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.