Is IMF Managing Director (DSK) Entitled to Immunity from Prosecution?

I intended to write a post explaining why International Monetary Fund (IMF) Managing Director, Dominique Strauss-Kahn (DSK), does not have immunity under the applicable treaties dealing with the immunity of the IMF and its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although Article VI, Section 22 of the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies provides that “the executive head of each specialized agency . . . the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”, and even though diplomatic envoys have absolute immunity from criminal jurisdiction of foreign States, the United States is not a party to that treaty. This means that the only relevant treaty is the IMF Articles of Agreement which provides in Article IX, Section 8(i) that IMF Staff, “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, as Chimene puts, DSK does not have status immunity (or diplomatic immunity) but only official act (or functional) immunity. The latter immunity only covers acts carried out in official capacity and it is difficult to see how the alleged acts could have been carried out in an official capacity. So, the matter as regards the relevant treaties (and the relevant US federal statute –  The International Organization Immunities Act, 1945 22 USC § 288d(b)) appears to be quite straight forward. However, I wonder if that is the end of the matter. Could it be claimed that DSK has diplomatic immunity under customary international law which the US is bound to respect? If he were the head of a foreign State then customary international law would obviously be relevant. But do international organizations and their employees have immunity under customary international law? Are US courts bound to respect such immunity? There is actually a plausible case that the broader immunities in the Convention on Specialised Agencies represent customary international law but I don’t think this is at all certain and suspect that the courts will not accept that view. Nonetheless, I set out the argument below.

As a general matter, the view that international organizations have immunity under customary international law seems well established. This is not to say that all international organizations have immunity from the jurisdiction of all States. However, it is probably the case that those States that permit international organizations to operate within their State (host States) are obliged to grant it such immunities as are necessary for the functioning of the organization.   That view has been taken by many scholars  [see for eg Muller, International Organizations and their Host States, 47-51] and by the Third Restatement of the Law: The Law of Foreign Relations of the United States, vol 1 (1987), §467(1). The view that international organizations have customary law immunities has also been taken by many courts, including by US Federal Courts [see Mendaro v. World Bank 717 F.2d 610, 615, DC Cir, 1983)] On the other hand, the New York State Supreme Court has held [in International Tin Council and Amalgament (80 ILR 31, 1988)] that where the US had no treaty obligation to grant immunity to an organization and was not a host State it was not obliged to accord immunity.

States and the UN Legal Counsel  have also taken the view that customary international law requires the granting of immunity to international organizations. Indeed, this was a significant issue at the time when the United States was not a party to the 1946 UN General Convention on Privileges and Immunity of the United Nations (the sister treaty to the Convention on Specialised Agencies referred to above). That Convention(which is very similar to the Specialised Agencies Convention) accords greater immunities than are included in the Headquarters Agreement between the US and the UN. Before the US became party to it some States insisted that the US (and other States) were bound to apply the principles in that treaty as it represented it customary international law. In a meeting of the UN Sixth (Legal Committee) in 1967, “The view was expressed that the contents of the 1946 Convention now formed part of general international law as between the Organization and its Members and were accordingly binding on States even in the absence of an express act of accession.” (1967) UN Juridical Yearbook 260. It is not recorded that this view as opposed and the in the same year, the UN Legal Counsel agreed with this view stated that  “I doubt that I am being over-bold in suggesting that the standards and principles of the [General] Convention have been so widely accepted that they have now become a part of the general international law governing the relations of States and the United Nations.” [Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, (1967) UN Juridical Yearbook 311. 314, para. 11].

If the principles in the 1946 UN General Convention on Privileges and Immunities are part of general international law such that they were binding on the US before it became a party to it, is it then the case that the principles in the Specialised Agencies Convention are also binding on the US though not a party? It doesn’t follow. In the first place, the position of the UN is different. The UN Charter in Art. 105 sets out the principle that the UN is to have such privileges and immunities as are necessary for fulfilling its functions. The 1946 Convention was intended to spell out such immunities, however the general principle was already binding as a matter of the UN Charter. So perhaps the position of the UN is different.

Secondly, even if one accepts that under customary international law international organizations such as the IMF need to have such immunities as are necessary to perform their functions, the question that arises is whether broad diplomatic immunity for the managing director is necessary for the IMF? One the one hand the fact that the Specialised Agencies Convention provides for such immunity would seem to suggest that it is seen as necessary with respect to a person in that position. On the other hand, it may be thought that all that is necessary for the organization to function effectively is official act immunity for its employees and even the head of the organization. Indeed, the fact that the IMF Articles of Agreement goes no further than this (even with respect to IMF Governors and Executive Directors) would seem to support the argument that diplomatic immunity is not necessary for the head. In the context of immunity of State officials, Sangeeta Shah and I, in a recent article, make the argument that though the status immunity (immunity ratione personae) of certain State officials is justified on account of what is necessary to perform their international relations function, the broader status immunity granted to heads of States and heads of governments is not justified on this ground but on broader symbolic sovereignty and non-interference grounds. Those further rationales do not apply to heads of international organizations.