Strauss-Kahn Does Not Have Diplomatic Immunity
To all those who thought, himself probably included, that DSK would get away scott free from his most recent rape incident (as opposed to the metaphorical rape that the IMF has exercised over the decades over insolvent creditor nations), the Telegraph has one word: wrong. "Dominique Strauss-Kahn was told he does not have diplomatic immunity from prosecution against charges including alleged rape, said Paul Browne, an NYPD spokesman."
According to the IMF's Articles of Agreement, officials have immunity "with respect to acts performed by them in their official capacity except when the Fund waives this".
The organisation demands that member countries notify it when officials are arrested, so that it can assess whether this applies. It is unclear what Mr Strauss-Kahn was doing in New York.
Under normal circumstances it is the managing director – Mr Strauss-Kahn – who decides whether immunity applies, provided the IMF's executive board does not veto his decision.
In a short statement, the IMF did not mention immunity and referred enquiries to Mr Strauss-Kahn's "personal lawyer and to the local authorities" It also appears that Nicolas Sarkozy's government is not making any attempt to protect Mr Strauss-Kahn.
One unnamed aide has told Le Monde: "To me, there is no immunity. It is a matter for the IMF and the host country, the United States. His Frenchness is not at stake."
And from Reuters:
If IMF Managing Director Dominique Strauss-Kahn decides to seek diplomatic immunity to avoid sexual assault charges, he will likely have an uphill climb, a Reuters review of U.S. and international laws and treaties, International Monetary Fund policies and recent U.S. court rulings suggests.
Under the IMF's Articles of Agreement, employees are granted a limited form of diplomatic immunity known as "acts immunity," which refer to actions related to activities performed in the course of their work for the Fund. Article IX of the agreement notes that the Fund's staff "shall be immune from legal process with regard to acts performed by them in their official capacity." Even then, the agreement says, the IMF may elect to waive immunity.
The IMF's limited immunity provision is unlikely to protect Strauss-Kahn from prosecution for sexual assault, an expert in international law argued. "Acts immunity only covers actions taken in the course of his duties. Coming out of your bathroom stark naked and attacking a chambermaid probably doesn't qualify," Kurt Taylor Gaubatz, an associate professor in the Graduate Program in International Studies at Old Dominion University, wrote in a blog post on Sunday. Gaubatz did not respond to requests for additional comment.
Federal law in the United States may also make it difficult for Strauss-Kahn to claim diplomatic immunity. The International Organizations Immunities Act applies a limited scope of exemption from prosecution similar to the IMF's own rules. It says "representatives of foreign governments in or to international organizations" and "employees of such organizations" are immune from lawsuits and the legal process "relating to acts performed by them in their official capacity."
On Sunday, New York Police Department spokesman Paul Browne said Strauss-Kahn does not have diplomatic immunity, though Browne did not elaborate on why the NYPD believes diplomatic immunity does not apply. A spokeswoman for the French Consulate in New York, Marie-Laure Charrier, referred questions about possible diplomatic immunity to the IMF. A statement posted on the IMF Web site on Sunday did not address the issue.
Despite the limited immunity provided by IMF rules, Strauss-Kahn could still try to leverage his status as a quasi-diplomat in his legal defense. One of his attorneys is William Taylor, a partner with law firm Zuckerman Spaeder in Washington. Taylor has represented a range of high-profile clients, including former White House chief of staff Mack McLarty, in civil and criminal actions. The Wall Street Journal reported in October 2008 that Taylor also represented Strauss-Kahn in the controversy over an affair the married IMF chief allegedly had with a female subordinate at the Fund. Taylor did not respond to requests for comment on Sunday.
One possible legal defense strategy for Strauss-Kahn could be to try to apply the Vienna Conventions on Diplomatic Relations, which grant broad immunity from prosecution to diplomats serving in foreign jurisdictions. Article 31 of the convention says "a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." The U.S. ratified the treaty in 1972. The treaty also renders diplomats immune from prosecution in civil and administrative matters, with some exceptions. Under the convention, diplomats are not immune from "action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions."
Suddenly it looks like the IMF head (this will never get old) is about to be on the receiving end of some involuntary facial inflationary stimulus releases himself courtesy of America's penal (oops) system.