These class notes are comprehensive for Assessments (tests/exams) for International Law (PBL 320). The also contain pointers for the likely questions for assessment purposes.
Please take note of the fact that these notes may not be comprehensive of the material required to be
covered for the module and contained in the prescribed syllabus as reflected in the study guide. There
may be errors; omissions or shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Dr Bradley; Prof. Nienaber, and Mr L Gerber; Lecturers in the Department of Public Law, University
of Pretoria: PBL 320 (Public International Law) 2019, Slides / Class Notes.
• PBL 320 Study Guide (2019) (University of Pretoria).
• J Dugard ‘Dugard's International Law: A South African Perspective’ (2019).
• Marissa Badenhorst (Class Notes Outlines for Extractive Industry Section), Law Student (University
of Pretoria).
Please note:
These notes shall not be shared without the express consent of the author(s) thereof.
PBL 320 22
AUG 2019
Study theme 4: Immunity from jurisdiction
Head of State Immunity: With a focus on criminal proceedings
by Dr. Bradley
Under State immunity, one has immunity in front of tribunals (nation courts of foreign states).
Under IL, the States consent to the jurisdiction of the court. Immunity frees one from the
jurisdiction of a court.
[1] The nature of immunity
There are two categories of immunity that exist under public international law, namely, the
ratione materiae (functional immunity); and ratione personae (personal immunity).
, Functional Immunity Personal Immunity
Purpose Functional immunity shields Diplomats, for instance, have
Public officials from absolute immunity against
incurring responsibility for prosecution in a foreign
actions performed in respect court, in a combination of
of their official function and both ratio personae and
in their official capacity on ratio materiae while they
behalf of a state or its organs hold their office, as a means
of allowing them to perform
their official functions.
Heads of state enjoy a similar
type of immunity. This is
functional plus personal life
immunity.
Foundation This type of immunity is Personal immunity also
rooted in the idea that the derives from customary
official activities of state international law, but is
organs are performed on attached exclusively to
behalf of the state and in individuals holding a
accordance with the particular office, for instance
principles of state heads of state or diplomats
sovereignty.
Temporal element A state official with This type of immunity
functional immunity enjoys benefits the recipient during
such immunity for the the period that the person
duration of his tenure in remains in the office to
office and cannot be which the immunity
prosecuted for official acts attaches.
conducted during that period.
Limitations This form of immunity is Personal immunity has been
limited to acts committed in described as absolute
a person’s official capacity, immunity in that it bars every
and acts which fall outside act of the official, private or
the scope of an official act otherwise, from prosecution
can therefore be prosecuted in a foreign jurisdiction.
either before the official Personal immunities include
takes office or after the the inviolability of the
official no longer occupies person, which means such a
the office. An example of person cannot be arrested or
such an act falling outside the detained and has complete
scope of functional immunity immunity from criminal
would be if a state official jurisdiction. Personal
murders a family member. immunity extends to civil
jurisdiction in a foreign
court, albeit with some
limited exceptions.
, [2] Head of State immunity
Head of State immunity is a manifestation of sovereign immunity, its purpose it to provide the
incumbent with immunity from prosecution. The content and the exact nature of the doctrine
of head of state immunity are, however, a matter of dispute.
Head of State immunity is not codified in treaty law, thus differing from diplomatic immunity
which is codified in the VCDR as well as consular immunity codified in the VCCR.
[a] Head of State immunity in foreign courts
It is a settled customary rule of IL that heads of states enjoy absolute immunity for their term
of office in front of Foreign Courts (this should not be confused with International Courts).
Although full immunity covers both official and personal functions when an official commits
an international crime, the question is whether the prosecution of the commission of an
international crime by a head of state after his tenure in office is an exception. Thus the duration
of the immunity after the president leaves his office is uncertain in the event that he committed
international crimes. This situation is problematic, since crimes obviously never form part of
the duties of a head of state. Unfortunately, there are limited examples of former head of state
immunity being questioned by foreign courts.
One such example is in The Pinochet case where, a former Head of State was tried in a Foreign
Court (Committed War Crimes and Crimes against humanity, while President in Chile, at age
88, needed medical attention in the UK, Spain* wanted extradition, - he was tried in a UK
Court, but he was fragile (sick) and the case did not go any further). There is no further practice
as to whether or not former Heads of States are immune from Foreign Courts. The House of
Lords, by a vote of six to one, concluded that President Pinochet did not enjoy immunity from
extradition for some of the crimes in question, specifically torture. The prohibition of torture
is a norm of jus cogens. This case however is an exception and evidence of subsequent practice
by foreign courts relating to the prosecution of heads of state in foreign jurisdictions after their
tenure in office is scarce or non-existent.
