Question 1

1.1 jus cogens

In international law this is referred to as a set of peremptory norms or fundamental

principles that are considered universally recognized and accepted as norms from
which no derogation is permitted. Norms are regarded as most important and
significant to a point where they prevail over treaties and they are binding on all
states.

1.2

 the prohibition of genocide

 the prohibition of torture; crimes against humanity
 the prohibition of slavery and slave trade
 the prohibition of piracy
 the prohibition of racial discrimination and apartheid and the violation of the
basic rules of international humanitarian law

Question 2

2.1

For failing to prevent the world war II and effectively address international conflicts. It
also had few weaknesses like limited membership and inadequate response to the
rise of fascist regime.

2.2

 security council
 economic and social council
 trusteeship
 international court of justice
 secretariat
 security council
 Question 3

Question 4

“Under the principle of immunity, international law prevents a state from exercising
jurisdiction over a matter or person, that will ordinarily fall within its jurisdiction, either
based on the identity of the person or entity involved, eg ; Minister of Foreign Affairs
or Head of State or the nature of the conduct in question. In pre-colonial Africa, there
were officials of government engaged in foreign affairs. These officials often enjoyed
immunity against arbitrary detention (Smith, p 605–607). International law regarding
immunity has ancient roots and, broadly speaking, has two aims: (1) To ensure the
smooth conduct of international relations (see Strydom’s discussion in this regard
and this aim’s connection to personal/diplomatic immunity); and (2) All states are
equal and no state should be entitled to exercise jurisdiction over another state’s
conduct (par in parem non habet imperium).”1

Through the concept of immunity, international law may, in some circumstances, bar
a court from having criminal or civil jurisdiction over foreign states and their
representatives. According to this principle, international law will prevent a state from
exercising jurisdiction over a situation that would typically fall under its purview,
either due to the nature of the action in question or the identification of the person or
entity concerned.2

A significant position is held by the principle of state immunity in both international

law and international relations. It is derived from the idea of sovereign equality of
States, which is one of the tenets of international law as stated in Article 2,
Paragraph 1 of the United Nations Charter.3

A significant position is held by the principle of state immunity in international law. It

comes from the idea of a state's sovereign equality.4 Reference to a foreign state

1
Lcp4801 study guide p 82
2 nd
Hennie strydom, International law 2 edition (2020) p 259
3 nd
Hennie strydom, International law 2 edition (2020) p 259
4 nd
Hennie strydom, International law 2 edition (2020) p 259
includes reference to the head of state, the government, and government
departments of the foreign state.5

The International Court of Justice (ICJ) determined in the Jurisdictional Immunities

case that the rule of state immunity has the status of international customary law,
entitling a state to assert immunity as a matter of right under international law with an
obligation on the part of other states to respect and give effect to that immunity.6
The Foreign States Immunities Act 87 of 1981, which governs immunity in South
Africa, applies the restrictive doctrine of immunity, whereby only official acts of a
foreign state (acta jure imperii) will enjoy immunity, leaving some foreign commercial
transactions (acta jure gestiones) subject to jurisdiction.7

In general, when foreign officials are present in another state, they are granted
personal immunity, functional immunity, or both. Both treaty law and customary
international law provide for personal immunity, which grants individuals of a given
office immunity while they perform significant representative duties. Comparatively,
functional immunity relates to actions taken on behalf of a state and, unlike personal
immunity, does not apply to all actions taken by state authorities.8

Diplomatic and consular representatives must be treated with respect, and the host
nation shall take all necessary precautions to shield them from any assaults on their
person, freedom, or dignity. This principle of inviolability also safeguards diplomatic
agents from being detained or arrested in any capacity. Consular personnel,
however, have a more restricted level of inviolability since, in the event of a serious
offense and in accordance with a ruling by an appropriate judicial authority, they may
be detained or arrested until trial.9

Judge Van Den Wyngaert determined that the negative state practice of not bringing
criminal charges against Ministers of Foreign Affairs could pass the opinio juris test
only if it could be established that the relevant states were aware of a legal obligation
not to bring charges. Therefore, the fact that there was no practice of filing charges

5 nd
Hennie strydom, International law 2 edition (2020) p 259
6 nd
Hennie strydom, International law 2 edition (2020) p 259
7 nd
Hennie strydom, International law 2 edition (2020) p 259
8
Lcp4801 study guide p 82-83
9 nd
Hennie strydom, International law 2 edition (2020) p 308, referring to Article 29 of the Vienna Convention
on Diplomatic Relations and Article 40 of the Vienna Convention on Consular Relations.
against Foreign Ministers is insufficient. Additionally, the state's decision not to
pursue criminal charges against foreign ministers must be motivated by its belief that
doing so is required by law. Judge Van Den Wyngaert determined that the negative
state practice of not bringing criminal charges against Ministers of Foreign Affairs
could pass the opinio juris test only if it could be established that the relevant states
were aware of a legal obligation not to bring charges. Therefore, the fact that there
was no practice of filing charges against Foreign Ministers is insufficient.
Additionally, the state's decision not to pursue criminal charges against foreign
ministers must be motivated by its belief that doing so is required by law. 10

