South Africa and the ICC, or: Whose Rights Does the Constitution Protect?

When the South African government announced that it would withdraw from the International Criminal Court, a great number of commenters, including prominent jurists like Richard Goldstone, academics, political commentators and local and international human rights organizations expressed shock and disappointment. Legal commentators have also weighed in, questioning the legality of withdrawing from the ICC (here) and a legal challenge on several terms seems inevitable. Here, I want to consider the possibility of challenging the withdrawal on the basis of the Bill of Rights. In the legal commentary this possibility has taken a back seat to challenges based on the requirement to have the matter dealt with by Parliament, but failing that a legal challenge to the withdrawal would more than likely also include a challenge also in terms of the rights in the Bill of Rights.

This is where the case raises an aspect that comes up rarely in constitutional litigation. A significant portion of those affected by the withdrawal are neither South African nor within the territory of South Africa, removing the usual nexuses that exist for falling within the protection of the Constitution. The purpose of international criminal law is to deliver justice to victims of international crimes where states themselves are unable to do so. In order to do this, the international criminal system relies on the participating states to create a system that can complement domestic systems where these fall short.

The recent al-Bashir saga, also taking place in South Africa and the event that seems to have offset the withdrawal, offers an illustration of this. The story is well known. The Sudanese president Omar al-Bashir had been indicted by the ICC prosecutor for alleged genocide, war crimes and crimes against humanity in Darfur since 2003 ...

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