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• 6 Lecture 6

• 6.1 Immunities

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• What two types of immunity exist?

  1. Functional immunity (ratione materiae)
  2. Personal immunity (ratione personae)

• What does functional immunity (ratione materiae) entail?

  - It protects conduct carried our on behalf of a state. 
  - It attached to a comparatively large class of officials: all Aho carry out State functions.
  - It only covers conduct that was an official act of a State. So for example: criminal activity carried out in a private capacity remains subject to prosecution.
  - functional immunity does not drop away when a person's role comes to an end, as it protects the conduct, not the person.

• What does personal immunity (ratione personae) entail?

  - It is not limited to any particular conduct. It provides complete immunity of the person of certain office-holders while they carry out important representative functions. 
  - it is granted to a comparatively small set of people, such as Heads of State, Diplomats accredited to a host country.
  - It is temporarily: it lasts only for as long as the person is serving in that representative role.

• What kind of immunity do diplomats hold?

  Personal immunity. They are immune from criminal prosecution. Diplomats also enjoy immunity in third states while in transit between the sending state and the host state.
  
  However, after their term of service, diplomats continue to enjoy functional immunity for acts in the exercise of their functions. 

• What are the options for a host state to prosecute a diplomate when they commit a serious crime?

  - The host state can request a waiver of immunity from the sending State
  - They can declare the diplomat persona non grate
  - They can wait until the diplomats term is over, because the diplomat then only holds functional immunity. This means that the authorities of the host state may prosecute the diplomat for any crimes committed in a non-official capacity. 

• What does the latin phrase "par in parem non habet iundicum"?

  This means that one State cannot sit in judgement on another State. This is an attribute of sovereign equality. This principle is the underlying rationale to functional immunity.

• What was decided in the Yerodia case concerning personal immunities?

  The temporary status of personal immunity did not mean impunity for serious crimes. There are several options to bring a person to justice:
  1. The person may be tried in his home court.
  2. The person may be prosecuted if the home state waives the immunity.
  3. The person may be prosecuted once they cease to hold office, for crimes committed in a personal capacity.
  4. The person may be prosecuted before international criminal courts where such courts have jurisdiction.

• According to the ICJ Yerodia case, which persons hold personal immunity?

  1. Heads of State
  2. Heads of government 
  3. Ministers of Foreign Affairs 

• How can personal immunity be removed?

  1. By consent of the home State
  2. Through a Chapter VII decision of the Security Council: the UN Charter grants the UNSC a broad discretion to determine what measures are appropriate to maintain or restore international peace and security, whether involving the use of force (art. 42) or not (art. 41). All MS are obliged to comply with measures of the SC (art. 25 and 48). 

• In what case do states need to surrender a suspect of an international crime?

  If the UN Security Counsel asks countries to do so. States may not invoke that a person holds immunity in their state, because they are for example the Head of State. A State's obligation to the Security Counsel is paramount over all other obligations. Thus, a UN Member State receiving a request from the UNSC for the surrender of a person if obliged to comply with that request, even if the request conflicts with a duty to respect immunities.