CHAPTER 3 IMMUNITY
3.5 Immunities of foreign States' officials under the Implementation
3.5.3 Foreign State officials who qualify for immunity ratione personae
pleaded. The Diplomatic Immunities and Privileges Act901 provides the answer to this question. This Act provides that the representatives of foreign States are immune from the criminal (and civil) jurisdiction of the South African courts “in accordance with the rules of customary international law”.902
As stated above,903 under customary international law, immunity ratione materiae does not apply when a State official (or a former State official) is accused of international crimes before the courts of foreign States. With regard to immunity ratione personae, however, it was found that, under customary international law, this immunity applies even when a foreign State’s official is accused of international crimes. In accordance with the provisions of the Diplomatic Immunities and Privileges Act therefore, this immunity must be afforded to foreign States’ officials accused of international crimes before South African courts. In regard to this immunity, two questions need further attention. First, what are the foreign officials which, under customary international law, are entitled to immunity ratione personae before South African courts? Secondly, does immunity ratione personae apply to foreign States’ officials who would be in South African, not on official missions, but on private visits? In order to answer these questions one must refer to the provisions of the Diplomatic Immunities and Privileges Act and the rules established under customary international law in regard to the immunities of foreign States’ officials from the jurisdiction of foreign courts.
3.5.3 Foreign State officials who qualify for immunity ratione personae before South
accordance with the rules of customary international law”.907 The various State officials who qualify for this immunity will be identified below.
Before passing to that discussion, it is necessary to note that the Diplomatic Immunities and Privileges Act also provides for immunities of the representatives of the UN,908 specialised agencies909 and other international organisations,910 in accordance with The Convention on the Privileges and Immunities of the United Nations of 1946, the Convention on the Privileges and Immunities of the Specialised Agencies of 1947 or pursuant to any agreement entered to between the Republic of South Africa and an international organisation. In addition, the Diplomatic Immunities and Privileges Act provides that immunities may be provided for in an agreement between South Africa and a foreign State.911 However, these immunities will not be dealt with in this study.
First, since the focus of this study is the immunities of the officials of foreign States, immunities of the representatives of the UN, specialised agencies and other international organisations fall outside the scope of this study. On the other hand, since this study is concerned with the question of immunity as a matter of legal entitlement, immunities that may be provided for in an agreement between South Africa and a foreign State912 also fall outside the scope of the present study and will not be considered here.
The officials of foreign States who are entitled to immunity ratione personae before South African courts will be considered hereunder.
3.5.3.1 The head of State
It has long been recognised that under customary international law the head of State possesses immunity from the jurisdiction of foreign states.913 The head of State is the
907 Section 4(2)(a) Diplomatic Immunities and Privileges Act.
908 Section 5(1) Diplomatic Immunities and Privileges Act.
909 Section 5(2) Diplomatic Immunities and Privileges Act.
910 Section 5(3) Diplomatic Immunities and Privileges Act.
911 Section 4(2)(b) Diplomatic Immunities and Privileges Act.
912 During the writing of this thesis, no agreement containing a clause granting immunity to a foreign state’s officials immunity from the criminal jurisdiction of South African courts came to the attention of the present writer. However, in accordance with the Vienna Convention on the Law of Treaties (article 26), should such agreement exist South African courts would lack jurisdiction over the persons covered by the immunities as stipulated in the agreement and in accordance with the provisions of the Diplomatic Immunities and Privileges Act.
913 Akande and Shah 2011 European Journal of International Law 818.
prime representative of the State, the personification of the State.914 He is the embodiment of the State, and if he were to be arrested and prosecuted in foreign courts, the State would be insulted.915 Thus, the immunity which a head of State enjoys attaches to him as a symbol of the sovereignty and dignity of the State he represents.916 This was eloquently summed up by the House of Lords, obiter, in the third Pichochet case917 as follows:
It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state, whether in respect of his public acts or private affairs. His person is inviolable;
he is not liable to be arrested or detained on any ground whatever.
