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I. DE-RECOGNITION OF COLONEL QADDAFI AS HEAD OF STATE OF LIBYA?

Published online by Cambridge University Press:  11 August 2011

Stefan Talmon
Stefan Talmon
Affiliation:
Professor of Public International Law, University of Oxford, and Fellow, St. Anne's College Oxford.
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Extract

On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Mu'ammar Qaddafi and his family.1 Earlier that day, the British Foreign Secretary, William Hague, told BBC1's Andrew Marr Show:

[…] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to [sic] civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it's very clear where we stand on, on his status as a Head of State.2

Although Colonel Qaddafi claimed not to have any ‘official position’ in the Libyan State apparatus,3 he has been widely regarded as the Head of State of Libya. The French Court of Cassation held in March 2001 that, as the serving Head of State of the Libyan Arab Jamahiriya, he was completely immune in respect of alleged complicity in acts of terrorism.4 William Hague's statement seemed to give the impression that the United Kingdom no longer recognized Colonel Qaddafi as ‘Head of State’ and thus denied him diplomatic immunity, despite the fact that he was still being listed as such on the Foreign and Commonwealth Office's website ‘Country Profile: Libya’.5 This impression was reinforced by his statement that a British special forces operation the night before which rescued some 150 oil workers from remote desert camps in Libya had been carried out without the ‘official permission’ of the Qaddafi Government.6

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 60 , Issue 3 , July 2011 , pp. 759 - 767
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 See eg T Penny, ‘U.K. Revokes Diplomatic Immunity for Qaddafi and Family’ Bloomberg (London, 27 February 2011) <http://www.bloomberg.com> accessed before 31 May 2011.

2 ‘Foreign Secretary: Increasing Political Pressure on Colonel Gaddafi’, Foreign and Commonwealth Office, 27 February 2011 <http://www.fco.gov.uk> accessed before 31 May 2011, (emphasis added). In a statement on the situation in Libya to the House of Commons on 28 February 2011, Prime Minister David Cameron said: ‘The Government has revoked Colonel Qadhafi's immunity as a Head of State and neither he nor his family may freely enter the UK any more’ (‘Prime Minister's statement on Libya’, 28 February 2011 <http://www.number10.gov.uk> accessed before 31 May 2011).

3 ‘Libya protests: Gaddafi says “All my people love me” ’, BBC 28 February 2011, <http://www.bbc.co.uk/news> accessed before 31 May 2011.

4 See Gaddafi (2001) 125 ILR 490, 509–510.

5 ‘Country Profile: Libya’ Foreign and Commonwealth Office, <http://www.fco.gov.uk> accessed 18 May 2011). The Profile lists as ‘Head of State’ of Libya: ‘Colonel Muammar Al Qadhafi, “Leader of the Revolution (de facto Head of State)” ’.

6 (n 2).

7 HC Deb 14 November 1938, vol 341, cols 480–481.

8 S Talmon, Recognition of Governments in International Law (Clarendon Press, Oxford, 1998) 291, 299, 310.

9 For the text of the ‘Directions pursuant to section 20(3) of the State Immunity Act 1978’, 26 February 2011, see the Annex to this paper.

10 State Immunity Act 1978 (emphasis added).

11 Diplomatic Privileges Act 1964.

12 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95.

13 See ibid, art 31 and 37(1).

14 The State Immunity (Overseas Territories) Order 1979, 1979 No 458.

15 Immigration Act 1971. See also H Fox, The Law of State Immunity (2nd edn, OUP, Oxford, 2008) 248; Denza, E, ‘Ex Parte Pinochet: Lacuna or Leap?’ (1999) 48 ICLQ 949Google Scholar, 950.

16 Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3), [2000] 1 AC 147, 202–203 (per Lord Browne-Wilkinson), 209–210 (per Lord Goff), 240–241 (per Lord Hope), 250–251 (per Lord Hutton), 265 (per Lord Saville). Also 269–270 (per Lord Millett), 291–292 (per Lord Phillips).

17 Section 20 in its present form was not part of the State Immunity Bill (HL) and was introduced only at a later stage in the parliamentary proceedings. See A Dickinson, R Lindsay and JP Loonam, State Immunity: Selected Materials and Commentary (OUP, Oxford, 2004) 443, 445, 457.

18 State Immunity Act 1978, introductory text.

19 See (n 12); Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967); Convention on Special Missions 596 UNTS 261 (adopted 8 December 1969, entered into force 21 June 1985) 1400 UNTS 231.

