Flatow
v.
Islamic Republic of Iran
999
F.Supp. 1 (1998); 121 ILR, p. 618.
i m m u n i t i e s f r o m j u r i s d i c t i o n
737
immunity with regard to a head of state and this would be binding on the
courts.
216
Secondly, international law has traditionally made a distinction be-
tween the official and private acts of a head of state.
217
In the case of civil
proceedings, this means that a head of state may be susceptible to the ju-
risdiction where the question concerns purely private acts as distinct from
acts undertaken in exercise or ostensible exercise of public authority.
218
Thirdly, serving heads of state benefit from absolute immunity from
the exercise of the jurisdiction of a foreign domestic court.
219
This was
reaffirmed in
Ex parte Pinochet (No. 3)
. Lord Browne-Wilkinson, for ex-
ample, noted that, ‘This immunity enjoyed by a head of state in power and
an ambassador in post is a complete immunity attaching to the person
of the head of state or ambassador and rendering him immune from all
actions or prosecutions whether or not they relate to matters done for
the benefit of the state.’
220
Lord Hope referred to the ‘
jus cogens
character
of the immunity enjoyed by serving heads of state
ratione personae
’.
221
This approach affirming the immunity of a serving head of state is en-
dorsed by the decision of the French Cour de Cassation in the
Ghaddafi
case.
222
In
Tachiona
v.
USA
, the Court of Appeals for the Second Circuit,
although deciding the issue as to the immunity of President Mugabe of
Zimbabwe on the basis of diplomatic immunity, expressly doubted that
the Foreign Sovereign Immunities Act was meant to change the common
216
948 F.Supp. 1107 (1996); 121 ILR, p. 577.
217
See e.g. Draft Articles with Commentary on Jurisdictional Immunities, ILC Report, 1991,
A/46/10, pp. 12, 15, 18 and 22.
218
See e.g.
Republic of the Philippines
v.
Marcos (No. 1)
, 806 F.2d 344 (1986); 81 ILR, p. 581;
Jimenez
v.
Aristeguieta
33 ILR, p. 353;
Lafontant
v.
Aristide
103 ILR, pp. 581, 585 and
Mobutu and Republic of Zaire
v.
Soci´et´e Logrine
113 ILR, p. 481. See also Watts, ‘Legal
Position’, pp. 54 ff.
219
See e.g. Watts, ‘Legal Position’, p. 54. See also
Djibouti
v.
France
, ICJ Reports, 2008, paras.
170 ff.
220
[2000] 1 AC 147, 201–2; 119 ILR, p. 135.
221
[2000] 1 AC 244. See also Lord Goff at 210; Lord Saville at 265 and Lord Millett at 269.
See also the decision of 12 February 2003 of the Belgian Court of Cassation in
HSA
et al.
v.
SA et al.
, No. P. 02.1139. F/1, affirming the immunity of Prime Minister Sharon
of Israel.
222
Arrˆet no. 1414, 14 March 2001, Cass. Crim. 1. See e.g. S. Zappal`a, ‘Do Heads of State in
Office Enjoy Immunity from Jurisdiction for International Crimes? The
Ghaddafi
Case
Before the French Cour de Cassation’, 12 EJIL, 2001, p. 595. See also
Tatchell
v.
Mugabe
,
unreported decision of the Bow Street Magistrates’ Court, 14 January 2004, affirming the
absolute immunity of President Mugabe, the Head of State of Zimbabwe.
738
i n t e r nat i o na l l aw
law of head of state immunity,
223
a proposition affirmed in earlier
case-law.
224
Fourthly, the immunity of a former head of state differs in that it
may be seen as moving from a status immunity (
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