What kind of immunity does the IMF Managing Director Have?

by Duncan Hollis

The arrest on sexual assault charges of IMF Managing Director Dominique Strauss-Khan (or “DSK” as he’s known to the French tabloids) is big news this morning. Most of the main stream media attention (quite naturally) has focused on the salacious allegations themselves and/or DSK’s potential presidential ambitions back in France. Here at Opinio Juris, however, I’m sure I was not the only one whose first thought went to the immunity question — namely did officers of the Port Authority of New York and New Jersey detain DSK consistent with federal and international law? 

International Organizational immunity is a complicated topic given its tendency to operate by analogy to the more established concepts of diplomatic and consular immunity.  The relevant U.S. law, the International Organizations Immunity Act (IOIA), 22 U.S.C. 881, generally tracks consular immunity for international organization officers and employees. Thus, 22 USC 881d(b) provides:

(b) Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.

This approach mimics that taken in the IMF’s own Articles of Agreement.  Section IX(8) provides that officers of the IMF and employees of the Fund “(i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” 

Thus, it seems at first glance DSK is entitled only to official acts immunity, barring a waiver by the IMF (and I don’t think their current “no comment” can be read as a waiver here).  This would beg the question of what he was doing in New York on Saturday?  Was he there for some meeting?  Was he “in transit” to his planned Sunday meeting with German Chancellor Merkel?  Or, was he just enjoying a spring weekend in the Big Apple?  Ultimately, what qualifies as an “official act” is a tricky topic that will ultimately require us to know more facts. 

But, before we all assume official acts immunity is the governing framework, there’s a complicating factor — could DSK actually have diplomatic immunity?  Not all international organization officials are subject to official acts immunity, some of the most senior (see, e.g., the Secretary General and Assistant Secretaries General of the UN, senior OAS officials) get the same privileges and immunities as diplomats, meaning that they are absolutely immune in almost all cases from criminal arrest or civil suit.  And, at least some members of the IMF get this treatment as well.  The IMF is a specialized agency of the United Nations and the United Nations and the United States have a long-standing “Headquarters Agreement” that governs U.S. treatment of UN representatives and personnel. Article 15 of that agreement provides that

“principal resident representatives of members of a specialized agency and such resident members of the staffs of representatives of a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of the United States and the Government of the Member concerned, shall whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.”

Thus, if DSK were a “principal resident representative” (PRR) of the IMF, he might actually be immune from arrest entirely.  I’m guessing he does not qualify because he’s not representing anyone other than the IMF as its Managing Director.  But that creates the rather odd result that a lesser IMF official might have absolute/diplomatic immunity denied to the titular head of the IMF (on the other hand, PRR immunity might be deemed more a function of the respect due the sovereign states these individuals represent rather than anything derived from their service to the IMF itself).

So, what do others think?  Can DSK claim anything other than official acts immunity?  If he does claim that status, how broadly should a court read what counts as “official” here?  And, to be clear, this will likely be a question for a U.S. court to resolve — as the State Department’s guidance to law enforcement makes clear on the question of what constitutes an “official act”:

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. 

There’s obviously a lot more that could be said (I’ve not touched on the “official acts” case law in the U.S. or elsewhere, nor have I analyzed whether the Convention on Privileges and Immunities of the United Nations (to which the United States is a party) would apply.  I hope some of the commentators can help further clarify these and other relevant issues.

http://opiniojuris.org/2011/05/15/what-kind-of-immunity-does-the-imf-managing-director-have/

13 Responses

  1. I have been able to come up only with two legal sources (not case law) which seem to address different situations.

    1. The IMF’s own statutory policy (if such wording is not deemed oxymoronic: contraposition statutes <-> policy) was worded and put down in 2002, and only seems to address diplomatic acts immunity:

    http://www.imf.org/external/pubs/ft/sd/index.asp?decision=DN11

    2. Unter international law however (United Nations Convention on the Privileges and Immunities of the Specialized Agencies and Annex V), while it does also address diplomatic acts immunity, and extends this to member representatives of the IMF’s member parties, on official duty or mission, there is also a mention of the personal inviolability (immunitas quoad personam) of the executive head of (inter alia) the IMF.

