CYIL 2012

INTERNATIONAL LAW ON IMMUNITIES ACCORDED TO HIGHǧRANKING STATE OFFICIALS principles of international law from which no derogation is permitted), which could not be a normal official act of a head of state and therefore the immunity to which Senator Pinochet is entitled as a former head of state did not arise. 46 On 31 March 2001 the Court of Cassation in Paris issued its final decision in the case against Mouammar Qaddafi, leader of Libya (socialist people’s Libyan Arab Jamahirya), who had been charged in absentia with murder for complicity in a terrorist action. The case originated from the bombing of a DC-10 aircraft on 19 September 1989, which exploded over the Ténéré desert causing the death of 156 passengers and 15 crew members, including French citizens. Charges were brought against Qaddafi for complicity in acts of terrorism leading to murder and the destruction of the aircraft. These charges where confirmed by the Chambre d’accusation. As a result the prosecutor filed a motion for annulment of the whole procedure before the court, on the basis of the principle of the immunity of heads of state. The French Supreme court accepted the plea of immunity and declined jurisdiction over the case. 47 The court held that international customary law prohibits the exercise of criminal jurisdiction over incumbent heads of state. 48 The court, however, did not clarify what immunity was recognised for Qaddafi (whether it was the immunity linked to his official functions, or the immunity covering his private life). On the issue of immunities enjoyed by heads of state the French court could have decided whether aircraft bombing constitutes an international crime, and, if so, the court should have concluded that Qaddafi was not entitled to functional immunity, because of the existence of an exception to jurisdictional immunity for crimes under international customary law. On the other hand, as an incumbent head of state he should have been recognised as having personal immunity. 49 46 Robert Cryer, a.o.: An Introduction to International Criminal Law and Procedure, p. 540-541; Andrea Bianchi: “Immunity versus Human Rights: The Pinochet Case”, p. 246-247. Another case, almost similar to the Pinochet case , was litigated before the Court of Appeal of Dakar, Senegal, where those in power where engaged in systematic torture and many people were murdered and killed. Hissere Habre, a former president of Chad, sought refuge in Senegal after he was removed from office. In 2000, complaints where filed against Hissere Habre by different groups of people alleging, inter alia, that they were the victims of crimes against humanity and torture. After a careful review of the charges, an indictment was issued where the former president was placed under house arrest. Habre appealed, arguing that the Senegalese Courts lacked jurisdiction to prosecute him since the charges in question were committed in Chad. Senegalese Court, case concerning Hissere Habre, Senegal Court of Cassation, Dakar 20. March 2001, retrieved from: http://www.chr.up.ac.za/index.php/browse-by-country/ senegal/431-senegal-guengueng-and-others-v-habre-2002-ahrlr-183-secc-2001.html. 47 Salvatore Zappalà: “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Qaddafi Case Before the French Cour de Cassation”, p. 595-596. 48 Salvatore Zappalà: “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Qaddafi Case Before the French Cour de Cassation”, p. 597. 49 Salvatore Zappalà: “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Qaddafi Case before the French Cour de Cassation”, p. 598, 611-612. It should be noted that the Court did not indicate on what basis it considered Qaddafi a head of state but according to the Libyan constitutional system the characterization of Qaddafi as head of state may be doubtful.

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