COURSE: LCP 4801

ASSIGNMENT 01: SEMESTER 1

DUE DATE: 08 March 2023
Albertine Mkhosi

Student number: 49685627

ACADEMIC HONESTY DECLARATION

Declaration: .............................................
• I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
• I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to this style.
• I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.
• I did not make use of another student’s work and submit it as my own.

NAME: .............Albertine Mkhosi........................................................

SIGNATURE: ....................................................................................
STUDENT NUMBER: ...49685627...................................................
MODULE CODE: ..LCP 4801...............................................................
DATE: .......08 March 2023................................................................
ASSIGNMENT 01
a) Define the concept of immunity (5)
The concept of immunity originates from the need of states equality, where states
representatives were accorded respect, care and hospitality. The states are
represented by diplomat, whose interest is to protect the interest of nationals,
conduct negotiations between their governments and the host government and
promotes friendly relations. Based on the above, Immunity is an international law
principle, which may prohibits a court from exercising criminal or civil jurisdiction over
foreign states and their representatives. (Strydom, 2016).1 Immunity can be seen in
the form of personal or functional.

b) Discuss the types of immunity attached to a head of state or representatives

of foreign states (10)

Article 29, 2 and 313 of the 1961 Vienna Convention on Diplomatic Relations, gives
the framework of the types of immunities that can be enjoyed by head of state or
representatives of foreign states. It’s personal or functional immunity.

Personal immunity is a temporary but complete and absolute immunity which covers
both private and public acts and included acts committed prior to taking office. It only
applies as long as one holds the office.
This was confirmed by the Arrest Warrant court proceedings in which it was stated
that “there is no distinction that can be drawn between acts performed by a Minister
for Foreign Affairs in an “official capacity and those claimed to have been performed
in a “private capacity” (Arrest Warrant of 11 April 2000, 2002). The decision of the case
found that Belgium violated the legal obligation to the Democratic Republic of the
Congo, by failing to respect the immunity from criminal jurisdiction for the Minister for
Foreign Affairs of the Democratic Republic of the Congo. Belgium was ordered to
cancel the Warrant of Arrest and also inform the authorities whom they had informed.

1
International Law, H Strydom ed all (p253)
2
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving state shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom, or dignity.
3
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall
enjoy immunity from its civil and administrative jurisdiction.

2
Functional immunity is not attached to all conducts but only to those performed within
the official capacity, since the state may not sit in the judgement on the policies and
actions of another state.
This type of immunity is not absolute but permanent and doesn’t lapse when the official
ceases to hold office as immunity is for the conduct and the office bearer.
In South Africa various legislation are currently in place to legislate immunity for
Diplomats, this include and not limited to Section 2 of the Foreign states immunities
Act, 1981 makes provision of the general immunity from jurisdiction. This Act
determines the extend of the immunity of foreign states from the jurisdiction of the
courts of the Republic ; and to provide for matters connected therewith. (Government
of South Africa, 1981). The Diplomatic Immunities and Privileges Act, 2001,4 reaffirms
the Vienna Convention in terms of section 3 and section 4 makes provision of the
immunities and privileges of heads of state, envoys and certain representatives.

c) With reference to case law and opinion writings, provide a detailed opinion
on whether a head of state or representative of a foreign government has
immunity from international crimes (10)
Does the head of state or representative of a foreign government have immunity from
international Crimes?
We will review both personal and functional immunity. The Rome Statute of the
International Criminal Court Article 27, documents the irrelevance of immunity in terms
of official capacity, (functional immunity) in relations to international crimes. The South
African legislation, the implementation of the Rome Statute of the International
Criminal Court Regulations, in its preamble states the reasons for its position in terms
of international crimes and list what is deemed international crimes namely, genocide,
crimes against humanity and peace, and war crimes within and beyond South African
boarders. (Government Gazette, 2002). We will review the decision of the Arrest
Warrant case and the General Pinochet case decision.

4
To make provision regarding the immunities and privileges of diplomatic missions and consular posts
and their members, of heads of states, special envoys and certain representatives, of the United
Nations, and its specialised agencies, and other international organisations and of certain other
persons; to make provision regarding immunities and privileges pertaining to international conferences
and meetings; to enacting to law certain conventions ;and to provide for matters connected therewith.

3
The Nuremberg Charter aims to hold individuals, rather than states responsible for
breaches of international law. (Wikipedia , 2023). Strydom H states that functional
immunity does not apply to international crimes, whether prosecuted by international
or domestic courts; this was confirmed in the Pinochet case decision in which the
general was extradited to Spain for trail. Jus cogens norms are crimes that cannot be
justified based on your functional position. Akande and Shah argument is on the
ground that the non-application of functional immunity is based on the development of
international law; which are not documented but changes with the development of
society.

In terms of personal immunity international tribunal is not applicable and not in the
international Criminal Court. However, applicable in the domestic courts. (H
Strydom:255). This was confirmed in the Arrest Warrant case, in which the Minister
for Foreign Affairs of the Democratic Republic of Congo was deemed unlawful.

This has been almost unanimously upheld in state practice, as domestic courts in the
United Kingdom, Belgium, France, Spain and the United States, among others, have
refused to prosecute sitting officials for international crimson the basis that they
enjoy personal immunity. Therefore, under customary international law, heads of
state and certain other officials enjoy absolute personal immunity, even for
international crimes, before the domestic courts of other states.
South Africa personal immunity doesn’t apply in the prosecution of international
crimes as supported by the ICC Act states5:

[T]he fact that a person [...] 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

5
[T]he fact that a person [...] 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
[own emphasis].

4
 ground for any possible reduction of sentence once a person has been
convicted of a crime [own emphasis].

This was evident in the case of President Omar Al Bashir, who was in South Africa as
a result of an invitation to the AU summit. The High Court ruled against the South
Africa Government for not arresting the Sudanese President under international law
for charges of crime against humanity and war crimes.
From above I can concur with Dugard and Abraham argument that section 4(2)(a) of
the ICC Act is a significant departure from the international law immunities provision.
Therefore placing South Africa at risk of violating the sovereign rights of another state
should it choose to invoke it. The Constitution interpretation of personal immunity as
contrary to the Bill of rights.

In conclusion, personal immunity is not a ground for protection and functional

immunity depends on which country one finds themselves. Until the route course is
address, functional immunity should be reviewed and through the court process
ensures that the holder of the position is not prejudices as a result of commands
from higher level of the state.

5
Bibliography
University of South Africa . (2018). Civil Procedure study guide CIV3701. Pretoria :
University of South Africa .
Strydom, H. et al, (2016). International Law (pp. 253-256). Cape Town: Oxford
Unniversity Press Southern Africa .
Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium (ICJ
April 11, 2002).
Government of South Africa. (1981, October 28). www.gov.za. Retrieved from
Government Gazette:
https://www.gov.za/sites/default/files/gcis_document/201503/act-87-1981.pdf
Government Gazette. (2002, August 16). www.justice.gov.za. Retrieved from
Justice.gov.za: https://www.justice.gov.za/legislation/acts/2002-027.pdf
Vienna convention on diplomatic relations and optional protocol on disputes, done at
Vienna, April 18, 1961. (1973). [Washington] :[For sale by the Supt. of Docs., U.S.
Govt. Print. Off.],
Wikipedia . (2023, March 04). Wikipedia . Retrieved from en.wikipedia.org:
https://en.wikipedia.org/wiki/Nuremberg_trials