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Justice Richard Goldstone: South Africa’s Attempt to Withdraw from Int’l Criminal Court is Unconstitutional

In a shocking surprise to many in the international community, South Africa has announced that is has formally begun the process of withdrawing from the International Criminal Court. Having now submitted an “Instrument of Withdrawal” (full text) to the UN Secretary-General, South Africa became the first nation to take this extraordinary step. Justice Richard Goldstone is one of the most significant figures in the field of international justice and in South Africa. Among other positions, he was Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda and Justice of the the Constitutional Court of South Africa. I asked him to provide his views for Just Security. His comments follow:

South Africa’s notice of withdrawal from the Rome Statute is unfortunate on legal, moral and political grounds. To begin with the legal: the ratification of the Rome Statute in 2002 was followed by the Implementation of the Rome Statute of the International Criminal Court Act, No. 27 of 2002. That Statute, in essence, domesticates the provisions of the Rome Statute, including the core crimes defined in the Statute. It contains far-reaching provisions that oblige relevant departments of state to cooperate with the ICC. The purported withdrawal from the Rome Statute by executive act is quite inconsistent with the Statute and on that ground unconstitutional and unlawful. It is also demeaning of Parliament and robs the people of South Africa of the opportunity to debate this move.

Turning to the moral and political aspects: the Preamble to the 2002 legislation contains the following paragraph:

“the Republic of South Africa is committed to bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court, created by and functioning in terms of the said Statute.”

South Africa, together with other so-called “like-minded nations” played an important role in encouraging other Southern African states to rectify the Rome Statute. President Nelson Mandela, together with his administration, was a firm supporter of the ICC and more generally on furthering the mechanisms of international justice. This is an unfortunate development that detracts from their inspiring legacy. It will also encourage those States, and specially in Africa, whose leaders have good reason to fear the International Criminal Court, to follow this most unfortunate example.

It is my hope that our courts will yet again have to rescue the executive from acting in conflict with our Constitution – a most unfortunate development.

 

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).