    SECTION 21
    In addition to the immunities and privileges specified in Sections 19 and 20, the executive head of each specialized agency, including any official acting on his behalf during his absence from duty, 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.
    http://www.imf.org/external/pubs/ft/sd/index.asp?decision=DN22

  2. Why would this matter?  I’ve never heard of the French being soft on charges of rape.  If he has immunity, they’ll waive it.

  3. Response…Anyone want to bet U.S. tax payers subsidized his $3K a night hotel suite?

  4. Well, wouldn’t he and/or France have to claim diplomatic immunity for DSK for this debate to be anything more than academic?  Although I suppose an academic debate is the idea here, I don’t see any indication that he is claiming diplomatic immunity.  And even if he did, wouldn’t France have to affirm that claim?  I highly doubt that a government headed by this man’s principal political rival will allow such a claim.

  5. What official duty qualifies the individual in question to contemplate and possibly execute criminal acts? I can’t read into the IOIA clause presented above any immunity for criminal acts not related to “official” duties, and attempted rape does not qualify, in my opinion, as a valid official duty for anyone in this country or any other country for that matter.

  6. Michael, kindly re-read my comment above, the first in line, that has endeavoured to answer Duncan Hollis’ question by quoting the pertinent regulation. It shows why your question might not be conducive to an answer.

    To law blog reader: it is the other way around. Diplomatic immunity exists primarily for an institutional purpose. That’s why it need not be invoked to exert its block to prosecution; on the contrary, it would have to be expressedly waived. And waived not by the individual, but by the state or institution that is protected. Which is not France, here; but the IMF.

  7. John David Galt @5-15-11

    French nationals [military or otherwise] assigned to UN Peacekeeping missions seem to get by without prosecution when running brothels, child or otherwise.  High French officials seem to manage to avoid prosecution for crimes almost as readily as American officials.

    I am not ruling out a claim of immunity, and its acceptance by the administration as an act of professional courtesy.

  8. I doubt either France or the IMF will want to claim diplomatic immunity for DSK, for three reasons:
    1) France is run by DSK’s main rival.
    2) Given the evidence of assault, given DSK’s prior admission of bad judgment in a sexual affair that embarrassed the IMF, and given the non-involvement of DSK’s political enemies, even DSK’s supporters don’t believe he is innocent.
    3) The IMF won’t want to spend its political capital on defending DSK; indeed, the IMF Board has already rushed to publicly appoint deputy Lipsky as acting Managing Director

  9. DSK’s nationality is irrelevant. He does not represent
    France, he is an international civil servant. And if he
    does have immunity, it would need to be waived by the
    IMF. Who can act for the IMF? The Executive Head, who
    happens to be DSK. Unless he delegated his duties while
    apparently on official travel to his deputy.

    International organizations almost always waive immunity.
    Countries almost never waive immunity, they withdraw the diplomat.

    If the $3000 for the hotel suite looks high to anyone, wait
    until the legal bills start coming in for these fascinating
    and lucrative legal questions.

    Frank Peel
    former Member NY Bar
    former Assistant Legal Adviser ILO

  10. the proper way would have been inform the imf of the charges and the evidence and wait for the imf to waive the immunity which they would of course have done. No International Organisation (especially where the US is a member) would have insisted on immunity.
    It would be undermining the functionality of any embassy or international organisation if local law enforcement could determine what charges are protected or not protected by immunity. Imagine diplomats and UN staff all over the world being falsely accused of rape or other serious crimes when they do something that does not please the host State. Therefore, fromout an international law point of view DSK clearly enjoyed immunity and should not have been arrested without a prior waiver thereof issued by the IMF. The arrest as it happened undermined international law and also potentially endangers diplomats and international civil servants all over the world, and potentially also US interests. Remember the  US ‘diplomat’ recently charged with murder in Pakistan! This is even more the case as DSK was not heading towards a country that would not have extradited him nor was it likely at all that the IMF would not waive his immunity.

  11. FWIW, I’m pretty sure Le Figaro calls him DSK on its website, too. So maybe that is just what everyone calls him in France?

    For me this raises a much greater question about the fundamental unaccountability of international organisations. Moreno-Ocampo, DSK and the second-last head of the World Bank all committed ‘errors of judgement’ that would have seen an equivalent private-sector manager sacked in days, if not pre-emptively resigning in shame.

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