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

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

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.

Topics
General, Organizations
Notify of
Kenneth Anderson

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

Alexander Eichener, RA
Alexander Eichener, RA

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… Read more »

Ian
Ian

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;”
—————————

Tom Veal

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.

trackback

[…] CHIMENE KEITNER: Why Has DSK Not Yet Asserted Immunity? Because He Can’t. […]

Nathan
Nathan

“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… Read more »

NealK
NealK

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.

Georg Felis

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.

David W.
David W.

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… Read more »

[insert here] delenda est
[insert here] delenda est

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.

trackback

[…] 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 […]

trackback

[…] 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 […]

trackback

[…] 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 […]

Alexander Eichener
Alexander Eichener

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… Read more »

Alexander Eichener
Alexander Eichener

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,”

Nathan
Nathan

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,… Read more »