NY State Court Rejects DSK’s Immunity Claim

As Julian predicted a few days ago, Judge Doug McKeon of the Bronx Supreme Court (that is the trial court level, New York state) today rejected former IMF Chief Dominique Strauss Kahn’s claim that he was entitled to immunity from a civil lawsuit brought by a former maid at the Sofitel Hotel in New York for the same acts that caused the Manhattan DA to at first charge DSK with sexual assault, charges that later were dismissed.  The full opinion is here.

On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts.  DSK is not entitled to this official acts/functional immunity (as Chimene Keitner argued earlier here), since he was not carrying out official duties during his visit to the Sofitel.

The judge did not shy from the customary international law question here, i.e.,DSK’s argument that the Specialized Agency agreement has ripened to a customary norm through which absolute immunity is extended to all international agency heads.  Citing the ICJ North Sea Continental Shelf cases, that CIL “must have equal force for all members of the international community, and cannot therefore be subject of any right of unilateral exclusion exercisable at will by any one of them in is own favour.”  The fact that a large number of states have signed onto the Specialized Agency treaty does not, the judge correctly concluded, overcome the objections of certain key states — including the U.S. and Switzerland — to its provisions.  In the end, he concludes, the International Organizations Immunity Act of 1945, “with its official acts immunity, not customary international law, controls the nature of immunity relative to Mr. Strauss-Kahn.”  DSK’s lawyers now have the option to appeal immediately.  Maybe, as Julian points out, the State Department will weigh in at the appeals stage to let us know what it thinks of the CIL status of the Specialized Agencies agreement.