On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). 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 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.’
William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.
The revocation of 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 seem 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 Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. 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, 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.
Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.
Section 20(3) of the UK 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.’
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 enjoy the same privileges and immunities under the UK Diplomatic Privileges Act 1964 as the head of a diplomatic mission, members of his family forming part of his household and his private servants. This means that Colonel Qadhafi and his family members enjoy in the United Kingdom all the privileges and immunities laid down in Articles 29 to 36 of the 1961 Vienna Convention on Diplomatic Relations. Sections 20(1) and (3) of the State Immunity Act and section 8(3) of the Immigration Act have the effect that, in addition, these persons are exempt from normal United Kingdom immigration controls. They may thus enter the United Kingdom at any time without requiring leave to do so.
The Direction raises concerns as to the status of Colonel Qadhafi as head of State of Libya, referring to ‘the significant factual uncertainty as to the current position and status of Colonel Mu`ammar al-Qadhafi’. It does not, however, call into question his status as the head of the ‘Libyan government’. As becomes clear from the Direction, the motivation behind, and main aim of, the measure is to prevent members of the Qadhafi family including, but not limited to his sons Saif al Islam al-Qadhafi and Saadi al-Qadhafi, from fleeing to the Untied Kingdom. The Direction states that ‘the United Kingdom should not provide a refuge for those who may be associated with the commission of such atrocities.’ Such a move is not surprising considering the close links between the Qadhafi family and the United Kingdom. The last thing the British Government want politically (or legally) in the present situation is one of the Qadhafi family showing up in London. The ‘Directions pursuant to section 20(3) of the State Immunity Act 1978’ now allows immigration officials to turn members of the Qadhafi family away at border.
This measure has since been supplemented by paragraph 15 of Security Council resolution 1970 (2011), which requires all UN 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.
It should be noted that the Direction of the Foreign Secretary, on its own, does not deprive Colonel Qadhafi, as head of State of Libya, of his existing personal or functional immunity under the State Immunity Act 1978. The same is true of the personal immunity enjoyed by members of his family forming part of his household. The 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’ (section 21(a) Foreign Sovereign Immunities Act). Any denial of immunity to Colonel Qadhafi by the United Kingdom, as long as he is 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’ (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, para. 51). 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 will be immune from the jurisdiction of international tribunals such as the International Criminal Court (ICC) in The Hague. According to paragraph 4 of Security Council resolution 1970, the Prosecutor of the ICC has jurisdiction to investigate the situation in Libya since 15 February 2011.
After a slow start rescuing British nationals from Libya and being outflanked by other States in speaking up for democratic change in that country, the British Government is now taking a tougher line, calling on Colonel Qadhafi ‘to go and to go now’. The Foreign Secretary creating the impression that he has ‘signed a directive revoking [Qadhafi`s] diplomatic immunity in the United Kingdom’ may be seen as part of the British Government`s tough talking. and may ultimately contribute to Qadhafi`s isolation and accelerate his downfall. It is, however, a cheap political gesture rather than decisive action.
The question that remains to be answered is whether the United Kingdom could and should withdraw its recognition from Colonel Qadhafi as head of State of Libya. The withdrawal of recognition must thereby be distinguished from the severance of diplomatic relations. On 22 February 2011, Peru became the first country to suspend diplomatic relations with Libya. A move followed since by several other countries, including Botswana, France, and Canada. Withdrawal of recognition, however, 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 Qadhafi family out of the United Kingdom was taken, inter alia, in light of
‘the 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.’
Could this assessment also justify the withdrawal of recognition from the present Libyan government under Colonel Qadhafi? 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 communique 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’. Tunisia similarly withdrew its recognition because of ‘the atrocities of the Egyptian expeditionary corps in Yemen committed with the connivances of President Sallal’.
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. 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.’ While a public announcement to withdraw recognition from Colonel Qadhafi and his government may be a grand political gesture, it would have little practical effect going beyond the sanctions already imposed on Libya in Security Council resolution 1970 (2011). It might help to further de-legitimize his government in the eyes of the international community but may be counter-productive in practical terms.