15 May What kind of immunity does the IMF Managing Director Have?
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.