27 Sep DSK Asserts Immunity in Civil Lawsuit
Former IMF Chief Dominique Strauss-Kahn has asserted immunity under international law from the lawsuit filed by Nafissatou Diallo, the maid who is accusing him of sexually attacking her.
“Mr. Strauss-Kahn enjoyed absolute immunity under customary international law not only while he was head of the IMF, but also for the period of time after he had resigned from his post and was ordered to remain in the United States in his criminal matter,’’ the Frenchman’s high-powered lawyers said in a sensational motion to dismiss, filed today in Bronx Supreme Court.
“That is because, under applicable and controlling international law, Mr. Strauss-Kahn’s absolute immunity persisted until he was able to leave the United States,” the document said, according to Agence-France-Presse.
I am dubious of this claim for two reasons. It is true that customary international law can be invoked to provide immunity in a U.S. court, even absent a treaty, it is rarely done so and (to my knowledge) has not been done so since most of these rules were codified in statutes and treaties. Second, as Chimene Keitner argued here in an earlier post, DSK has a very weak claim to immunity because the IMF may have waived whatever immunity he might have had and since he was not likely to be acting in his official capacity. Still, there is a plausible argument here, just not a very convincing one. Will it convince the Bronx court judge?
Just blowing high powered smoke at the judge. Not a wise move in my opinion for him to take given the general hostility to immunity claims.
Let me get this straight, an international banker while in a foreign country for mixed reasons, some related to banking, some related to family, some, some it seems related to sex as a sport, [mandatory term] allegedly assaults a housekeeper at a hotel [although apparently the banker may claim a factual defense that “it” [the contact] was just a consensual quickie while waiting for a cab] claims diplomatic immunity because he is an international banker. Hmm. I need to ponder that one a little more. I don’t think I am smart enough to really understand it. I come from a criminal law background and it probably shows in the characterization.
There is two types of immunity under international law relevant for this discussion, functional immunity (immunity ratione materiae) and personal immunity (immunity ratione personae).
Functional immunity confers immunity on those who perform acts of state (or acts of an international organisation). The immunity does not cease after the offical has left office. The alleged rape cannot be an act of a state or an act of an international organisation – no immunity.
Personal immunity confers immunity on people holding a particular office but only when they are in office. DSK is not in office – no immunity.