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No Immunity for DSK

IMF Managing Director Dominique Strauss-Kahn
Mandel Ngan | AFP | Getty Images
IMF Managing Director Dominique Strauss-Kahn

If anyone tells you that the law of diplomatic immunity is clear, he’s probably confused, lying or French.

I’m going to assume that Jovan Kurbalija, director of DiploFoundation, a Geneva-based organization researching the role of diplomacy in the modern age, is just confused. He told the BBC that Dominique Strauss-Kahn enjoys the full immunity of high ranking diplomat.

The BBC points to a passage from Section 21 of Article VI of the 1947 UN Convention on the Privileges and Immunities of the Specialized Agencies.

"The executive head of each specialised agency... shall be accorded... the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law,” the treaty says.

So DSK gets immunity, right? Not so fast.

The governing United States statute on diplomatic immunity for officials of international agencies was originally signed in 1945. It says that immunity for diplomats employed by organizations such as the IMF only applies to actions taken in their “official capacity.”

Any reading of that law that included DSK’s alleged conduct would have to read “official capacity” so broadly that it would be meaningless: everything would count as occurring with an official capacity. And courts don’t like to render phrases in laws meaningless or redundant.

Under the statute, DSK probably doesn't enjoy immunity.

So which wins here? The statute or the treaty? Fully ratified treaties override ordinary statutes under the US Constitution. But the US didn’t ratify the 1947 convention—so it has no force of law here.

DSK did not assert diplomatic immunity when he was in court yesterday—probably because his lawyers informed him that in the United States, it doesn’t apply to his case.

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