Why Has DSK Not Yet Asserted Immunity? Because He Can’t.

by Chimene Keitner

Many thanks to Duncan for his great post on Dominique Strauss-Kahn’s (DSK) potential immunity, and for inviting me to follow up. My short answer: status-based immunity (often referred to as “diplomatic immunity”) is not available. Conduct-based immunity (also called “official acts” or “functional” immunity) is not available either. Here’s why.

The only type of immunity that would benefit DSK would be status-based immunity; that is, immunity based on his position as executive head of the IMF. The BBC has quoted Jovan Kurbalija, the director of DiploFoundation, as saying that DSK might enjoy absolute immunity by virtue of his status as the executive head of an international organization under the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. However, the United States is not a party to that treaty. This means that the IMF cannot invoke article 6(21) of that treaty, which 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.” In any event, as others have indicated, the IMF would not likely assert such immunity, particularly since article 6(22) of the same treaty 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.”

As Duncan points out, the governing statutory provision in the United States, 22 USC § 288d(b), does not provide for executive head immunity, and instead entitles international organizations to claim immunity for their officers and employees only for “acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees.” Because the United States is not party to the 1947 treaty, the only way the IMF could attempt to invoke status-based immunity would be by arguing that article 6(21) of the treaty represents customary international law, and that the omission of this provision in 22 USC § 288d(b) does not indicate a congressional intent to depart from that custom.

There is no doubt that subjecting DSK to prosecution will interfere with his ability to conduct business on behalf of the IMF, although an acting managing director stepped in upon news of his arrest. If the IMF were entitled to assert status-based immunity on DSK’s behalf, the IMF would have to weigh the impact on its own operations, among other factors, in deciding whether to assert or waive it. However, there does not appear to be any status-based immunity for the IMF to either assert or waive. In this sense, media headlines confirming that DSK does not have “diplomatic immunity” are unremarkable; the issue is whether or not the IMF could claim functional immunity on DSK’s behalf.

In order to claim functional immunity, the IMF would have to argue that alleged the attack fell within DSK’s functions as head of the IMF. Even if the IMF were paying for DSK’s $3,000 per night hotel room while he visited his daughter in NYC (or whatever he was doing there), it is difficult to see how DSK’s alleged conduct could benefit from any type of conduct-based immunity, which is modeled on consular immunity and requires a close nexus with the official’s job duties or at least the exercise of apparent (even if not actual) authority. Whether or not DSK was “in transit” to an IMF meeting, or even in New York on official IMF business, is irrelevant in this context. Interacting with a maid in a hotel room is not an official function, even if you are on a business trip. (I say “interacting with” rather than “attacking” because certain unlawful acts might still fall within the scope of conduct-based immunity, depending on the circumstances.) The absence of functional immunity was confirmed by IMF spokesman William Murray, who has indicated that DSK’s immunities “are limited and are not applicable to this case.”

The difference between the scope of status-based immunity and conduct-based immunity is significant. Status-based immunity is limited to a very narrow category of individuals, including sitting heads of state and diplomats, to preserve their ability to engage in international relations on behalf of the states they represent. The scope of conduct-based immunity is more limited, and thus more often contested. Last year, the Second Circuit held in Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010), cert denied 131 S. Ct. 151 (Oct. 4, 2010), that three former U.N. officials enjoyed functional immunity as a matter of treaty and statute for alleged sex discrimination in working conditions and workplace retaliation against the plaintiffs for pursuing a complaint. This holding was grounded in the observation that the suit was based on the defendants’ alleged “abuse of authority in the workplace” (as characterized by the district court) and “personnel management decisions falling within the ambit of the defendants’ professional responsibilities” (as characterized by the Second Circuit). Because there was no federal subject-matter jurisdiction over these claims, the Second Circuit did not reach the question of whether the plaintiff’s state tort law claim for battery (relating to an alleged improper touching during a 2003 meeting in Geneva) would fall within the scope of a former official’s functional immunity.