20 See HL Deb 16 December 1978, vol 389, cols 1537–8.

21 See E Denza, Diplomatic Law (3rd ed, OUP, Oxford, 2008), 61. The exemption is regarded as flowing from the Vienna Convention on Diplomatic Relations art 7.

22 For example, on 21 August 2009 the President of Hungary was barred from entering Slovakia (‘Hungary wants new laws after Slovakia bars president’, AFP, 24 August 2009). For further examples, see Denza (n 15) 950; Watts, A, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’ (1994) 247 Recueil des Cours 10Google Scholar, 73.

23 Warbrick, C, Salgado, EM and Goodwin, N, ‘The Pinochet Cases in the United Kingdom’ (1999) 2 Yearbook of International Humanitarian Law 91CrossRefGoogle Scholar, 104.

24 Contra Denza (n 15) 950 who seems to suggest that section 20(3) also applied to ‘ex-Heads of State wandering the world’.

25 In Pinochet (n 16) the House of Lords assimilated the legal position of a former Head of State to that of a former head of a diplomatic mission to the United Kingdom.

26 See eg HC Deb 29 April 1980, vol 983, col 459W.

27 See the definition of ‘Members of Households’ in the Immigration Directorates' Instructions (June 2004), ch 14, s 1, para 6.

28 See the Directions in the Annex.

29 See the Directions in the Annex.

30 cf Denza (n 15) 950.

31 For the text of SC resolution 1970 (2011), see UN Doc S/RES/1970 (2011) of 26 February 2011.

32 SI 2011/547. The Order made by the Home Secretary under section 8B of the Immigration Act 1971 came into force on 28 February 2011.

33 See State Immunity Act 1978 ss 20(1), (5), 14(1)(a).

34 State Immunity Act 1978, s 21(a).

35 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, para 51.

36 See SC resolution 1970 (2011), para 4, UN Doc S/RES/1970 (2011) of 26 February 2011. See also SC resolution 1973 (2011), preambular para 14, S/RES/1973 (2011) of 17 March 2011.

37 See ‘Situation in the Libyan Arab Jamahiriya, Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi’, ICC-01/11-4-Red, 16 May 2011, <http://www.icc-cpi.int/> accessed before 31 May 2011.

38 Decision on the ‘Prosecutors Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11, 27 June 2011 <http://www.icc-cpi.int/> accessed before 30 June 2011.

39 See N Watt and P Wintour, ‘Libya no-fly zone call by France fails to get David Cameron's backing’, The Guardian, 23 February 2011 <http://www.guardian.co.uk>. A no-fly zone was subsequently established by SC Resolution 1973 (2011).

40 ‘PM urges Colonel Gaddafi to “Go Now” ’, (The Prime Minister's Office, 27 February 2011), <http://www.number10.gov.uk> accessed before 31 May 2011.

41 ‘Nations Condemn Libyan Crackdown’, Al Jazeera (22 February 2011) <http://english.aljazeera.net> accessed before 31 May 2011.

42 ‘Botswana severs Ties with Libya’ Southern Times Africa (28 February 2011) <http://www.southerntimesafrica.com> accessed before 31 May 2011; ‘France cuts diplomatic ties with Libya’, Press TV (27 February 2011) <http://www.presstv.ir> accessed before 31 May 2011.

43 ‘Libyan Ambassador to UK Expelled’, (Foreign and Commonwealth Office, 1 May 2011) <http://www.fco.gov.uk> accessed before 31 May 2011.

44 The London Diplomatic List, dated 30 June 2011, still listed nine Libyan diplomats serving at the ‘People's Bureau of The Great Socialist People's Libyan Arab Jamahiriya’ in London which continued to fly the green flag of the Qadhafi Government.

45 See the Directions in the Annex.

46 See Keesing's Contemporary Archives. Record of World Events (Catermill International, London, 1967), 21894.

47 ibid.

48 See also the statement of the British Government in the House of Lords: ‘Support for human rights is at the core of our foreign policy and will remain so. However, human rights issues are not necessarily a criterion for recognition of a state’ (HL Deb 27 April 2011 vol 727, col WA120).

49 (n 2).

50 It would however lead to the loss of Colonel Qadhafi's personal and functional immunity as serving Head of State in the United Kingdom.

51 For example, Spain, which in February 2011 had suspended the operations of its embassy in Tripoli, was able in May 2001 to sent back one of its senior diplomats accredited to the Qadhafi Government in order to monitor developments and seek the release of a Spanish journalist who had been held captive by Libyan government forces; see ‘Spain says it hasn't officially recognized Libyan Rebels’ (CNN, 5 May 2011) <http://edition.cnn.com> accessed before 31 May 2011.