This customary rule was also confirmed by the Bow Street Magistrates’ Court (England) in proceedings for an arrest warrant for President Robert Mugabe of Zimbabwe. In this case,918 Mr Peter Tatchell applied for a warrant for the arrest of Robert Mugabe, the serving head of government of Zimbabwe on the basis of the allegation that President Mugabe was committing offences of torture in Zimbabwe. The Court declined to issue the arrest warrant on the grounds that President Mugabe enjoyed State immunity under customary international law as well as under English law.919 The provisions of the Diplomatic Immunities and Privileges Act920 that grant foreign heads of State immunity
914 Franey Immunity 77.
915 Franey Immunity 78. For a contrary view, see Murungu “Judgment” 25: “[a]s long as punishment of international crimes is concerned, there is no point in regarding heads of state as a special class that deserves protection different from any other private individual who commit the same international crimes”.
916 Franey Immunity 77.
917 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 171.
918 Re Mugabe Bow Street Magistrates’ Court 14 Jan 2004 ILDC 96 (UK 2004), reproduced in Warbrick 2004 International and Comparative Law Quarterly 769. See also The Guardian 2004 http://www.guardian.co.uk/world/2004/jan/08/zimbabwe.uk
And News 24 2004 http://www.news24.com/xArchive/Archive/Mugabe-immune-to-arrest- 20040114
919 The Judge held that: “international customary law which is embodied in our Common Law currently provides absolute immunity to any Head of State. In addition to the Common Law our State Immunity Act of 1978 which extends the Diplomatic Privileges Act of 1964 provides for immunity from the criminal jurisdiction for any Head of State. I am satisfied that Robert Mugabe is President and Head of State of Zimbabwe and is entitled whilst he is Head of State to that immunity. He is not liable to any form of arrest or detention and I am therefore unable to issue the warrant that has been applied for”. Re Mugabe Bow Street Magistrates’ Court 14 Jan 2004 ILDC 96 (UK 2004), reproduced in Warbrick 2004 International and Comparative Law Quarterly 770. See also Akande 2009 Journal of International Criminal Justice 334: “[t]he immunity accorded to a serving head of state, ratione personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when he is accused of committing an international crime”.
920 Section 4(1)(a) Diplomatic Immunities and Privileges Act.
from the jurisdiction of South African criminal (and civil) courts are thus reflective of customary law.
3.5.3.2 The head of government
Not all heads of State are also head of government. In the UK, for example, the Queen is the head of State while the Prime Minister is the head of government.921 It is the Prime Minister who, as head of government, oversees the operation of the government agencies and appoints members of the government.922 The Diplomatic Immunities and Privileges Act does not make any mention of head of government among the foreign officials who qualify for immunity from South African courts. However, the Act grants immunity to “representatives” of foreign States “in accordance with the rules of customary international law”.923 The question whether foreign heads of government should be granted immunity ratione personae in South African courts must therefore be answered by reference to customary international law.
This question was considered by a Belgian court in 2002 in proceedings against Mr Ariel Sharon,924 then Israeli Prime Minister.925 As already discussed above,926 the Belgian Court of Cassation held that customary international law prohibited heads of government from being the subject of proceedings before the criminal courts of foreign States and held that the proceedings against him were inadmissible.927 The immunity ratione personae of the head of government was also endorsed in the Arrest Warrant case. The ICJ held, obiter, that the head of government is one of the holders of high ranking office in a State who enjoy immunity from both criminal and civil jurisdiction in
921 Website of the British Government Date Unknown https://www.gov.uk/government/how- government-works
922 Website of the British Government Date Unknown https://www.gov.uk/government/how- government-works
923 Section 4(2)(a) Diplomatic Immunities and Privileges Act
924 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 110.
925 In Israel, the President is the Head of State while the Prime Minister is the Head of Government. See the website of the Israel Ministry of Foreign Affairs 2013 http://mfa.gov.il/mfa/aboutisrael/state/democracy/pages/office%20of%20the%20president.aspx 926 See 3.4.2.1.1.1.2.1 above.