There has been a shift in international criminal law away from the early stance of
strict immunity for heads of state and other high-ranking individuals. In fact, whether
a case is brought before an international or domestic court, immunity ratione
temporiae functional immunity does not apply. The position was unequivocally
reaffirmed in the early 1990s treaties that established the International Criminal
Tribunal for the former Yugoslavia and the International Criminal Tribunal for
Rwanda, which stated that holding an official position as a head of state or
government or as a responsible government official did not absolve an accused of
criminal responsibility or lessen the severity of punishment.11

Article 46bis of the Malabo Protocol, which amends the protocol on the statute of the
African Court of Justice and Human Rights, expresses the widely held view in the
African geopolitical arena that immunity applies to international crimes. ,12 'Immunity
of state officials from foreign criminal jurisdiction' was a topic that was discussed
during the General Assembly's Sixth Committee meeting, which took place from
October 3 to November 13, 2018. The discussion here, however, was primarily
concerned with the procedural issues of immunity. In order to prevent the
politicization of the process of assessing whether state employees have immunity,
South Africa stressed the need to work toward a set of rules that would promote
impartiality in evaluating whether immunity applies.13 South Africa’s remarks on the

10
Lcp4801 study guide P 38
11
Strydom International Law 254
12
48 ILM 314 (2009).
13
The Sixth Committee of the General Assembly carries out the mandate of article 13 of the Charter of the
United Nations to initiate studies and make recommendations for the purpose of encouraging the progressive
development of international law and its codification.
very sensitive issue of Omar al-Bashir's entry in South Africa in 2015 to attend an
African Union Summit, when two arrest warrants were issued, and immunity 14 had
been issued against him by the International Criminal Court. Academic discussion of
the matter is divided along starkly opposing points of view, with Tladi contending that
al-Bashir was entitled to immunity because the African Union Summit was technically
outside of South Africa's territorial jurisdiction and because al-Bashir had been
invited there by the late Robert Mugabe, who was the African Union's Chairperson at
the relevant time..15 Some, however, contend that South Africa was forced to hold al-
Bashir. This latter opinion is supported by authoritative case law as well as the
International Criminal Court itself, which determined that South Africa had disobeyed
its order to arrest and hand over Omar al-Bashir in 2017.16

14
The Prosecutor v Omar Hassan Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Al Bashir, case no ICC-02/05-01/09.
15
Dire Tladi ‘Article 46A Bis: Beyond the Rhetoric’ in Charles Jalloh, Kamari Clarke & Vincent Nmehielle (eds)
The African Court of Justice and Human and Peoples’ Rights: Development and Challenges (2019) Cambridge
University Press
16
The Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & Others 2016
(1) SACR 161 (GP); 2015 (5) SA 1 (GP); [2015] 3 All SA 505 (GP); 2015 (9) BCLR 1108 (GP).
References

Maphosa E ‘The African approach to the principle of complementarity of the

International Criminal
Court: A potential gem or germ?’ (2020) South African Yearbook on International
Law
Stone L ‘A Sign of the Times: South Africa’s Politico-Legal Retrogression as
Illustrated through the Intention to Withdraw from the Rome Statute’ (2018) 33(1)
Southern African Public Law
Strydom H (ed) International Law 2 ed (2020) Oxford University Press
Tladi D ‘Article 46A Bis: Beyond the Rhetoric’ in Jalloh C, Clarke K and Nmehielle V
(eds) The African Court of Justice and Human and Peoples’ Rights: Development
and Challenges (2019) Cambridge University Press
UNISA LCP4801 Study Guide (2018)
International Treaties

Protocol on the Amendments to the Protocol on the Statute of the African Court of
Justice and Human Rights 48 ILM 314 (2009)

UN General Assembly, Rome Statute of the International Criminal Court (last

amended 2010), 17 July 1998

Case Law

Arrest Warrant case (2002) ICJ Rep

Decision under Article 87(7) of the Rome Statute (ICC-02/05-01/09/302, Pre-Trial

Chamber II, 6 July 2017 athttps://www.icccpi.int/CourtRecords/CR2017_04402.PDF)

The Prosecutor v Omar Hassan Al Bashir, Decision on the Prosecution’s Application

for a Warrant of Arrest against Omar Hassan Al Bashir, case no ICC-02/05-01/09