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goings on in international law & politics

May
15
2011

IMF DSK OMG

Dominique Strauss-​​Kahn is another Frenchman famous enough to just go by his ini­tials, DSK. For the past three years he has been doing what most con­sider to be a pretty good job as the man­ag­ing direc­tor of the International Monetary Fund (well, apart from caus­ing a sig­nif­i­cant tem­pest over the indis­cre­tion and impro­pri­ety of an extra-​​marital affair with one of his sub­or­di­nates). He is cur­rently lead­ing the IMF nego­ti­a­tions over European debt prob­lems and the urgent bailout of the Greek econ­omy. He was also widely expected to be the social­ist can­di­date for the pres­i­dency in the upcom­ing French elections.

Last night, DSK was taken off an Air France plane at Kennedy Airport in New York, ten min­utes before it was sched­uled to leave for Paris. He has been charged with attempted rape and unlaw­ful impris­on­ment for allegedly hav­ing sex­u­ally assaulted a maid in his $3,000/night Manhattan hotel suite ear­lier in the day.

Here is what the IMF has to say on the sub­ject:

IMF Managing Director Strauss-​​Kahn was arrested in New York City. Mr. Strauss-​​Kahn has retained legal coun­sel, and the IMF has no com­ment on the case; all inquiries will be referred to his per­sonal lawyer and to the local author­i­ties.
“The IMF remains fully func­tion­ing and operational.”

The details are sor­did and are likely to throw a sig­nif­i­cant wrench into French elec­toral pol­i­tics. But I know the real ques­tion on your mind is “what about diplo­matic immunity?”

That’s a good ques­tion. As the head of a major inter-​​governmental orga­ni­za­tion (IGO), it is likely that he has some kind of immu­nity. Unlike for reg­u­lar ambas­sadors and other diplo­matic per­son­nel, there are not a lot of prece­dents here. While there has always been talk about rapa­cious bankers, it hasn’t been meant so lit­er­ally before. The cen­tral issue is going to be whether he has absolute immu­nity or acts immunity.

Acts immu­nity only cov­ers actions taken in the course of his offi­cial duties. Coming out of your bath­room stark naked and attack­ing a cham­ber­maid prob­a­bly doesn’t qualify.

If he has absolute immu­nity, then the issue arises of who would have the right to waive that immu­nity. He is a French cit­i­zen, so it could be France (as it would be in the case of a crime by the French ambas­sador). But, if we fol­low the “nec­es­sary intend­ment” logic of the Reparations Case, it would more likely be the IMF itself. That deci­sion, we pre­sume, would fall to the IMF board, rather than the IMF Managing Director (although that cir­cu­lar­ity does exist for pure sov­er­eign immu­nity – only the King can choose to waive immu­nity for the King).

If it comes to that, the IMF board may be inclined to waive immu­nity, given the sever­ity of the crime, the sig­nif­i­cant influ­ence of the U.S. at the IMF, and the fact that this is the sec­ond time the bank has been embar­rassed by his tabloid escapades.

On the other hand, the IMF Articles of Agreement explic­itly spell out the immu­ni­ties of IMF employ­ees in Article IX.8.i:

All Governors, Executive Directors, Alternates, mem­bers of com­mit­tees … advi­sors of any of the fore­go­ing per­sons, offi­cers, 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;

That makes it look pretty clearly like acts immu­nity rather than absolute immunity.

U.S. code in the International Organizations Immunities Act sug­gests a sim­i­larly restricted view on the immu­ni­ties for the heads of inter­na­tional orga­ni­za­tions:

§ 288d. Privileges, exemp­tions, and immu­ni­ties of offi­cers, employ­ees, and their fam­i­lies; waiver

(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.

(§288d(a) gives such offi­cers the same immu­nity sta­tus as ambas­sadors, but only in rela­tion to cer­tain sit­u­a­tions, such as enter­ing and leav­ing the coun­try and the like)

The other inter­est­ing dimen­sion of this issue is that since France endorses the “active per­son­al­ity” doc­trine for juris­dic­tion over its cit­i­zens any­where in the world, the com­mis­sion of a seri­ous crime abroad is grounds for pros­e­cu­tion in France as well.

At this point these are only accu­sa­tions. But there are two cer­tain­ties in this devel­op­ing situation:

1. The French elec­tions are going to be thrown into some turmoil.

2. We can now see that know­ing a bit of inter­na­tional law is even impor­tant for fol­low­ing the news in the tabloids.

8 Responses to “IMF DSK OMG”

  1. Alexander Eichener says:

    My read­ing of the writ­ten norms (for­get prece­dents, there are none with IMF, and the few oth­ers that exist, are about con­trac­tual rather than crim­i­nal lia­bil­ity) would come to a dif­fer­ent assessment.

    I have been able to come up only with two legal sources which seem to address dif­fer­ent situations.

    1. The IMF’s own statu­tory pol­icy (if such word­ing is not deemed oxy­moronic: con­tra­po­si­tion statutes pol­icy) was worded and put down in 2002, and only seems to address diplo­matic acts immunity:

    http://​www​.imf​.org/​e​x​t​e​r​n​a​l​/​p​u​b​s​/​f​t​/​s​d​/​i​n​d​e​x​.​a​s​p​?​d​e​c​i​s​i​o​n​=​D​N11

    2. Unter inter­na­tional law how­ever (United Nations Convention on the Privileges and Immunities of the Specialized Agencies and Annex V), while it does also address diplo­matic acts immu­nity, and extends this to mem­ber rep­re­sen­ta­tives of the IMF’s mem­ber par­ties, on offi­cial duty or mis­sion, there is also a men­tion of the per­sonal invi­o­la­bil­ity (immu­ni­tas quoad per­sonam) of the exec­u­tive head of (inter alia) the IMF.

