agreement. The same would be true then for withdrawing from an international agreement that previously required legislative approval to become the law of the land. On the other hand, entering and withdrawing from international agreements are very often substantively different. For example, in response to CASAC’s suit, the government might argue that even if the Rome Statute required legislative approval for ratification, since the executive is the branch that facilitated the agreement, it has the power to terminate as well. Nevertheless, CASAC argues in its brief that since the Constitution does not specifically delegate international agreement withdrawal powers unto the President, in the absence of any empowering provision, the President cannot exercise this authority. As such, CASAC would have the Constitutional Court hold that even if the President had the authority to ratify the Rome Statute unilaterally, the President could not withdraw unilaterally since such authority is not enumerated in the Constitution. Yet this argument would then leave a troubling vacuum in which neither the legislature nor the executive branch of government could withdraw from an international agreement since this power is not specifically delegated to any branch in the Constitution.
The defining question before the Constitutional Court, then, should be whether the Rome Statute qualifies as one of the §232(3) exempted international agreements that the executive can approve without obtaining prior approval from the two houses of the legislature. Evidence suggests that the answer is no. The strongest evidence that the Rome Statute is not a §232(3) carve-out is that both houses of South African Parliament approved Rome Statute by enacting the Implementation of the Rome Statute of the International Criminal Court Act of 2002. It was only then that the Rome Statute became domestically enforceable and South Africa became a party to the ICC. Since the ratification of the Rome Statute was not done by the process for a §232(3) international agreement and did require legislative approval before going into force, withdrawing from it conceivably would also require legislative approval. Further, nothing about the Rome Statute suggests that it is a mere international agreement of technical or administrative nature prescribed in §232(3). In fact, the Rome Statute gives the ICC the authority to exercise jurisdiction over any party state.
South Africa’s domestic law appears to place a major constitutional hurdle in the face of the executive branch’s ICC withdrawal decision. Commencing a withdrawal from the ICC without legislative approval may breach the checks and balances system built into the South African Constitution. This action may also cross the line in the separation of powers between the executive and legislature in the realm of international law through interpretation of §232. The above argument alone may help either the Democratic Alliance or the CASAC carry the day in their upcoming Constitutional Court battles.
Shane Safer is a second-year student at Columbia Law School and a staff editor on the Columbia Journal of Transnational Law. He graduated with a B.A. in political science from the University of Pennsylvania, where he conducted research on democratization in Sub-Saharan Africa.