927 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 124.
other States, and that the purpose of such immunity is to enable them to perform their function.928
It therefore appears to be no doubt that, under customary law, the head of government is entitled to immunity ratione personae in the same manner as the head of State.929 Consequently, although the Diplomatic Immunities and Privileges Act does not specifically mention the head of government among the list of foreign officials who qualify for immunity from South African courts, such an important official should be accorded immunity under the category of State “representatives”.
3.5.3.3 The minister of foreign affairs
The Diplomatic Immunities and Privileges Act does also not specifically mention the Foreign minister among the officials who enjoy immunity from jurisdiction of South African courts. However, given the important function that such an official fulfils, there is no doubt that, under customary international law, he enjoys such immunity.
This immunity was considered in the Arrest Warrant case. The ICJ held that a foreign minister needed to be able to travel and communicate freely to be able to fulfil his role and that for this reason he must be accorded immunity from the criminal jurisdiction of foreign States.930 The Court observed that:
the functions of a Minister of for Foreign Affairs are such that, throughout the duration of his or her office, he or she would enjoy full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.931
The ICJ was thus unequivocal in its finding that an incumbent foreign minister is absolutely immune from the criminal jurisdiction of foreign States. Thus, just as the head of government, the foreign minister should be accorded personal immunity in the group of “certain representatives”. What the ICJ did not consider was whether such immunity should also be granted to ministers other than the foreign minister.
928 Arrest Warrant case para 51.
929 See also Foakes “Immunity for International Crimes?” 5 and Cryer et al International Criminal Law 535.
930 Arrest Warrant case para 70.
931 Arrest Warrant case para 54. See also para 53: “In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States”.
3.5.3.4 Other ministers
In the Arrest Warrant case the ICJ did not say anything about whether ministers other than the foreign minister were also immune from the criminal jurisdiction of foreign States. Though, in describing the rule according immunity ratione personae, the ICJ stated that it applies to:
certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs.932
The use of the words ‘such as’ suggests that the list of senior officials entitled to this immunity is not exhaustive.933 In fact, the ICJ made it clear that it was only the immunity of an incumbent foreign minister that was being considered in the Arrest Warrant case.934
In this case, foreign ministers were held to be immune because they are responsible for the international relations of the State and that in the performance of these functions, they are frequently required to travel internationally, and thus must be in a position to do so freely whenever the need should arise.935 This justification of the foreign minister’s immunity applies with equal force to justify the granting of personal immunity to other ministers other than the foreign minister. Other ministers also represent their States internationally and need to be able to operate without the fear of arrest, detention or prosecution. In fact, it is difficult to think of any ministerial position that will not require some level of international involvement.936
The question of whether ministers other than the foreign minister are entitled to immunity ratione personae arose in a case against General Shaul Mofaz, the Israeli Defence Minister, in the United Kingdom. In this case,937 an application had been made to the Bow Street Magistrates’ Court for a warrant for the arrest of General Shaul Mofaz,
932 Arrest Warrant case para 51.
933 Foakes “Immunity for International Crimes?” 5: “the language used in paragraph 51 of the judgment, with its reference to ‘certain holders of high-ranking office in a state, such as the head of state, head of government and minister for foreign affairs’, suggested that there may be other holders of high office who also enjoy such immunities”.
934 Arrest Warrant case para 51.
935 Arrest Warrant case para 53.
936 Akande 2011 European Journal of International Law 821.
937 Application for Arrest Warrant against General Shaul Mofaz Decision of District Judge Pratt, Bow Street Magistrates’ Court (12 February 2004), reproduced in Warbrick 2004 International and Comparative Law Quarterly 771. Also available at http://www.geneva- academy.ch/RULAC/pdf_state/Application-for-Arrest-Warrant-Against-General-Shaul-Mofaz.pdf [15 April 2014].
