NAME:………………
STUDENT NUMBER:………………….
SUBJECT: INTERNATIONAL LAW
MODULE CODE : LCP4801
ASSIGNMENT NUMBER
DUE DATE:
(a) The concept of immunity
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. Immunity is never absolute and is generally restricted
to acts committed in the exercise of official functions, during the time the person holds
that official position. It is generally accepted that there are two types of immunities,
functional immunity and personal immunity. 1
b. Types of immunity attached to a head of state or representatives of foreign
states
Functional immunity or immunity ratione materiae
1
Bossuyt, Marc, and Stef Van Deginste, ‘Immunity In Encyclopedia of Genocide and Crimes Against
Humanity’ 485–89.
, State officials are, generally speaking, immune from the jurisdiction of other states in
relation to acts performed in their official capacity (functional immunity or immunity
ratione materiae). As this type of immunity attaches to the official act rather than the
status of the official, it may be relied on by all who have acted on behalf of the state with
respect to their official acts. Thus, this conduct-based immunity may be relied on by
former officials in respect of official acts performed while in office as well as by serving
state officials. It may also be relied on by persons or bodies that are not state officials or
entities but have acted on behalf of the state. 2 The application of immunity ratione
materiae to state officials has been more common in civil than criminal cases. The
criminal jurisdiction of states is primarily territorial and state officials do not usually
exercise their official functions in the territory of other states. An important exception is
during an international armed conflict where combatants will often exercise their official
functions (engaging in hostilities) in the territory of the opposing state. However,
international humanitarian law has provided that these officials should not face criminal
prosecution at the hands of the enemy state solely for their involvement in such
hostilities as long as they adhere to the laws and customs of war. Thus, the
circumstances in which a state official may face criminal prosecution in a foreign state
for an act done in the exercise of official capacity are limited. Nevertheless, the
assertion of immunity ratione materiae in criminal cases is not unknown and the
reasons for which the immunity is conferred apply a fortiori in criminal cases.3
Personal immunity or immunity ratione personae
International law confers on certain state official’s immunities that attach to the office or
status of the official. These immunities, which are conferred only as long as the official
remains in office, are usually described as personal immunity or immunity ratione
personae. It has long been clear that under customary international law the Head of
State and diplomats accredited to a foreign state possess such immunities from the
jurisdiction of foreign states.4 In addition, treaties confer similar immunities on diplomats,
2
Dapo Akande and Sangeeta Shah, ‘Immunities of State officials, International crimes, and Foreign
Domestic courts 827.
3
Ibid.
4
Dapo Akande and Sangeeta Shah, ‘Immunities of State officials, International crimes, and Foreign
Domestic courts’ (2011) 21 EJIL 818.
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