Under the current state of the law, it does not appear that the IMF has any grounds to assert immunity for DSK, even if it were inclined to do so (which it clearly is not). Moreover, thanks to Roman Polanski, DSK will have to spend at least some time at Riker’s Island. Is it possible that the whole affair is a set-up by DSK’s political opponents in France? Unless we see a plea deal, a New York jury will decide.

http://opiniojuris.org/2011/05/17/why-has-dsk-not-yet-asserted-immunity-because-he-can%e2%80%99t/

17 Responses

  1. Chimene, thanks for explaining this – really clear and really interesting.

  2. An astonishing posting. Kurt Taylor Gaubatz has – in his blog – taken up the same issue, but he did it in a more convincing way. He began with a strong (in the sense of valid, not in the sense of loud) statement: namely, that the states are the ultimate arbiters of international law. That is very true, at least after 1648. But we must assess in which sense it is true:
    Gaubatz makes a good point in showing that the USA is not a signatory party to the relevant international convention. Neither is North Korea. Indeed.
    (Albania and South Africa, two countries that for a long time held a comparable position in the international community, only joined in 2003 and 2002 respectively.)
    That two states of comparable moral standing and incomparable standing in most other respects still do not recognize an otherwise near universally signed and respected convention, does NOT allow to conclude, as Keitner does in a remarkable short circuit, that diplomatic immunity under this caput would not exist. It only means that a few rogue states will take their liberty to not respect what otherwise is universally acknowledged treaty and also (!) has meanwhile become customary international law. They can do so, without much risk. The last times that British marines landed a punitive expedition and burned Washington was 197 years ago, I believe.

    Let me demonstrate the real legal issue to bit more colourfully: The principality of Darker Ruritania could also take the liberty of burning the US ambassador on the stake for disrespectfully handling a banknote with the sovereign’s portrait. Does that mean that the envoy – up to his untimely death – did not enjoy diplomatic immunity ratione personae? No, such a conclusion would not be licit. Yet this is Keitner’s fallacious argument.

    Whether IMF would be well advised to waive DSK’s existing status immunity, is a second and totally different issue, which must not be conflated with the first argument. In Gaubatz’ opinion and in mine, it would indeed be a wise choice. Actually, an absolutely pressing choice if the IMF wants to remain at all functional in the exercise of its mandate. Not because of DSK, who might well be looking forwarding to some time behind bars, but because of the crucial importance of the legal principle.

    Functional immunity (ratione actus) is hardly pertinent here, and is a straw argument in any case, since it is not needed for the heads of these (few) international organisations.

  3. Chimene,

    i am not quite sure, if 22 U.S.C § 288d is really the “governing provision” in relation to a functional immunity of DSK. At least its not the first that would have come to my mind, from an international law perspective.

    In fact, DSK enjoys functional immunity eo ipso under international law of treaties:
    Section 8, Articles of Agreement of the IMF (ratified 1972) is  self-executing and therefor directly applicable by the court.
    In the for-mentioned “Brzak vs. UN”, the court has suggested hat CPIUN supersedes (being lex specialis) the provisions of 28 U.S.C § 1602-11.
    In analogy, the same would apply to AoA IMF in relation to 22 U.S.C § 288d.

    Of course this doesn’t change the fact, that his prosecution in the matter – as you demonstrated – falls not within the scope of functional immunity.

    Ian

    ……………………….
    Articles of Agreement of the International Monetary Fund Section 8:

    “All Governors, Executive Directors, […] and employees of the Fund [...] shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity;”
    —————————

  4. I think we may properly doubt that any argument emanating from someone who believes that the United States and North Korea are “of comparable moral standing” is worth a rational being’s attention.

  5. “That two states of comparable moral standing and incomparable standing in most other respects still do not recognize an otherwise near universally signed and respected convention, does NOT allow to conclude, as Keitner does in a remarkable short circuit, that diplomatic immunity under this caput would not exist.”

    That the United States is not a signatory to a treaty allows us to conclude that the treaty does not apply in American courts. There is no short circuit here. The purpose of American courts is to enforce American laws within our borders–not to enforce international law contrary to the will of Congress.

