Exam (elaborations)
LCP4801 Assignment 1 Semester 2 year 2024
- Course
- International law (LCP4801)
- Institution
- University Of South Africa (Unisa)
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+27849856061 Email; wealighttutorials@gmail.comAssessment 1
In June 2014, the African Union sitting in Malabo, Equatorial Guinea adopted a legal
instrument which expanded the jurisdiction of the African Court of Justice and
Human Rights. The instrument known as the Protocol on the Amendments to the
Protocol on the Statute of the African Court of Justice and Human Rights (the
Malabo Protocol) introduced a third chamber known as the International Criminal
Law Section. This effectively created a new international criminal court for Africa.
However progressive this initiative was, several commentators raised concern with
article 46A bis (the immunity clause) which provides that: "No charges shall be
commenced or continued before the Court against any serving AU Head of State
or Government, or anybody acting or entitled to act in such capacity, or other
senior state officials based on their functions, during their tenure of office." Your
organisation, Africa First is a human rights organisation working in conflict zones
around the continent to identify and assist victims of human rights violations. You
are asked to give an opinion on the legality or otherwise of the immunity clause as
cited above. You are to rely on case law and other authoritative sources of
international law in your response.
a) Define the concept of immunity (5)
Immunity is the principle under international law which will prohibit a state from exercising
jurisdiction over a matter that would ordinarily fall within its jurisdiction, either based on
the identity of the person or entity involved (for example, a head of state) or the nature of
the conduct in question.
b) Discuss the types of immunity attached to a head of state or representatives of
foreign states
(10)
, There are two forms of immunity, namely, personal and functional immunity.
i. Personal immunity
This form of immunity provides complete immunity of the person of certain officeholders
while they carry out important representative functions‟. It 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 immunity is provided for under both customary international law,
as well as various treaties.
In the Arrest Warrant it was held that 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.
ii. Functional immunity
This form of immunity relates to conduct carried out on behalf of a State. It 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. However, in
practice, functional immunity is more commonly raised in civil cases.
Different from 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, therefore, not absolute. It is also permanent and does not lapse when the official
ceases to hold office because it is the conduct itself and not the office bearer that forms
the basis of that immunity.
iii. Diplomatic immunity
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