Can DSK Invoke Customary International Law to Dismiss His Civil Lawsuit? Probably Not

From all I’ve read, there is very little chance that a NY court will dismiss a civil lawsuit against former IMF chief Dominique Strauss-Kahn on the grounds that he enjoys diplomatic immunity.  I don’t have the papers, but the description of his argument goes like this:

Amit Mehta, one of Strauss-Kahn’s lawyers, said his client’s diplomatic immunity flowed from a 1947 United Nations convention that grants the heads of certain specialized agencies diplomatic immunity, regardless of whether they acted in an official capacity when the alleged harm occurred.

While the U.S. has never signed onto the convention, Mehta said it has achieved what is known as “customary international law” status, which means it must be honored even by countries that have not explicitly ratified it.

“The fact that the U.S. is not a signatory to the convention does not mean it should not apply,” Mehta told the court.

My guess is the judge will assume that DSK does have immunity under customary international law, but that DSK waived it by failing to invoke it properly. Or that DSK’s acts were not within the scope of any immunity he might have (as Prof. Chimene Keitner argues here). Or that DSK can’t get the immunity unless the IMF invokes it for him.   This will avoid the question of whether it really is a rule of customary law that heads of international agencies get diplomatic immunity. And whether if it is a rule of customary law, whether it is applicable in a NY court.

And what if there is an appeal?  Assuming that this is some sort of federal common law (a view to which I reluctantly concede), could there be some attempt to remove the case to federal court? Or is this question already settled by the various US statutes in the area? I doubt it, since DSK could have removed to federal court on alienage grounds alone, and hasn’t done so.

The silence of the State Department in this case is not surprising, but it is a shame since it would have offered the NY court an easy way out of this issue. Indeed, it would be nice to know whether the U.S. government believes the relevant convention for “specialized agencies” has achieved the status of customary international law.  It seems that there is some authority in favor of that proposition, although the scope of such immunity is uncertain.

As a strategic matter, though, DSK’s lawyers probably will fight this as far as they can, and try to drag out this argument, which could only be to the benefit of their client (who has other more serious legal troubles, it seems).