    That the US and North Korea, as nation-states, are of comparable moral standing, is a claim you are invited to defend. Start with pictures of the US prisons where the families of political activists are tortured to make them confess. Unless you can do that, the attempt to sketch all “rogue states”–apparently this means states which agree to different treaties than you would like them to–with the same cartoonishly oversimplified caricature fails.

    The head of the IMF is no ambassador, which is the whole point here. So your colorful example in which Darker Ruritania kills an ambassador for les mageste has no relevance. Even if that were to happen, though, the proper response would be outrage over the barbaric penalty for a victimless crime, not outrage over a breach of international law. You have the cart before the horse. International law is an instrument for promoting justice, not the other way around.

    Having the cart before the horse can make it hard to tell which way you are going. It seems likely that DSK sexually assaulted a young woman in New York. If you really believe that international law protects him from prosecution for this, solely because he is the head of an agency, shouldn’t you be trying to change international law? Isn’t it more important that international law protect the weak from abuse than that it be adopted in full by every nation? Yet most of its boosters seem to have more urgency about the latter goal.

  6. I wish someone would forward this post to Greg Jarrett at Fox News.  He was on TV all day yesterday pontificating on how the 1947 Convention would provide DKS with immunity, seemingly unaware the US is not a party.

  7. I think we need to raise one level of abstraction on this. If it were beneficial to the present administration and to the IMF to get DSK out of the country and back to relative safety in France, the IMF would assert immunity, the US administration would grant it, and DSK would be on a plane back to Paris in about 20 minutes. Only later would it be found that there was no real basis for immunity, a great amount of “Oh gee, we missed that, so sad, too bad” would be spread around, and possible one lower-level US functionary would be sacrificed on the altar of Public Opinion. (Thus showing Washington and the Mayans had something in common in the abstract)
    As long as the mud that splatters from this falls only on the French and the IMF, the administration will be more than happy to keep DSK in his proper location. Prison. If it looks like the splatter will start to hit anybody important in Washington (which I don’t see it happening), he will be out of here faster than you can get a film crew to the airport.

  8. From United States v Enger 472 F.Supp.490, 503 (D.N.J. 1978) regarding official acts immunity:
     
    It is the work rather than the official which is protected, with the result that such officials must obey all ordinary laws governing their private actions.
     
    The fact that the United Nations has its headquarters in the United States requires a large number of foreign government representatives and foreign national employees to reside in the New York City area for substantial periods of time.  From the standpoint of providing diplomatic immunity, it would be impractical for all concerned if each of those individuals had to be “approved” by the United States in advance.  The accommodation reached is not to afford all such foreign nationals full immunity status.  Rather, it is to permit the foreign government or international organization to undertake the selection of representatives and employees but, as a means of protecting this country’s interests, to limit the availability and scope of immunity.  

    Accordingly, under the Headquarters Agreement and 22 U.S.C. § 288d(b), only a limited number of persons may receive full immunity and then only after prior government approval; all others are cloaked with immunity only when acting within the scope of their employment.  As stated in United States ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425, 437 (S.D.N.Y.1963), a contrary approach would lead to the untenable result that:
     
    “A member state of the United Nations which may be hostile to our interests would be free to send to the United States individuals designated as resident members of their staffs, to engage in conduct destructive of our national interest and security and yet have them protected from criminal prosecution on the theory that their designated status cloaked them with diplomatic immunity.  It would open the flood gates for the entry of saboteurs, agents provocateur and others under a built-in guarantee that no matter what the criminal conduct, the Government would not prosecute them.”
     
    This is precisely the weakness of the position taken by the defendants here.  Were I to find the defendants immune from prosecution, it would be a simple matter in subsequent cases for hostile governments to confer diplomatic rank on its intelligence agents and install them as lower-echelon employees of international organizations based in the United States, secure in the knowledge that if their illegal activities were discovered they could not be prosecuted.

  9. Georg, you may not be aware that the US is a Federal country, and what’s good for the President doesn’t necessarily carry any weight with the States…complex, I know.

