A South African judge has blocked the country’s planned withdrawal from the international criminal court (ICC), saying the move is unconstitutional without prior parliamentary approval.



Sitting in the high court in Pretoria, deputy judge president Phineas Mojapelo said on Wednesday that any move to pull out of the ICC must be “on the basis of the expressed authority of the constitution”. He ordered Jacob Zuma, the South African president, to retract the country’s “invalid” notification to the court of withdrawal.

Michael Masutha, the justice minister, said the government would decide how to proceed, including a possible appeal, after reading the full judgment but indicated it still intended to press ahead with the withdrawal. He described the judgment as a policy decision.

Pretoria said last year it planned to leave the ICC after receiving criticism for ignoring the court’s order to arrest the visiting Sudanese president, Omar Hassan al-Bashir, who is accused of genocide and war crimes, in June 2015.

Under the Rome statute, the founding treaty of the ICC, countries have a legal obligation to arrest anyone sought by the tribunal. Ministers had argued that the ICC’s obligations were inconsistent with domestic laws giving sitting leaders diplomatic immunity.

The clash over Bashir was the latest in a series of disputes rooted in deep suspicion of the institution among many leaders in Africa.

Opened in July 2002, the court has repeatedly faced criticism by some on the continent who regard it as racist or imperialist. Nine out of the 10 cases being investigated by the ICC involve alleged crimes in Africa.

Last month, African leaders adopted a strategy calling for a collective withdrawal from the court. The non-binding decision came behind closed doors near the end of an African Union summit.

Late last year, Burundi and the Gambia also announced plans to leave the court, leading to concerns that other states would follow.

In a boost for the ICC, however, Adama Barrow, the new democratically elected president of the Gambia, recently reversed that decision – made by Yahya Jammeh, the west African state’s former authoritarian leader.

Defenders of the ICC, the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes, say the majority of its investigations have followed an explicit request or grant of jurisdiction from the government in the country where the crimes were committed, as in the case of Uganda.

Wednesday’s decision in Pretoria high court was largely expected as Mojapelo had already told government lawyers during a previous hearing that he was concerned that officials had exceeded their constitutional powers.

The application to stop the withdrawal was brought by one of South Africa’s two main opposition parties – the centre-right Democratic Alliance (DA).

“We have seen how our country’s approach to foreign policy under [president] Jacob Zuma has been at loggerheads with the human rights-based foreign policy spearheaded by the late president Nelson Mandela. By irrationally withdrawing from the ICC, South Africa is out of touch with other progressive and democratic nations on the continent,” James Selfe, MP and chairman of the DA’s federal executive, told reporters earlier this week.

The government will decide whether to appeal, officials said.