A. Introduction
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.Footnote 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.Footnote 2
Although Colonel Qaddafi claimed not to have any ‘official position’ in the Libyan State apparatus,Footnote 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.Footnote 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’.Footnote 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.Footnote 6
The revocation of functional and personal immunity and, even more so, the withdrawal of recognition from a serving Head of State who continues to control substantial parts of the foreign State's territory would have been an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation and domination. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938,Footnote 7 the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.Footnote 8
B. Direction by the Foreign Secretary Pursuant to Section 20(3) of the State Immunity Act 1978
Rather than withdrawing Head of State recognition from Colonel Qaddafi and depriving him, his sons and his family of diplomatic or personal immunity in the United Kingdom, the Directive signed by Foreign Secretary William Hague had, in fact, a much more limited effect.Footnote 9 It found its legal basis in section 20(3) of the UK State Immunity Act 1978 which provides:
Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971.Footnote 10
Subsection (1) stipulates that a sovereign or other Head of State, members of his family forming part of his household, and his private servants shall, irrespective of presence in or absence from the United Kingdom, enjoy the same position under the Diplomatic Privileges Act 1964Footnote 11 as the head of a diplomatic mission accredited to the United Kingdom, members of his family forming part of his household and his private servants. This means that, while in office, Colonel Qaddafi, his family members and his private servants enjoy in the United Kingdom all the privileges and immunities laid down in articles 29 to 38 of the 1961 Vienna Convention on Diplomatic Relations,Footnote 12 including absolute personal immunity from criminal jurisdiction before the courts of the United Kingdom.Footnote 13 Sections 20(1) and (3) of the State Immunity Act and section 8(3) of the Immigration Act have the effect that, in addition to these privileges and immunities, these persons are exempt from normal United Kingdom immigration controls. This becomes clear from The State Immunity (Overseas Territories) Order 1979 which extends the scope of the State Immunity Act to British dependent territories and which provides in Schedule 2 that the reference in section 20(3) to ‘the exemption conferred by section 8(3) of the Immigration Act 1971’ shall be replaced with a reference to ‘exemption from immigration restrictions and regulations’.Footnote 14 Heads of State, their family members and private servants may thus enter the United Kingdom and dependent territories at any time without requiring leave to do so.Footnote 15 It was further accepted by the House of Lords in the Pinochet case that section 20(1)(a) of the State Immunity Act, when read with Article 39(2) of Schedule 1 to the Diplomatic Privileges Act 1964, conferred on former Heads of State immunity in respect of their official functions wherever these were carried out.Footnote 16
Section 20(3) of the State Immunity Act is in many respects an unusual provision.Footnote 17 The State Immunity Act was to make, inter alia, ‘new provision with respect to the immunities and privileges of Heads of State’.Footnote 18 During the deliberations of the Act in the House of Lords the Government explained that the position of such heads was governed by customary international law which had not yet been embodied in any international convention. The law lacked the precision which had been given to the law concerning practically all other persons who enjoyed international immunities and privileges, namely diplomats, consular officers and persons on diplomatic missions, by international conventions and United Kingdom legislation giving effect to them.Footnote 19 It was therefore suggested to take the immunities and privileges of Heads of State on the analogy of the immunities and privileges of heads of diplomatic missions, which were already covered by legislation in the Diplomatic Privileges Act 1964, and so could readily be attracted.Footnote 20 The State Immunity Act, section 20(1) thus provided for the application of the Diplomatic Privileges Act 1964 to Heads of State, members of their families and private servant in the same way as it applied to heads of diplomatic missions, their family members and their private servants. There is, however, an important difference between the two groups under international law. While the head and other members of diplomatic missions must be admitted to the receiving State and treated as exempt from immigration restrictions unless they have been declared persona non grata or unacceptable prior to their arrival,Footnote 21 Heads of State have no such right, either under treaty or customary international law, and may be refused entry by other States.Footnote 22 Heads of State who are not visiting by official invitation will usually require a visa. In the United Kingdom exemption from immigration control for members of diplomatic missions and their family members is given effect in section 8(3) of the Immigration Act 1971. In order to fully align the legal position of Heads of State with those of heads of diplomatic missions, section 20(3) of the State Immunity Act extends this exemption under the Immigration Act to Heads of State, their family members and private servants. But, it also provides for a safeguard clause, giving the Foreign Secretary the statutory power to direct the exclusion of any unwanted Head of State, their family members and private servants. This was necessary as otherwise the British Government would have had no means to prevent any serving Head of State who enjoyed immunities and privileges under section 20(1) of the State Immunity Act from entering the United Kingdom. Although there is no explanation in the Parliamentary record for the introduction of this clause it was said that at the time the Government was concerned about the position of Idi Amin, the unwanted President of Uganda, who had threatened from time to time to visit the United Kingdom.Footnote 23
Under section 20(3) only serving Heads of State enjoy exemption from immigration control.Footnote 24 This is in line with the position of former members of diplomatic missions which are also subject to immigration restrictions.Footnote 25 Members of the family of a Head of State forming part of his household seem to enjoy exemption from immigration control even if travelling to the United Kingdom on their own. On occasion, this has given rise to concerns that large numbers of members of the extended families of some foreign Heads of State can come to the United Kingdom without being subject to immigration control.Footnote 26 However, the exemption applies only to such family members who form ‘part of [the] household’ of the foreign Head of State. These will usually include spouses, dependent offspring under 18 or those over 18 if still in full time education, dependent relatives such as elderly parents and other close relatives who have no-one else to look after them.Footnote 27 There thus does not seem to have been a need expressly to mention in the Directions the grown-up sons of Colonel Qaddafi, Saif al Islam al-Qaddafi and Saadi al-Qaddafi, who, both in their late 30s, can no longer be considered as forming part of ‘his household’.
