The arrest of Dominique Strauss-Kahn on sexual assault charges has many wondering if the accused can claim diplomatic immunity as the chief of the International Monetary Fund.
The short answer: He can claim it all he wants. But the courts are likely to reject this claim.
The IMF is officially a “specialized agency” under the United Nations.
In many countries, the heads of specialized agencies enjoy a very broad form of diplomatic immunity that applies not just to acts performed in their official capacity, but to most other prosecutions and lawsuits.
But Strauss-Kahn will not be able to claim this immunity—because the United States is not a party to the 1947 Convention on the Privileges and Immunities of the Specialized Agencies that created it.
The law that applies to Strauss-Kahn is not a UN Convention but the International Organizations Immunity Act that was originally passed in 1945. It takes a much narrower view of diplomatic immunity. Here’s the text (emphasis mine):
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.
It’s up to courts to decide what constitutes “acts performed…in their official capacity.” Last year, the Second Circuit ruled that the United Nations and its officials were immune from a sexual harassment lawsuit filed by UN employees. Running an office as a cesspool of harassment constituted a form of office management—which falls within the official capacity of the officials.
But the court did say the plaintiff in the case was free to refile her battery charge in state court, which would then have to determine if that was covered by immunity.
The obvious question here is whether sexual assault can ever be an act performed in an official capacity by the head of an international financial agency. But legally, this is probably not the starting place of the inquiry. The court must judge the immunity claim without judging whether the alleged sexual conduct occurred or was unlawful.
It just asks: Did the person undertake the alleged conduct in their official capacity as the officer of an international agency.
It would involve an extremely broad reading of “official capacity” to read it as including Strauss-Kahn’s interactions with a hotel housekeeper. In fact, they have almost no “official” interaction at all. He works for the IMF, she works for the hotel. They encountered each other by accident, apparently. Including this as covered by diplomatic immunity would make the phrases “relating to acts performed by them in their official capacity” completely superfluous—almost every act with any person anywhere would qualify.
There is simply no tenable legal grounds for Strauss-Kahn to claim diplomatic immunity. He’s going to have to face his charges.
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