[b] Head of State immunity in International Criminal Tribunals
There is some evidence in practice that immunity has been waived in regard to sitting heads of
state, and former heads of states have been brought before an international tribunal as a result
of the commission of the most serious international crimes. Note However, that the ICC in the
Jordan Referral case regarding Al-Bashir found that there is insufficient usus and opinio iuris
to support that a customary law rule exists which waives state immunity before international
tribunals.
[i] International Criminal Court
It is very important to understand that Article 27(1) of the Rome Statute lifts immunity of
signatory states to the Rome Statute and that Article 27(2) imposes a horizontal obligation. The
purpose and content of Article 98 is also important. This section of the work ties in with the
Al-Bashir decision.
Article 27 waives immunity and there are no reservations that can be made. If you ratify the
ICC Statute, you agree that the officials of your state have no immunity whatsoever, and thus,
,you will cooperate to have any “officials” arrested in your territory if there is an arrest warrant
against such an official.
• The Rome Statute specifically determines that persons cannot rely on any form of
immunity conferred upon them either by national or international law if the state of
which such a person is a national is a signatory to the Rome Statute. Simply put, Article
27 determines that signatories to the Rome Statute consent that head of state immunity,
and the immunity of other members of government, are waived in terms of the Rome
Statute.
• Note: In Al-Bashir = Sudan is not a state party to the ICC. The ICC Statute provides
that it allows for referrals of the Security Council of non-member states. SC referred
the issue to the ICC (thus has jurisdiction), then the prosecutor sent an arrest warrant to
a sitting Head of State, the argument was that Sudan becomes a sui generis state (seen
as if they are a member state) – Article 27(2) – (was held Jordan was supposed to arrest
in terms of this sui generis thing).
The Rome Statute of the International Criminal Court is a treaty which establishes the
International Criminal Court, the purpose of which is to exercise jurisdiction over the most
serious international crimes as listed in Article 5 of its Statute (substantive jurisdiction):
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression
Temporal Jurisdiction: based on timeline = 1 July 2002?
General jurisdiction = Nationality and Territoriality
Nationality principle – if a citizen/national of a state party commits one of the crimes
listed in the Rome Statute, then the ICC gains jurisdiction.
Territoriality – crime committed on a territory of a state party to the Rome Statute.
Exceptional = via Referral
Article 27
Irrelevance of official capacity
(1) This Statute shall apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a government
official shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
(2) Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.
The Rome Statute of the International Criminal Court does not allow for any reservations, and
therefore member states are bound by the entire treaty. All member states, upon signature or
, ratification of this instrument, depending on whether the state is monist or dualist, waive head
of state and other forms of immunity. The meaning and purpose of article 27(1) clearly supports
the view that states consenting to the jurisdiction of the Rome Statute cannot raise immunity in
order to protect a head of state from the jurisdiction of this court. Article 27(2) of the Rome
Statute confirms that any immunities or special procedural rules which attach to a person owing
to their official capacity, for instance the capacity of head of state under national or
international law, will not apply in this court.
Thus, both sitting and former heads of state have absolutely no special privileges or immunities
acting as a bar to the jurisdiction of the International Criminal Court. The effect of horizontal
application of Article 27 means that signatories to the Rome Statute cannot rely on immunity
in order to prevent arrest or prosecution by the International Criminal Court at the request of
other member states. Since Article 27(2) operates on a horizontal level, all immunity is waived
between all member states, and a member state may arrest a head of state or a diplomat of
another member state if it is requested to do so by the International Criminal Court.
[ii] Co-operation between states – Article 98 of the Rome Statute
In order for the International Criminal Court to operate effectively, the cooperation of member
states, as well as judicial assistance, is required. Member states of the Rome Statute are obliged
to cooperate with the International Criminal Court in relation to the investigations conducted
by the court as well as in the prosecution of crimes which fall within the jurisdiction of the
court. In order to carry out its task, the International Criminal Court may use diplomatic
channels to request cooperation from member states. Such cooperation includes a request
for the arrest and surrender of a person on the territory of a member state. However, a
request for cooperation may not be made if such a request infringes upon the international
obligations of the requesting state in relation to the waiver of immunity. A member state to
the Rome Statute cannot be asked to surrender for instance the head of state of a third
state if the International Criminal Court did not first secure the consent of the sending
state to the surrender (except arguably in the case of a United Nations Security Council
Resolution – see Al-Bashir Case).
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
(1) The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under
international law with respect to the State or diplomatic immunity of a person or
property of a third State, unless the Court can first obtain the cooperation of that third
State for the waiver of the immunity.
(2) The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to surrender
a person of that State to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent for the surrender.
[iii]The Malabo Protocol
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