The Direction seemed to raise concerns as to the status of Colonel Qaddafi as Head of State of Libya, referring to ‘the significant factual uncertainty as to the current position and status of Colonel Mu'ammar al-Qaddafi’. It did not, however, openly call into question his status as the head of the ‘Libyan government’.Footnote 28 On the contrary, the Direction by the Secretary of State was only necessary because, in the view of the Foreign and Commonwealth Office, Colonel Qaddafi still qualified as Head of State of Libya under section 20(1) of the State Immunity Act—any exemption from immigration control under statute law being dependent upon him enjoying diplomatic privileges and immunities as Head of State. As becomes clear from the wording of the Direction itself, the motivation behind, and main aim of, the measure was to prevent members of the Qaddafi family including, but not limited to his sons Saif al Islam al-Qaddafi and Saadi al-Qaddafi, from fleeing to the United Kingdom. The Direction stated that ‘the United Kingdom should not provide a refuge for those who may be associated with the commission of such atrocities.’Footnote 29 Such a move was not surprising considering the close links between the Qaddafi family and the United Kingdom. The last thing the British Government wanted politically (and legally) in that situation was one of the Qaddafi family showing up in London. The Direction allowed immigration officials to turn members of the Qaddafi family away at the border. This was the first time the Secretary of State made express use of the power to direct the exclusion of a serving Head of State and his family from the United Kingdom.Footnote 30
The Direction of the Secretary of State was quickly superseded, at least with regard to the core members of the Qaddafi family, by paragraph 15 of Security Council resolution 1970 (2011), which required all United Nations Member States to take the necessary measures to prevent the entry into or transit though their territories of individuals listed in Annex I of the resolution, including Colonel Qaddafi and several members of his family.Footnote 31 The Resolution was given effect in the United Kingdom on 27 February 2011 by the Immigration (Designation of Travel Bans) (Amendment) Order 2011.Footnote 32
Contrary to Foreign Secretary William Hague's statement that he had revoked the ‘diplomatic immunity’ of Colonel Qaddafi, the Direction did not deprive Colonel Qaddafi, as Head of State of Libya, of his existing personal and functional immunity under the State Immunity Act 1978.Footnote 33 The same was true of the personal immunity enjoyed by members of his family forming part of his household. The State Immunity Act itself does not provide for any powers of the Foreign Secretary to revoke existing statutory immunities. The Foreign Secretary can, however, by way of a certificate provide conclusive evidence in court proceedings ‘as to the person or persons to be regarded […] as the head or government of a State’.Footnote 34 Any denial of immunity to Colonel Qaddafi by the United Kingdom, as long as he is still (recognized as) the Head of State of Libya, would constitute a violation of international law. As the International Court of Justice pointed out in the Arrest Warrant case: ‘certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal’.Footnote 35 Such Head of State immunity is a complete immunity attached to the person rendering him immune from all actions or prosecutions in the British courts. However, this does not mean, that he is also immune from the jurisdiction of international tribunals such as the International Criminal Court (ICC). On 26 February 2011, the Security Council referred the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the ICC,Footnote 36 who on 16 May 2011 applied to the Court's Pre-Trial Chamber for the issuance of arrest warrants for, inter alia, Colonel Qaddafi and his son Saif al Islam.Footnote 37 Warrants of arrest were issued by Pre-Trial Chamber I on 27 June 2011.Footnote 38
After a slow start rescuing British nationals from Libya and being outflanked by other States in speaking up for democratic change in that country,Footnote 39 the British Government at the end of February 2011 was taking a tougher line, calling on Colonel Qaddafi ‘to go and to go now’.Footnote 40 The Foreign Secretary creating the impression that he had ‘signed a directive revoking [Qaddafi's] diplomatic immunity in the United Kingdom’ may be seen as part of the British Government's tough talking, and might ultimately have contributed to Colonel Qaddafi's isolation.
