South Africa's future in the ICC is still uncertain

South Africa has been summoned to appear before the International Criminal Court on April 7 to answer for its failure to arrest President Omar al-Bashir of Sudan during his visit to the country in June 2015.

This announcement came only days after South Africa informed the United Nations of its decision to revoke its withdrawal from the court.

In October 2016, South Africa announced its decision to withdraw from the ICC. But earlier this year, South Africa’s High Court declared the decision, which was taken without parliamentary approval, as “unconstitutional and invalid” and ordered the government to rescind the notice it sent to the UN.

On March 7, the South African government adhered to the court’s decision and wrote a letter to the UN secretary-general officially rescinding its notice of withdrawal from the court.

Understandably, this has brought a sigh of relief to the ICC and its supporters, who feared of an African exodus from the Hague-based court, following a spate of withdrawals in October 2016 involving two other countries: Burundi and The Gambia.

Not surprisingly, The Gambia under its new President Adama Barrow also overturned his predecessor’s decision to withdraw from the ICC and expressed his government’s support for the court.

At the moment, only Burundi’s withdrawal remains effective and there is no indication that it faces a similar prospect of reversal. While the fear of African exodus from the ICC is now partially eased with the reversals of withdrawals from The Gambia and South Africa, the issue is not conclusively resolved.

‘Premature celebrations’

Many, particularly those supporting the ICC, welcomed the decision of South Africa’s High Court to revoke the notice of withdrawal and the government’s adherence to the decision.

Some even saw it as a manifestation of the end of the so-called “African exodus” from the court.

The celebration may, however, be premature. The South African High Court did not challenge the legality or constitutionality of withdrawal from the ICC per se.

The issues it addressed were whether parliamentary approval was a prerequisite for issuing a notice of withdrawal and whether a law repealing the act implementing the Rome Statute, the treaty that established the ICC, should be adopted before the withdrawal.

There is no indication that President Jacob Zuma‘s government has abandoned the plan for withdrawal.

South Africa’s reversal of its notice of withdrawal from the ICC does not thus mean that the matter is conclusively settled. It merely expressed acknowledgement that the particular process followed was not legally acceptable.

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The Implementation of the Rome Statute of the International Criminal Court Repeal Bill (Repeal Bill) is currently before parliament (PDF). The High Court which declared the notice of withdrawal unconstitutional found that the process for tabling this bill is “legitimately and properly before parliament”.

So, the battle over the withdrawal is not over, it has only shifted to the parliament. And the campaign against the bill has now started to include contributions from South Africa’s heavyweight legal minds (PDF).

Ongoing concerns

In its judgement on the country’s withdrawal from the ICC, the South African High Court did not address the concerns that President Zuma’s government raised about the court.

The instrument of withdrawal deposited with the UN secretary-general pointed out that South Africa found its role in, and obligation for, promoting a peaceful resolution of conflicts to be incompatible with ICC’s interpretation of the Rome Statute.

South Africa is not alone on this. There is strong view in Africa, which underwrites much of the opposition to the ICC, that pursuing prosecutorial justice in ongoing armed conflicts impedes peace efforts by hardening the position of key protagonists.

Related to this is also the policy debate on whether to implement dogmatic legal positions in the face of impending violence or to facilitate negotiated peace deals in order to halt ongoing carnage and killings arising from the continuation of armed conflicts.

The instrument of withdrawal also indicated South Africa’s decision to give effect to the rule of customary international law in the apparent divergent legal position between South Africa’s Rome Statute of the International Criminal Court Act, 2002 and the rule of customary international law recognising immunity of heads of state.

‘Legally contested’

It is to be recalled that South Africa’s ICC controversy started in June 2015 when it allowed Bashir, who has an ICC arrest warrant in his name, to attend the African Union summit held in Johannesburg.

This gave rise to both political/security and legal dilemmas.

While South Africa’s failure to execute ICC’s arrest warrant attracted criticism, it was not clear if South Africa was ready to assume responsibility for what was to happen to Sudan if it executed the arrest warrant and arrested Bashir.

Also in legal terms, while non-execution of the arrest warrant was contrary to South Africa’s obligations under the Rome Statute, it was believed that the treaty did not affect the customary international law rule on immunity of sitting heads of state in countries not parties to it.

This was the case with South Sudan as well, and/or its effect at least in respect to such countries remains legally contested and hence unsettled.

The South African government’s position on these two substantive issues remains unchanged. These issues are now to be a subject of parliamentary debate as South Africa’s parliament considers the Repeal Bill.

The ruling party, African National Congress, enjoys an overwhelming majority in the parliament and hence has the necessary numbers to pass the bill.

If the bill passes and South Africa withdraws from the ICC, it would be a major loss for the court. This is not only because South Africa is a major African country, but also because its withdrawal would strengthen other ICC state parties’ cases for exiting the court.

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This does not, however, has to be the outcome.

Even though the decision to withdraw from the ICC is now a matter of South Africa’s parliamentary process, it can still be prevented, if the court takes action.

Indeed, the planned appearance of South Africa before the ICC in April 2017 offers an opportunity for finding a solution within the ICC process for the two aforementioned issues that motivate the country to leave the court; such a solution may help to remove the steam from the campaign for withdrawal and bury the repeal bill.

Solomon Ayele Dersso is a senior legal scholar and an analyst on Africa and African Union affairs.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.