    SECTION 21
    “In addi­tion to the immu­ni­ties and priv­i­leges spec­i­fied in Sections 19 and 20, the exec­u­tive head of each spe­cial­ized agency, includ­ing any offi­cial act­ing on his behalf dur­ing his absence from duty, 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.”

    http://​www​.imf​.org/​e​x​t​e​r​n​a​l​/​p​u​b​s​/​f​t​/​s​d​/​i​n​d​e​x​.​a​s​p​?​d​e​c​i​s​i​o​n​=​D​N22

  2. ktgaubatz says:

    That’s a great cite, Alexander. Thanks.

    I’d expect that there would also be some gen­eral argu­ments about the scope of Vienna Convention immu­ni­ties con­nected to an argu­ment about the func­tional neces­sity of giv­ing the head of an IGO of the import of the IMF the same pro­tec­tions as senior diplomats.

    Still, at the end of the day, any immu­nity that obtains belongs to the IMF as an orga­ni­za­tion rather than DSK as an individual.

    Short of some seri­ous doubts about the evi­dence or some plau­si­ble inti­ma­tions of a set-​​up, I don’t see the IMF think­ing this is a good place to take a hard line on immunity.

    If they wanted to make the point the IMF could try to claim absolute immu­nity and then waive it – which would at least hold the ques­tion open until a more promis­ing case comes along.

    Thus far, it doesn’t look like France cares to push it. I don’t see any other states lin­ing up to sup­port an expan­sive view of the IMF’s immunities.

  3. No bail-out for Strauss-Kahn | Head of Legal says:

    […] immu­nity from pros­e­cu­tion for any­thing he does; Kurt Taylor Gaubatz of Old Dominion University thinks he only enjoys “acts” immu­nity – in other words, immu­nity cov­er­ing any acts per­formed in his offi­cial capac­ity, rather than […]

  4. Alexander Eichener says:

    The BBC seems now to have it got­ten halfway right too, and even explains it in lay-​​​​accessible lan­guage:
    http://​www​.bbc​.co​.uk/​n​e​w​s​/​w​o​r​l​d​-​u​s​-​c​a​n​a​d​a​-​1​3​4​1​2​092

    That said, I tend to agree fully with Prof Gaubatz’ con­clu­sion or rather sug­ges­tion: “If they wanted to make the point the IMF could try to claim absolute immu­nity and then waive it  –  which would at least hold the ques­tion open until a more promis­ing case comes along.”
    This would indeed be the wis­est and most cir­cum­spect posi­tion to take.

    However, the present US (NY state) pro­ceed­ings, as much as they are pro­fes­sional and tes­tifying of truly dili­gent and good police work, are *bla­tantly* ille­gal. They could as well be sit­u­ated in Libya or North Korea or a sim­i­lar rogue state. The inter­na­tional com­mu­nity can­not tol­er­ate such a fla­grant breach of the laws on which the very func­tion­al­ity of this com­mu­nity rests.

  5. ktgaubatz says:

    Thanks for that link, which I par­tic­u­larly appre­ci­ate since I’m sched­uled on the BBC later this evening.

    I’m not so sure it is as cut-​​and-​​dried as the N.Korea anal­ogy implies. The UN Convention on the Privileges and Immunities of the UN Article IV sec­tion 18 again empha­sizes acts immu­nity for UN offi­cials (except the Sect. Gen. and Asst. Sect. Gens).

    As the BBC arti­cle sug­gests, Article VI Section 21 of the UN Convention on the Privileges and Immunities of the Specialized Agencies does give immu­nity to the exec­u­tive heads of the spe­cial­ized agen­cies. But, inter­est­ingly, it looks to me like the U.S. is not a party. I don’t know what the story is about that.

    Ultimately, states are the arbiters of inter­na­tional law. I don’t see them buy­ing into a very wide­spread notion of absolute immu­nity for IGO offi­cials. If no one objects (and espe­cially if the IMF doesn’t assert) the present case could be an impor­tant precedent.

    An inter­est­ing prob­lem is that arti­cle VI.21 of UN Convention on the Privileges and Immunities of the Specialized Agencies gives them immu­nity every­where. And unlike for reg­u­lar diplo­mats, the IGO doesn’t have the capac­ity to con­duct a trial or insti­tute pun­ish­ment; even with­out a waiver, an ambas­sador can at least be answer­able for an heinous crime in the courts of his or her own country.

    http://treaties.un.org/doc/Treaties/1949/08/19490816%2010 – 43%20AM/Ch_III_2p.pdf

  6. Dominique Strauss-Kahn and the Reach of Diplomatic Immunity | SkyTitles says:

    […] and Strauss-Kahn’s lawyers have not invoked such pro­tec­tions, var­i­ous media out­lets and some experts have pon­dered whether Strauss-​​Kahn could still try to invoke it as part of a long-​​shot defense […]

  7. Dominique Strauss-Kahn and the Reach of Diplomatic Immunity | UK Progressive says:

    […] Strauss-Kahn’s lawyers have not invoked such pro­tec­tions, var­i­ous media out­lets and some experts have pon­dered whether Strauss-​​Kahn could still try to invoke it as part of a long-​​shot defense […]

  8. IMMUNITY FOR DSK « INFOQUANDO says:

    […] Strauss-Kahn’s lawyers have not invoked such pro­tec­tions, var­i­ous mediaout­lets and some experts have pon­dered whether Strauss-​​Kahn could still try to invoke it as part of a long-​​shot defense […]

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