who was believed to be visiting England. It was alleged that General Mofaz, in his capacity as defence minister, committed grave breaches of article 147 of Geneva Convention IV. The court considered whether General Mofaz had State immunity in his capacity as Israeli defence minister, and held:
[A]lthough travel will not be on the same level as that of a Foreign Minister, it is a fact that many states maintain troops overseas and there are many United Nations missions to visit in which military issues do play a prominent role between certain States, It strikes me that the roles of defence and foreign policy are very much intertwined, in particular in the Middle East.938
Accordingly, the judge declined to issue the requested arrest warrant against Israeli Defence Minister.939 The same approach was followed in a case against Mr Bo Xilai, then Chinese minister of commerce.940 The case arose at Bow Street Magistrates’
Court, when on 8th November 2005 an application was made for a warrant for the arrest of Mr Bo Xilai on the allegations of conspiracy to commit torture. The court held that the functions of a minister of commerce were equivalent to those exercised by a Minister for Foreign Affairs and that, for that reason, the Chinese minister had immunity under customary international law as he would not be able to perform his functions unless he is able to travel freely.941 Accordingly, the court declined to issue the requested arrest warrant.942
The above decisions are well reasoned. A defence minister or minister of commerce, although not in charge of foreign affairs need to be able to travel on official missions without fear of arrest. In fact, all ministers may have to conduct bilateral negotiations with foreign governments or may represent their governments in international organiza- tions or at international summits and conferences.943 For this reason, it is suggested that immunity ratione personae from South African courts should be extended to all ministers, under the category of State “representatives”944 as provided for in the Diplomatic Immunities and Privileges Act. Furthermore, all ministers would also fall in
938 Application for Arrest Warrant against General Shaul Mofaz Decision of District Judge Pratt, Bow Street Magistrates’ Court (12 February 2004), reproduced in Warbrick 2004 International and Comparative Law Quarterly 773.
939 Application for Arrest Warrant against General Shaul Mofaz Bow Street Magistrates’ Court Decision of District Judge Pratt (12 February 2004), reproduced in Warbrick 2004 International and Comparative Law Quarterly 773.
940 Re Bo Xilai Bow Street Magistrates’ Court 8 Nov 2005 [2007] 128 ILR 713.
941 [2007] 128 ILR 714.
942 [2007] 128 ILR 715.
943 Akande 2011 European Journal of International Law 821.
944 Section 4(2)(a) Diplomatic Immunities and Privileges Act.
the broader category of “special envoys” as provided in section 4(2)(a) of the Diplomatic Immunities and Privileges Act, which will be considered next.
3.5.3.5 Officials on special missions
A very wide number of senior and junior State officials with non-ministerial posts are charged with the conduct of international relations.945 Accordingly, it becomes necessary to extend personal immunity to State officials other than ministers who need to travel in the exercise of their official functions. This issue is addressed by the 1969 Convention on Special Missions.946 This treaty confers immunities on States’ officials on a “special mission” in foreign States.947 Under this Convention, the person of any official abroad on a “special mission” on behalf of his or her State is inviolable and not liable to any form of arrest or detention.948 They are accorded immunity from the criminal jurisdiction of the receiving State.949 This is a treaty-based immunity ratione personae which extends the category of States officials covered by such immunity beyond the Head of State, the Head of Government, and ministers and is intended to facilitate the conduct of international relations.
South Africa is not party to the Convention on Special Missions.950 However, under the Diplomatic Immunities and Privileges Act immunity ratione personae is granted to the
“special envoys” of foreign States. Under this Act, a “special envoy or representative”
means:
a person duly authorised by the sending state, government [or organisation] to undertake a special mission or task in the Republic on behalf of such state, government [or organisation].951
This definition of “special envoys” clearly includes any foreign State’s official on a special mission in South Africa. The Act provides that such envoys shall be accorded immunity in accordance with the rules of customary international law. The customary nature of immunity ratione personae of such officials was considered by the ILC which,
945 Akande 2011 European Journal of International Law 821 and Wickremasinghe “Immunities”
401.
946 Convention on Special Missions (1970).
947 Arts 21, 39, and 31 Convention on Special Missions.
948 Art 29 Convention on Special Missions.
949 Art 31(1) Convention on Special Missions.
950 The list of signatory States and States that have acceded to the Convention on Special Missions is available at the treaty collection of the United Nations at http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-9&chapter=3&lang=en 951 Section 1(6) Diplomatic Immunities and Privileges Act.