CYIL 2012

INTERNATIONAL LAW ON IMMUNITIES ACCORDED TO HIGHǧRANKING STATE OFFICIALS immunities and become liable to prosecution for any international crime they may have committed while in office. 37 In contrast, former heads of state will always enjoy functional immunity (ratione materiae) in respect of all official acts performed while in office, the reason being that the act is legally attributed to the state, hence any legal liability for it may only be incurred by the state. 38 This was challenged by the House of Lords in the case concerning the former Chilean dictator Augusto Pinochet Ugarte (Pinochet case), which will be described in the next chapter. In summary, on the one hand, the serving head of state always enjoys functional immunity. When leaving office the head of state cannot be prosecuted for so called official acts performed while in office on the grounds of functional immunity. However the state could be liable for those acts. On the other hand, as soon as the head of state leaves the office he no longer enjoys personal immunity and becomes liable for other acts performed while in office. 2.3 Case study on Immunities accorded to Heads of State and other state officials 2.3.1 The practice before National Courts The first case to be described is the Pinochet case , which marked a turning point especially in international criminal law and for the understanding of immunities enjoyed by former heads of state, demonstrates how national courts assert the principle of universal jurisdiction in relation to immunities. Furthermore three other cases should be briefly addressed in this respect, namely the Qaddafi case (which was brought before the Court of Cassation in Paris), 39 the Sharon case (brought before the Belgian Cour de Cassation) 40 and the Castro case (brought before the Spanish court). 41 In 1998 while the former Chilean head of state, Augusto Pinochet Ugarte, was visiting the United Kingdom for medical treatment, a Spanish court invoked principles of universal jurisdiction and issued two international arrest warrants for several crimes allegedly committed by Pinochet primarily in Chile during his tenure as head of state. The charges included torture and conspiracy to torture. Acting on these international arrest warrants, a British magistrate’s court issued two provisional arrest warrants. Pinochet was then arrested by the British authorities. He applied to have the warrants quashed, inter alia , on the grounds that as a former head of state 37 Antonio Cassese: International Criminal Law, p. 312-313. 38 Antonio Cassese: “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case”, p. 863. 39 French case concerning the Qadaffi case, Court of Cassation 2001 . See discussion on the case in Salvatore Zappalà: “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Qaddafi Case Before the French Cour de Cassation”. 40 Belgian case concerning the Sharon case, Cour de Cassation 2003 . See discussion on the case in Antonio Cassese: “The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case”. 41 Spanish case concerning Fidel Castro, Spanish Court 1999 . See discussion on the case in Antonio Cassese: “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case”.

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