What kind of immunity does the IMF Managing Director
Have?
by Duncan
Hollis, May 15th,
2011
The
arrest on sexual assault charges of IMF Managing Director Dominique
Strauss-Khan (or “DSK” as he’s known to the French tabloids) is big
news this morning. Most of the main stream media attention (quite
naturally) has focused on the salacious allegations themselves and/or DSK’s
potential presidential ambitions back in France. Here at Opinio Juris, however,
I’m sure I was not the only one whose first thought went to the
immunity question — namely did officers of the Port Authority of New
York and New Jersey detain DSK consistent with federal and international law?
International Organizational immunity
is a complicated topic given its tendency to operate by analogy to
the more established concepts of diplomatic and consular immunity. The
relevant U.S. law, the International Organizations Immunity Act (IOIA), 22 U.S.C.
881, generally tracks consular immunity
for international organization officers and employees. Thus, 22 USC
881d(b) provides:
(b) Representatives of foreign governments in or to international
organizations and officers and employees of such organizations shall be immune
from suit and legal process relating to acts performed by them in their
official capacity and falling within their functions as such
representatives, officers, or employees except insofar as such immunity may be
waived by the foreign government or international organization concerned.
This
approach mimics that taken in the IMF’s
own Articles of Agreement. Section IX(8) provides
that officers of the IMF and employees of the Fund “(i) shall be immune from legal process with respect to acts performed
by them in their official capacity except when the Fund waives this
immunity.” (DO- looks like generally tracking consular
immunity)
Thus,
it seems at first glance DSK is entitled only to official acts immunity,
barring a waiver by the IMF (and I don’t think their current “no comment” can be
read as a waiver here). This would beg the question of what he
was doing in New York on Saturday? Was he there for some
meeting? Was he “in transit” to his planned Sunday meeting with
German Chancellor Merkel? Or, was he just enjoying a spring weekend
in the Big Apple? Ultimately, what qualifies as an
“official act” is a tricky topic that will ultimately require us to
know more facts.
(DO-
thus far, focused on consular immunity)
But,
before we all assume official acts immunity is the governing framework, there’s
a complicating factor — could DSK actually have diplomatic immunity? Not all international
organization officials are subject to official acts immunity, some
of the most senior (see, e.g., the Secretary General and Assistant Secretaries
General of the UN, senior OAS officials) get the same privileges
and immunities as diplomats, meaning that they are absolutely immune in almost all cases from criminal
arrest or civil suit. And, at least some members of the IMF get this
treatment as well. The IMF is a specialized agency of the United Nations
and the United Nations and the United States have a long-standing “Headquarters
Agreement” that governs U.S. treatment of UN representatives and
personnel. Article 15 of that agreement provides that
“principal resident representatives of members of a specialized agency
and such resident members of the staffs of representatives of a specialized
agency as may be agreed upon between the principal executive officer of the
specialized agency, the Government of the United States and the Government of
the Member concerned, shall whether residing inside or outside the headquarters
district, be entitled in the territory of the United States to the same
privileges and immunities, subject to corresponding conditions and obligations,
as it accords to diplomatic envoys accredited to it.”
Thus,
if DSK were a “principal
resident representative” (PRR) of the IMF, he might actually be immune
from arrest entirely. I’m guessing he does not qualify
because he’s not representing anyone other than the IMF as its Managing
Director. But that creates the rather odd result that a lesser IMF
official might have absolute/diplomatic immunity denied to the titular
head of the IMF (on the other hand, PRR immunity might be deemed more a
function of the respect due the sovereign states these individuals
represent rather than anything derived from their service to the IMF
itself).
(official
act)
So,
what do others think? Can DSK claim anything other than official acts
immunity? If he does claim that status, how broadly should a court read
what counts as “official” here? And, to be clear, this will
likely be a question for a U.S. court to resolve — as the State Department’s guidance to
law enforcement makes clear on the question of what
constitutes an “official act”:
official acts immunity pertains in numerous different circumstances. No
law enforcement officer, State
Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the U.S. Department of State before arresting a consular officer, or, if not possible, immediately after arrest.
Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the U.S. Department of State before arresting a consular officer, or, if not possible, immediately after arrest.
There’s
obviously a lot more that could be said (I’ve not touched on the “official
acts” case law in the U.S. or elsewhere, nor have I analyzed whether the
Convention on Privileges and Immunities of the United Nations (to which the
United States is a party) would apply. I hope some of the commentators
can help further clarify these and other relevant issues.
-,
- , - - - - - - - - - - - - - - -, - , - - - - - - - - - - - - - -
-,
- , - - - - - - - - - - - - - - -, - , - - - - - - - - - - - - - -
Why
Has DSK Not Yet Asserted Immunity? Because He Can’t.
by
Chimene Keitner , May
17th, 2011
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, IOIA
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 (the 1947 Convention on the Privileges and Immunities of the
Specialized Agencies) 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.
(the 1947 Convention .. Specialized
Agencies does not constitutes CIL)
(regarding
art.6.(22)) 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.
(whether there is function immunity)
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.
o
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),
o
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.
o
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.
