Could DSK claim diplomatic immunity?

The consensus answer seems to be… probably not. For diplomats representing states, diplomatic immunity rules are pretty straighforward, though not always failsafe for the accused. A Georgian diplomat, for instance,  has his diplomatic immunity waived by his home country in 1997 after killing a Maryland teen in a drunk driving accident. But things are a ...

By , a former associate editor at Foreign Policy.
Emmanuel Durand- Pool/Getty Images
Emmanuel Durand- Pool/Getty Images
Emmanuel Durand- Pool/Getty Images

The consensus answer seems to be... probably not.

For diplomats representing states, diplomatic immunity rules are pretty straighforward, though not always failsafe for the accused. A Georgian diplomat, for instance,  has his diplomatic immunity waived by his home country in 1997 after killing a Maryland teen in a drunk driving accident. But things are a little more complicated for representatives of international organizations.  

Over at Opinion Juris (via Atlantic Wire), Duncan Hollis writes

The consensus answer seems to be… probably not.

For diplomats representing states, diplomatic immunity rules are pretty straighforward, though not always failsafe for the accused. A Georgian diplomat, for instance,  has his diplomatic immunity waived by his home country in 1997 after killing a Maryland teen in a drunk driving accident. But things are a little more complicated for representatives of international organizations.  

Over at Opinion Juris (via Atlantic Wire), Duncan Hollis writes

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.” 

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.

Old Dominion University’s Kurt Taylor Gaubatz, an international law expert quoted by Reuters, is a little less ambiguous, saying "Coming out of your bathroom stark naked and attacking a chambermaid probably doesn’t qualify [as an official act]."

But there’s also the question of whether DSK actually has regular diplomatic immunity through the IMF, which is considered a specialized agency of the United Nations. Stangely, the U.S.-U.N. headquarters agreement, according to Hollis, seems to indicate that countries’ representatives to the IMF are entitled to immunity while the Managing Director, who is higher ranking in the organization, but doesn’t represent any sovereign state, may not.

CNBC’s John Carney also notes that the United States is not a signatory to the Convention on the Privileges and Immunities of the Specialized Agencies, which in many countries would grant immunity to the head of an organization like the IMF. 

In any event, Strauss-Kahn’s defense strategy is still unclear — he was denied bail earlier today — but it seems fair to say that diplomatic immunity would be both a stretch on legal grounds, and nothing short of a PR catastrophe for the IMF.

Joshua Keating was an associate editor at Foreign Policy. Twitter: @joshuakeating

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