ASIL Insights

According to news reports, a French appeals court has held that the Libyan head of state, Muammar Qadhafi, could be prosecuted in France for his alleged role in the bombing of a French airliner over Niger in 1989. French prosecutors have opposed the prosecution, arguing that Qadhafi is entitled to head-of-state immunity in the French courts, but an investigating magistrate rejected the argument and the appeals court upheld that decision. The prosecutor is likely to appeal to the Court of Cassation, the highest court in France.

The Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation ⁽¹⁾ makes it unlawful to damage or destroy an aircraft in service, and gives jurisdiction over the offense to (among others) the state of registration of the aircraft. It applies not only to those who actually do the destructive act, but also to "accomplices." One issue would be whether Qadhafi could be considered an accomplice in this instance, or perhaps could be considered a person who performed the destructive act if it could be proved that he ordered it or otherwise took part in it.

A separate issue is whether Qadhafi is entitled to head-of-state immunity. Normally, under international law, heads of state while in office are entitled to absolute immunity in the courts of other countries. The French appeals court said, however, that head-of-state immunity does not apply to terrorist acts. There is very little law, if any, directly on that point. A federal court in the United States has upheld head-of-state immunity in a case against a then-serving head of state, Jean-Bertrand Aristide, involving an alleged political assassination, ⁽²⁾ but an assassination would not normally be regarded as terrorism. The British House of Lords denied head-of-state immunity to Augusto Pinochet of Chile in a case involving alleged torture, but he was no longer the head of state at the time of the proceedings. ⁽³⁾ The Statute of the International Criminal Court, article 27(2), ⁽⁴⁾ rejects immunities that may attach to the official capacity of a person for acts including crimes against humanity, but crimes against humanity are defined as including only acts committed as part of a widespread or systematic attack against a civilian population, and in any event the Statute governs only that international tribunal, not domestic courts, and the Statute is not yet in force.

The argument for head-of-state immunity from prosecution for terrorist acts would be weaker if the proceedings were postponed until such time as Qadhafi is no longer the head of the Libyan state. As noted above, the British House of Lords rejected head-of-state immunity for Pinochet, after he was no longer in power.

About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.  

Further Reading
For further discussion of these and related issues, see the previous ASIL Insights, "The Democratic Republic of the Congo Requests the World Court to Order Belgium to Annul an Arrest Warrant issued against the Congo's Foreign Minister," Oct. 2000; "Alien Tort Claims Act Proceeding Against Robert Mugabe," Sept. 2000; "Possible Indictment of Pinochet in the United States," March 2000; "The Indictment in Senegal of the Former Chad Head of State," Feb. 2000; "Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina," Sept. 2000; and "The Pinochet Arrest and Possible Extradition to Spain," Oct. 1998.

Endnotes
1. Sept. 23, 1971, 24 U.S. Treaties 564, 10 I.L.M. 1151 (1971).
2. Lafontant v. Aristide, 844 Fed. Supp. 128 (Eastern Dist. N.Y. 1994).
3. Ex Parte Pinochet, 38 I.L.M. 581 (1999).
4. 37 I.L.M. 999, 1017 (1998).