ANALYSIS
In Wednesday's court ruling that struck down the government's notice to withdraw from the International Criminal Court, the Deputy Judge President Phineas Mojapelo said: "It's expected that the executive go back to Parliament. We have rights, we have obligations, and we have Parliament."
In other words, that South Africa will now reverse its decision to withdraw from the ICC is not a foregone conclusion. It merely means that the chosen route has been closed. Another one will be found. In this case, the African National Congress will in all likelihood use its numerical majority in the national assembly to ram through the notice, and to repeal the Implementation of the Rome Statute of the International Criminal Court Act of 2002.
The case was brought by the opposition party Democratic Alliance.
The case in the Gauteng Division of the High Court has merely delayed the government's action, perhaps even by years.
According to a summary [PDF] posted in the Government Gazette last year, the repeals will be of The Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002), section 13 of the South African Red Cross Society and Legal Protection of Certain Emblems Act, 2007, and section 20 of the Implementation of the Geneva Conventions Act, 2012.
The ANC government has argued that the reasons are because these legal clauses are impediments to its aims of peaceful conflict resolutions. Specifically:
The Republic of South Africa, in exercising its international relations with heads of state of foreign countries, particularly heads of state of foreign countries in which serious conflicts occur or have occurred, is hindered by the Implementation of the Rome Statute of the International Criminal Court Act, 2002, which together with the Rome Statute of the International Criminal Court compel South Africa to arrest heads of state of foreign countries wanted by the International Criminal Court for the crime of genocide, crimes against humanity and war crimes and to surrender such persons to the International Criminal Court, even under circumstances where the Republic of South Africa is actively involved in promoting peace, stability and dialogue in those countries.
The Republic of South Africa wishes to give effect to the rule of international customary law which recognises the diplomatic immunity of heads of state in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, but particularly on the African continent.
In other words, this particular case poses no major challenge to the government's plans.
The DA's spokesperson of international relations and co-operation Stevens Mokgalapa said to The Huffington Post SA that the government must now go through the proper channels, including wide public consultation, before implementing the withdrawal.
But he acknowledged that for the ANC, this is simply a number's game in Parliament.
"The important thing is that the government jumped the gun on the issue. The parliamentary process is another issue altogether," he said.
"What we hope is that this [court ruling] will force the government to sit down and take stock. They should consider what has happened at the African Union. The motion to withdraw from the ICC was not universally accepted."
He pointed out that Gambia, which under Yahya Jammeh had announced its own intention to withdraw, has since under the governance of President Adama Barrow rescinded the notice.