Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation

Salvatore Zappalà^*

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Abstract

In this paper, which comments upon a recent decision of the French Cour de Cassation, an attempt is made to offer an evaluation of the status of international customary law on the question of jurisdictional immunity of Heads of State. It is submitted that under international customary law Heads of State (like other state officials) do not benefit from functional immunity for international crimes. Some acts of terrorism may have become international crimes under customary law and, consequently, exclude the operation of functional immunity for Heads of State. On the other hand, personal immunity should be considered as an appropriate protection for Heads of State, as it ensures virtually absolute immunity while the Head of State is in office (but ceases with the termination of official functions).

* PhD, European University Institute; Junior Lecturer in International Law, University of Pisa.

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