    I think Chimene’s analysis is very convincing.

  10. David W.’s last argument is convincing and well-argued, but it simply does not meet the case here, so it is moot. No such position as alleged in the last paragraph has been taken by any “defendant” either. (I still like David’s posting for didactic purposes though, because it very well outlays and colours the issues surrounding functional immunity / immunity of diplomatic acts; which are hardly involved here. In the decision, the secondarily discussed “full immunity” for not many, but still a number of residing higher-ranking officials and bureaucrats is a *granted” imunity that is bilaterally conceded for reasons of expendiency and courtesy, in the form of an individual approval. It is not the full personal immunity of the heads of only a few highest-level international organisations and agencies, which would be DSK’S case.)

    Georg Felis has aptly commented on the political aspect of the whole affair. I am inclined to concur with his assessment, on the factual side.
    - Contrary to the musings of the last poster, a status of immunity under international law is firstly to be recognised by the federation that represents the US of A jointly, not by an individual state.
    - The second dogmatic step is how a state will implement this finding which *is* however binding it, and what measures it will take or not take to honour it.
    - How and by which means – thirdly – the federal government may coerce a recalcitrant state, is a constant topic of US constitutional law since centuries, into which I am not willing to delve. Suffice that if the state of Texas chose to arrest and try the ambassador of Lighter Ruritania (I shall this time use the lovely sister state, it’s so endearing) for crimes against Texan sexual crime laws with his own wife in the privacy of his own bedroom, all those outdated and thoroughly un-American “diplomatic immunities” and similar ho-hum notwithstanding, you can expect that the federal government *will* intervene. I shall leave it to US constitutionalists to explain or debate in which form this is or can be done, my viewpoint here is strictly international law.

    Nathan’s animadversion is valid. International law is not cast in iron. It is neither writ in water. A strong state or a rogue state (the two may be identical, but need not) can more easily disregard it than a weak and dependent state. What Nathan here challenges – and such a challenge is eminently licit – is the concept of personal immunity as such. It has been abused in the past, but its foundation lies not in personal privilege, and its root lies in a no longer feudal political system (as I wrote, post-1648). The extension of the – in my opinion still utterly necessary and indispensable – personal immunity from ambassadors to heads of some international organisations is necessary, even via an argument of a minore a maius. The reason is protection of an institution, and a multi-party powerful organisation is a lot more prone to attacks than, say, a Pacific island state or the co-principality of Andorra. This is actually far more true for the IMF specifically than for many other organisations of lesser impact and weight.
    And this also allows to answer to Nathan’s last rhetorically questioning sentence properly. It is indeed not the purpose of *international law* to protect helpless poor black young chambermaids against the wanton attacks of lecherous rich white old satyrs.  It is the purpose of international law (including the régime of immunities) to protect institutions and their functionality – even if they were sadly to be headed by lecherous old satyrs (not any longer, thank the Lord – he has just resigned).

    Ian is the only one who has properly pointed out the weakness inherent in my position, and I am reversely properly indebted to him for that. If one finds that the USA have chosen and still choose to not become a signatory of an otherwise near-universally acclaimed treaty, then US courts will indeed be not very likely to apply such treaty domestically. Notably not if younger concurrent national legislation makes clear – such as Ian quotes – that the very issue in question is recognized domestically only in a much watered-down form. (Side note: I am not sure why Common Lawyers seem have such difficulties in distinguishing the two levels of a vigent law and an applied law, or in distinguishing what *is* international law firstly , and what its national reflection or application is secondly. We are discussing the former here. Appalachia suas habet leges.)

    Back to the inherent weakness of my argument. If the treaty has not been domesticated, then the only claim for its effect on a national (federal and state court) level, would be to demonstrate that is has – firstly – become customary international law, and that – secondly – the national legal régime provides for such reception and recognition of customary international law.
    There is a temptation – and dare I say a danger – to projects one’s very own favourite legal concepts and fads of the year into such a wish-definition of what should constitute customarily accepted international law. Swings, moods and political correctness (who wants to protect a torturing tyrant’s minions after his reign of terror is over? Keitner certainly not, as her amicus curiae brief before the Supreme Court in Samantar v. Yousuf has made clear) can influence that.
    I actually believe that great reticence and patience ought to be applied before one argues a legal institute to have become part of the arsenal of customary international law, but maybe this my position might be too conservative…?

