Theme 4B - Immunity

Question 1

What is the meaning of immunity ?

Answer 1

Immunity basically means that jurisdiction cannot be exercised as it normally would because of special factors which prevent its usually or normal application.

Question 2

What are the two categories of immunity ?

Answer 2

• Functional immunity.
• Personal immunity.

Question 3

What is the purpose and rationale for functionall immunity ?

Answer 3

• It shields public officials from responsibility for acts performed in respect of their official function and in their official capacity on behalf of a state or its organs.
• The rationale is the principle that one state may not sit in judgment of another state.

Question 4

What is the temporal element and limitations for functional immunity ?

Answer 4

• A state official with functional immunity enjoys such immunity for the duration of his tenure in office and cannot be prosecuted for official acts conducted during that period.
• This form of immunity is limited to acts committed in a person’s official capacity, and
  acts which fall outside the scope of an official act can therefore be either before the official takes office or after the official no longer occupies the office.

Question 5

What is the purpose and rationale for personal immunity ?

Answer 5

• Senior state officials are usually protected from being sued in foreign countries for their official actions.
• This immunity helps maintain state sovereignty and allows officials to do their jobs without fear of legal interference.
• Heads of state have absolute immunity against arrest and prosecution in a foreign court state or its organs as means of allowing them to perform their official function.

Question 6

What is the temporal element and limitations of personal immunity ?

Answer 6

• This type of immunity benefits the recipient during the period that the person remains in the office to which the immunity attaches.
• Personal immunity has been described as absolute immunity in that it bars every act of the official, private, or otherwise, from prosecution in a foreign jurisdiction.

Question 7

Discuss the exception to personal immunity.

Answer 7

• In terms of the Arrest Warrant case, personal immunity does not apply before
  international courts.
• Also clarified that immunity might be lifted in three other instances such as when the accused is tried in their home state; if the home state waives immunity; and if the accused no longer holds office.