Huffington Post Op Ed 6/22/11

Dominique Strauss-Kahn (“DSK”) is accused of sexual attack on a hotel chambermaid. But will his status as the IMF head allow him to wriggle out from under criminal prosecution in New York by claiming immunity?

Theoretically, DSK would have two available types of immunities: status-based immunity and conduct-based immunity. These immunities are significantly different in the extent of protection they confer. However, the broader scoped status-based immunity is applicable only to a narrowly defined group, such as heads of state and diplomats. Conduct-based immunity is much more limited in scope as it confers immunity only to official acts.

The 1947 Convention on the Privileges and Immunities of the Specialized Agencies might have granted DSK immunity from prosecution as it provides that “the executive head of each specialized agency… shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.” Nonetheless, it would have been unthinkable that the IMF would raise that immunity, because another section provides that “[e]ach specialized agency shall have the right and duty to waive the immunity of any official in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the specialized agency.” However, such analysis is moot because the United States is not a signatory to that treaty.

U.S federal law grants international organizations immunity for their officers and employees only for “acts performed by them in their official capacity.” So that door is closed for DSK as well. The U.S Supreme Court denied Mohamed Ali Samantar’s claim of immunity, from a lawsuit in the United States for alleged torture and human rights abuses, based on the Foreign Sovereign Immunities Act. Samantar claimed that as Somalia’s former defense minister in the 1980s and then as prime minister from 1987 to 1990, he was invested with immunity. The U.S. Supreme Court disagreed. However, the Supreme Court left open the door for the lower court to consider “[W]hether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses was entitled to immunity…”

Can the IMF claim functional immunity on DSK’s behalf?

In order to claim functional immunity, the IMF would have to argue that the alleged sexual attack was within DSK’s functions as head of the IMF. The facts as described in the media indicate that DSK’s alleged conduct could not support an argument that he was doing his job for the IMF, a prerequisite to granting immunity, because there must be a close connection between DSK’s duties and his conduct. Indeed, the IMF has announced that DSK’s immunities “are limited and are not applicable to this case.” Nonetheless, there are officials of international organizations, such as the Secretary General and Assistant Secretaries General of the UN, that enjoy the same privileges and immunities as diplomats do under the Vienna Diplomatic Relations Convention, which grants an almost absolute immunity in most criminal cases. However, DSK is not included in that short list of select officials.

The United States Court of Appeals for the Second Circuit in Brzak v. United Nations, dismissed a complaint against three former U.N. officials for alleged sex discrimination, holding that they had functional immunity as a matter of treaty and statute. The court reasoned the complaint’s dismissal by indicating that the lawsuit was based on the U.N. officials’ alleged abuse of authority in the workplace and “personnel management decisions falling within the ambit of the defendants’ professional responsibilities. There’s only one other source of potential immunity: the IMF Articles of Agreement. Said agreement provides that IMF employees, “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.”

Since the IMF Articles of Agreement are narrow and include only acts performed in the employee’s “official capacity” they clearly distinguish that immunity from the absolute immunity of diplomats, and resemble more closely the narrower immunity of consuls. Within the realm of U.S. law, the International Organizations Immunity Act generally approximates, in the degree of immunity conferred for international organization officers and employees, the consular immunity granted under the Vienna Convention for Consular Relations. Both limit the reach of immunity to acts performed under official capacity only.

What constitutes an official act? The State Department’s directives guide law enforcement agencies as follows:

As indicated, official acts immunity pertains in numerous different circumstances. No law enforcement officer, State Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the U.S. Department of State before arresting a consular officer, or, if not possible, immediately after arrest.

Therefore, it is still possible that DSK’s attorney could attempt raising the issue of such immunity which negates the Court’s subject matter jurisdiction to hear the case, although DSK is unlikely to succeed using that defense.

Does DSK have diplomatic immunity under customary international law?

It is an acceptable norm that international organizations have immunity under customary international law in addition to their treaty based immunities. That principle has been affirmed by the United States Court of Appeals for the District of Columbia Circuit in Mendaro v. World Bank:

One of the most important protections granted to international organizations is immunity from suits by employees of the organization in actions arising out of the employment relationship. Courts of several nationalities have traditionally recognized this immunity, and it is now an accepted doctrine of customary international law.

Since DSK was not an official envoy of France accredited to the United States or to international organizations (and in that case he was likely to be immune under the 1961 Vienna Convention on Diplomatic Relations), but rather a head of an international organization, he was covered, if at all, by the much narrower Specialized Agencies Convention which regards only acts performed in an “official capacity” as immune. Even if DSK would attempt to argue that the much broader immunities principles in the 1946 UN General Convention on Privileges and Immunities are applicable to his case, it would be a too great a leap for the court to accept because these treaties are significantly different in the scope of immunity they confer.

Therefore, it appears that DSK does not have status-based immunity (commonly referred to as “diplomatic immunity”) or immunity as a head of the International Monetary Fund, a position that potentially could confer him with “functional immunity,” and will be tried like all other defendants under similar circumstances.