  11. Oh, one note on the IMF spokesman WIlliam Murray who is not a jurist (and in his position probably should not be), and who under a siege barrage of oral questions had spontaneously issued this one unfortunate quip which Keitner has quoted.
    After he realized how prematurely he had jeopardized the IMF’s position, he backpedalled immediately and retracted his earlier misformulation into a firmer “no comment at all” (found on the IMF website, text immediately above the aforequoted one, the link to it is in Gaubatz’ blog, I cannot post the link directly without delaying the publication):

    The following can be attributed to William Murray, an IMF spokesman, in response to questions regarding contact with the Managing Director and on speculation in media about his status:
    “… We are aware of widespread speculation about the Managing Director’s status. We have no comment on this speculation,”

  12. Many thanks to all for this interesting chain of comments. I did suggest in my initial post that, because DSK cannot claim status immunity under any treaty to which the US is a party, he would have to claim any such immunity under customary international law instead. Although I am of the view that widespread ratification of treaties is important in ascertaining the content of CIL (see, e.g., Keitner, “Cheap Talk” about Customary International Law, in Sloss, Ramsey, Dodge, eds., The US Supreme Court and International Law: Continuity and Change, pp. 494-98), I do not think it is sufficient in all cases; otherwise, this would obliterate the distinction between parties and non-parties. In any event, I invite readers to continue weighing in, and also to refer to the similar conversation going on over at EJIL Talk!, which also discusses the IMF’s apparent decision not to claim status immunity and then waive it.

  13. Alexander, thanks for your interesting post. Your point that international law exists, in part, to protect international institutions is well taken. To this end, nations are asked to compromise the protections afforded their citizens by ordinary criminal law. Such protections are the essence and purpose of national sovereignty. So the first question here is whether or not the business of the IMF and similar organizations is so transcendently important, and so vulnerable, that nations should allow their citizens to be raped without recourse for it. (I know that sounds like an inflammatory way to frame it, but it seems to be accurate.) And the second question is, who gets to determine whether immunity will be granted: each nation independently, or some kind of consensus arrived at when a large majority of nations agrees?

    As to the first question, I cannot help being skeptical. Plenty of important, powerful bodies are able to operate without such carte blanche immunity. If the head of the CIA, or the CEO of Microsoft, or the Prime Minister of Great Britain, were caught committing rape, they would all be (at least theoretically) subject to eventual criminal prosecution. Bringing them to justice would be a complicated process, but they are not granted irrevocable immunity for anything they do.

    This vulnerability could certainly be used to interfere with an organization, either by discovering a real crime or by fabricating one. But the prosecution would not permanently cripple the CIA, Microsoft, or Parliament. I cannot see how the IMF would be in any more danger than these bodies. DSK has, in fact, been discredited and removed from his position as a consequence of his alleged crime. If the state of New York were able to prosecute him now, what further harm would be done to the IMF? Why must he be free to assault innocent people?

    As for the second question, I don’t mean to be trite, but the answer seems simple. The United States legally gained its independence in 1783, and has full jurisdiction to enforce its criminal laws within its borders. How a majority of other nations agreeing to treaties, which the US pointedly refused to agree to, can change that, is beyond me. Only parties to treaties are subject to their terms.

    I’m not a lawyer, which is probably why my views lack nuance. But there is something to be said for pursuing justice and simplicity in law, especially in a country like the US that was originally founded by the people, for the people, with laws founded on broad principles that can be understood without years of training. How are the ideals we hold dear promoted by letting DSK walk free? That is the question Americans should ask when thinking about granting immunity to the heads of international organizations. Other nations might do well to ask themselves a similar question.

    International law should not be used as an excuse to set up a dictatorship of the global elite.

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  2. [...] its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although [...]

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