Gaddafi
| Jurisdiction | France |
| Judgment Date | 13 mars 2001 |
| Court | Court of Appeal (Paris) |
| Date | 13 mars 2001 |
(Cotte, President; Launay, Advocate General)
State immunity Jurisdiction Head of State Scope of immunity of Head of State in office Whether commission of international crime precluding Head of State from relying on State immunity Whether such exception to immunity now recognized as rule of customary international law Whether such exception applicable to terrorist offences
Relationship of international law and municipal law Crimes against international law Terrorism Punishment of terrorist crimes by municipal courts Whether requirement to prosecute such crimes constituting a rule of jus cogens Whether such rules automatically incorporated into domestic legal order The law of France
Summary: The facts:In 1989, a DC 10 aircraft operated by UTA Airlines exploded over the desert above Chad killing all 170 passengers and crew on board, including a number of French citizens. Traces of explosives were found in the wreckage and a French criminal investigation was opened. The investigation found evidence linking the remains of a suitcase and an electronic timer to the explosives, as well as circumstantial and other evidence linking these items to Libya. Six Libyan nationals, allegedly members of the Libyan Secret Police, and including the brother-in-law of Colonel Gaddafi, were tried in absentia by the Special Court of Assizes of Paris, for murder and destroying an aircraft. They were convicted in absentia and sentenced to life imprisonment in 1999. On the basis of this judgment, an organization which pursued the perpetrators of terrorist attacks (SOS Attentats) and relatives of the victims applied for criminal proceedings to be opened before the French courts against Colonel Gaddafi, the Libyan leader, alleging that he was implicated in the attack. The examining magistrate decided to open a criminal inquiry and the Ministre Public lodged an appeal against that decision, on the basis that the Libyan leader was entitled to jurisdictional immunity.
Held (by the Court of Appeal of Paris):The appeal was dismissed.
(1) The French courts were competent to exercise criminal jurisdiction over crimes committed abroad, where the victims were of French nationality, but not where the person accused was entitled to jurisdictional immunity.
(2) The jurisdictional immunity of a foreign Head of State was not guaranteed by any international treaty to which France was party or by any legislative text. But such immunity had always been recognized by the international community, including France. Indeed, both the courts and legal writers had consistently recognized such immunity as a rule of customary international law based on universally accepted general practice. Such custom was binding on France pursuant to the Preamble to the Constitution, which required France to conform to public international law.
(3) Whilst such immunity had originally been absolute, since the Second World War it had become subject to limitations. A whole series of international conventions ratified by France precluded reliance on jurisdictional immunity by Heads of State in proceedings brought before international tribunals for crimes against humanity, genocide and war crimes. These conventions, rather than constituting limited exceptions to absolute immunity, on the contrary reflected the desire of the international community to punish the most serious crimes, even where they had been committed by a Head of State in the performance of his duties, wherever the acts in question constituted international crimes contrary to the conscience of humanity.
(4) Furthermore, the combined effect of the Preamble to, and Article 22 of, the Statute of the International Criminal Court, was to recognize that it was the duty of signatory States to the Rome Convention to exercise their jurisdiction over international crimes, which were not limited to those specifically mentioned in the Convention, even where the person accused had the official status of a Head of State.
(5) The effect of the treaty provisions referred to above and recent judicial decisions, in particular in the cases of General Pinochet (United Kingdom)1 and General Noriega (United States)2, constituted proof of a general practice accepted as law by all States, including France, according to which immunity from prosecution only covered those public acts performed by a Head of State if they were not to be regarded as international crimes. It followed that immunity could not cover acts of complicity in murder and the destruction of property by terrorist action, where a Head of State ordered the destruction of a passenger aircraft carrying civilians.
The Procureur Gnral attached to the Court of Appeal of Paris appealed to the Court of Cassation against the judgment of the Chambre d'accusation
In his submissions to the Court of Cassation, Advocate General Launay rejected the reasons put forward by the Chambre d'accusation for upholding the jurisdiction of the French courts and argued that the Court of Cassation should exercise its power to terminate the proceedings against Colonel Gaddafi. In particular, the Advocate General considered that French ratification of the Rome Convention on the International Criminal Court would not require it to exercise its criminal jurisdiction to prosecute international crimes under all circumstances. A distinction had to be drawn between the possibility of exercising jurisdiction and the duty to do so. Indeed Article 98 of the Statute provided that the International Court could not proceed with a request for surrender or assistance if the requested State would thereby be required to act inconsistently with its obligations under international law with respect to State or diplomatic immunity. Whilst Article 27 of the Statute clearly excluded reliance on immunity by Heads of State of parties to the Rome Convention, it was not at all clear that the same applied to non-signatories such as Libya. This was only one of a number of examples demonstrating that, where it had been decided to derogate from a rule of customary international law, covering the jurisdictional immunity of Heads of State in office, this had always been done expressly through specific treaty provisions. An examination of the provisions of the instruments establishing the various international war crimes tribunals created since the Second World War demonstrated that this was the case.
Equally, the proceedings before the British and American courts brought against Generals Pinochet and Noriega respectively did not provide evidence for any general practice regarding the non-recognition of the immunity of Heads of State since neither Pinochet nor Noriega were Heads of State in office at the time the proceedings were brought. Furthermore, the Pinochet case was based on the application of the 1984 Torture Convention to which both the United Kingdom and Chile were parties. The indictment issued against President Milosevic, at the time when he was still the Head of State of Yugoslavia in office, was based upon a straightforward application of the
provisions of the Statute of the International Criminal Tribunal rather than any general rule of international criminal law. Furthermore, proceedings instituted against President Laurent Kabila before the courts of France, whilst he was on an official visit to that country, were terminated precisely because of the immunity enjoyed by Heads of State in officeAdvocate General Launay then considered whether the alleged terrorist attack might constitute an international crime of such gravity that its prosecution would be required by a binding rule of jus cogens, overriding any immunity granted by customary international law. He pointed out that no international treaty dealing with terrorist acts contained any express exemption from the jurisdictional immunity of Heads of State. Furthermore, such crimes were not within the jurisdiction of the International Criminal Court. It was true that certain peremptory norms of international law, such as the prohibition of genocide and certain cardinal principles of international humanitarian law, had been recognized by the International Court of Justice as rules of jus cogens. But France did not recognize the concept of jus cogens, as defined in Article 53 of the Vienna Convention on the Law of Treaties, 1969, and had so far not acceded to that Convention3. He concluded that the principle of the jurisdictional immunity of Heads of State in office was still regarded as a general and absolute rule of customary international law.
Held (by the Court of Cassation):The appeal was allowed and the proceedings against Colonel Gaddafi were terminated.
International custom precluded Heads of State in office from being the subject of proceedings before the criminal courts of a foreign State, in the absence of specific provisions to the contrary binding on the parties concerned. In the current state of international law, complicity in a terrorist attack, however serious such a crime might be, did not constitute one of the exceptions to the principle of the jurisdictional immunity of foreign Heads of State in office.
The text of the relevant part of the submissions of Advocate General Launay commences at p. 498. The text of the judgment of the Court of Cassation commences at p. 508. The following is the text of the relevant part of the judgment of the Court of Appeal of Paris:
On 16 June 1999, Beatrice de Boery and the Association SOS Attentats instituted proceedings and sought recognition as civil parties before the senior examining magistrate of the Tribunal de grande instance of Paris against Colonel Muammar Gaddafi, Libyan Head of State, for
complicity in murder and the destruction of property by an explosive substance causing death and involving a terrorist undertaking. Gaddafi was accused of having been implicated in...Pour continuer la lecture
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