Name:SIPHELELE
Surname: NGCOBO
Student no:64671909
Module : LCP4801
(a) Immunity is a legal privilege attributed to certain persons (State officials) and recognized
by national and international law which enables them to exercise their functions free from
outside constraints or pressures, including legal ones. At the international level, immunity is
a tool that protects the sovereignty and independence of States by preventing them or their
agents from being prosecuted before foreign courts. Individuals entitled to immunity from
jurisdiction can thus avoid legal pursuit before national or international courts. This immunity
exists mainly for diplomats, United Nations personnel, and parliamentarians, as well as
government members and heads of State or of government. Immunity has been laid down in
customary international law and several international conventions
(b)Under international law, representatives of foreign states may be beneficiaries of personal
immunity or functional immunity, or both. Personal immunity (immunity ratione personae or
diplomatic immunity) ‘provides complete immunity of the person of certain officeholders while
they carry out important representative functions’.268 Personal immunity is absolute,
covering both private and public acts committed by officials (even those committed prior to
their taking office), but temporary that is, it only applies in so far as the person holds the
office in question. This form of immunityis provided for under both customary international
law,as well as various treaties but chiefly the 1961 Vienna Convention on Diplomatic
Relations.In terms of the Arrest Warrant decision, these immunities also extend to ‘certain
holders of high-ranking office in a State, such as the Head of State, Head of Government
and Minister for Foreign Affairs’. In addition to this, various treaties Extend similar immunities
to representatives of international organisations.Functional immunity (immunity ratione
materiae) relates to conduct carried out on behalf of a State. This form of immunity is based
on the notion that ‘a State may not sit in judgment on the policies and actions of another
State, since they are both sovereign and equal’. Equally, when a
person acts on behalf of a state – whether or not they are officials of that state – they may be
able to rely on this form of immunity in respect of any criminal sanctions that would otherwise
apply.In practice, however, functional immunity is more commonly raised in civil cases.
In contrast to personal immunity, functional immunity does not attach to all conduct
performed by state officials; it only applies to conduct carried out within the official capacity.
While a foreign state’s public acts (acts jure imperii) are subject to immunity and no
municipal court can assert jurisdiction in respect thereof, the question is more complicated in
the case of the commercial acts of the state (acts jure gestionis). Unlike personal immunity,
functional immunity is also permanent and does not lapse when the official ceases to hold
office; it is the conduct itself and not the office bearer that forms the basis of that immunity.
This form of immunity is given effect to under South African law by the Foreign States
Immunities Act,in terms of which ‘a foreign state shall be immune from the jurisdiction of the
courts of the Republic’. Under the Act, there are a number of exceptions to this immunity that
relate to civil claims, and it also provides for the waiver of immunity by the state
concerned.This immunity would extend to agents of the state acting on its behalf (but not
their private acts). Although the Act is primarily concerned with civil immunity, it expressly
includes the subjection of ‘any foreign state to the criminal jurisdiction of the courts of the
Republic’ As a result, any person acting on behalf of a state would also in principle be able
to claim immunity from criminal prosecutions related to such conduct.
(c ) The immunities from criminal and civil liability of heads of state and senior government
officials (such as the minister of foreign affairs) are set out in customary international law, not
treaties or conventions; the exception is the UN Convention on Special Missions of 1969
which mentions, in Article 21, that heads of state enjoy ‘privileges and immunities accorded
by international law to Heads of State on an official visit’, but it does not elaborate further.
Consequently, the exact nature and scope of the immunities is ambiguous.
By contrast, immunities of diplomats and consular officers are clearly set out in the Vienna
Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The
ambiguity of the immunities of heads of state is best illustrated by contrasting decisions of
the International Court of Justice (ICJ) and the UK House of Lords.
In the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium) [2002] ICJ 1, the ICJ reaffirmed the principle of immunity of the head of
state and other high officials. The Court stated: ‘in international law it is firmly established
that […] certain holders of high-ranking offices, such as the head of state, head of
government and minister of foreign affairs, enjoy immunities from jurisdiction in other states,
both civil and criminal’.
The ICJ has stated clearly that heads of state are immune for all acts performed during their
time in power, including torture, genocide, and crimes against humanity.
The UK House of Lords came to a very different conclusion than the ICJ in regard to the
actions by General Pinochet in Chile, finding that the nature of the acts (mass murders,
torture, disappearances) could not logically be considered as official acts, and therefore
Pinochet was not entitled to immunity in the courts of UK.Section 4(2)(a) of the
Implementation Act provides that:
[D]espite any other law to the contrary, including customary and conventional international
law, the fact that a person-
(a) is or was a head of State or government, a member of a government or parliament, an
elected representative or a government official [...], is neither-
(i) a defence to a crime; nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a
crime.
Most of the South African scholars who have commented on the Implementation Act have
interpreted this provision as removing whatever immunity (both functional and personal)
foreign officials may have before South African courts.12 Dugard and Abraham13 argue that
section 4(2)(a)(i) of the Implementation Act represents a choice by the legislature not to
follow the "unfortunate" Arrest Warrant decision, "of which it must have been aware". It
would be ridiculous, they say, to allow a foreign head of State or government responsible for
committing international crimes in his own country to plead immunity before a South African
court "when he could not do so before the ICC". In support of this view, Du Plessis says:
In terms of the Act, South African courts, acting under the complementarity scheme, are
accorded the same power to "trump" the immunities which usually attach to officials of
government as the ICC is by virtue of Article 27 of the Statute.
The above interpretation has also received judicial endorsement in Southern African
Litigation Centre v National Director of Public Prosecutions where Fabricius J said:
It must not be forgotten that the ICC Act itself denies explicitly diplomatic immunity to
government officials accused of committing ICC Act crimes. (See s 4(2) (a)). The recent trial
of Taylor, in the International Criminal Court in The Hague, is a case in point.
REFERENCE
-INTERNATIONAL LAW (textbook)
-the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)
[2002]
-Section 4(2)(a) of the Implementation Act
-Southern African Litigation Centre v National Director of Public Prosecutions