C. Withdrawing Recognition from a Serving Head of State
The question that remains to be answered is whether the United Kingdom could and should have followed up Foreign Secretary William Hague's tentative questioning of Colonel Qaddafi's legal status with withdrawing his recognition as Head of State of Libya. The withdrawal of recognition must be distinguished from the suspension or severance of diplomatic relations. On 22 February 2011, Peru became the first country to suspend diplomatic relations with Qaddafi-controlled Libya;Footnote 41 a move followed since by several other countries, including Botswana and France.Footnote 42 The United Kingdom on 26 February 2011 temporarily suspended the operations of the British Embassy in Tripoli, but did not break off diplomatic relations. British interests in the Qaddafi-controlled parts of Libya were represented by Turkey until the suspension of the operation of the Turkish Embassy in Tripoli on 2 May 2011. While the British Government declared several Libyan diplomats loyal to Colonel Qaddafi, including the Libyan Ambassador Omar Jelban, persona non grata,Footnote 43 it did not ask the Libyan Embassy in London to suspend its operations.Footnote 44 Withdrawal of recognition goes much further than the absence of diplomatic relations, denying the person or persons concerned the status as the head or government of a State.
The move to shut the Qaddafi family out of the United Kingdom was taken, inter alia, in light of:
[T]he deep concern at the death of hundreds of civilians and the incitement of hostility and violence against the civilian population made from the highest level of the Libyan government, and the strong condemnation by the international community of the recent gross and systematic human rights violations committed in Libya.Footnote 45
Could this assessment also justify the withdrawal of recognition from the Libyan government under Colonel Qaddafi? There seems to be at least one precedent. When in 1966–1967 the Republican Government of Yemen under President Abdullah as-Sallal with the help of an Egyptian expeditionary force committed mass atrocities against dissident republican villages and royalist insurgents inside Yemen, Tunisia and Jordan in February 1967 withdrew their recognition of the Sallal Government. An official communiqué issued by the Jordanian Government on 18 February 1967 stated that Jordan had informed the Government at Sana'a three weeks earlier that recognition would be withdrawn ‘unless the Egyptian forces withdrew from Yemen, the Egyptian air raids on Yemen villages ceased, and measures were taken to grant the people of Yemen the right of self-determination’.Footnote 46 Tunisia similarly withdrew its recognition because of ‘the atrocities of the Egyptian expeditionary corps in Yemen committed with the connivances of President Sallal’.Footnote 47
Even gross and systematic violations of human rights by a government, however, do not automatically lead to its loss of status as a government in international law or make it any less a government than it would otherwise be.Footnote 48 As Foreign Secretary William Hague pointed out with regard to Libya: ‘one has to keep a distance from a dictator. We do have to do business though with countries we disagree with […], and we still have to do it.’Footnote 49 While a public statement announcing the de-recognition of Colonel Qaddafi may be a grand political gesture, it would have little practical effect on his government going beyond the sanctions already imposed in Security Council resolutions 1970 (2011) and 1973 (2011).Footnote 50 On the other hand, his de-recognition would amount to the burning of all bridges with the Qaddafi Government and cut all lines of communication with it. It might help to further de-legitimize his government in the eyes of the international community but may be counter-productive in practical terms,Footnote 51 and may even absolve him from the international obligations incumbant upon the Government of Libya.
Annex Directions pursuant to section 20(3) of the State Immunity Act 1978
Section 8(3) of the Immigration Act 1971 provides inter alia that the provisions of the Act relating to those who are not British citizens shall not apply to any person who is entitled to the like immunity from jurisdiction as is conferred by the Diplomatic Privileges Act 1964 on a diplomatic agent.
Section 20(1) of the State Immunity Act 1978 provides:
“Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to –
(a) a sovereign or other Head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his private household and to his private servants.”
Section 20(3) of the State Immunity Act 1978 provides:
“Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971.”
The effect of section 8(3) of the Immigration Act 1971 and sections 20(1) and (3) of the State Immunity Act 1978 is to exempt persons identified in section 20(1) of the State Immunity Act 1978 from normal United Kingdom immigration controls, subject to any direction to the contrary by the Secretary of State.
Having regard to the situation in Libya, which is a matter of grave concern, as reflected inter alia in the Press Statement of the UN Security Council on Libya of 22 February 2011 and resolution S-15/2 of the Human Rights Council on the situation of human rights in the Libyan Arab Jamahiriya of 25 February 2011,
Taking account of the significant factual uncertainty as to the current position and status of Colonel Mu'ammar al-Qaddafi, the deep concern at the deaths of hundreds of civilians and the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government, and the strong condemnation by the international community of the recent gross and systematic human rights violations committed in Libya,
Determined that the United Kingdom should not provide a refuge for those who may be associated with the commission of such atrocities,
Noting that the exemption from normal United Kingdom immigration controls provided for by section 8(3) of the Immigration Act 1971 and sections 20(1) and (3) of the State Immunity Act 1978 is to facilitate engagement between the United Kingdom and a foreign sovereign or other Head of State, subject to any direction to the contrary by the Secretary of State,
Pursuant to section 20(3) of the State Immunity Act 1978, I hereby direct that any exemption that has been or may otherwise be conferred by or under section 8(3) of the Immigration Act 1971 and section 20(3) of the State Immunity Act 1978 on Colonel Mu'ammar al-Qaddafi, members of his family forming part of his household (including, but not limited to, Saif al Islam al-Qaddafi and Saadi al-Qaddafi), and his private servants, shall not be so conferred or otherwise apply.
[Signed] William Hague
Rt. Hon. William Hague MP
Secretary of State for Foreign and Commonwealth Affairs
26 February 2011
