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

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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.

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Chimene Keitnre says

May 18, 2011

Thanks for this very helpful additional analysis, Dapo. I've also been thinking about the potential impairment on the organization's functions that come with the lack of status immunity, and it might be that this case prompts other organizations, working together with host states, to modify their Articles of Agreement to include such immunity. However, as I think you also suggest, it is not clear that granting executive heads of international organizations a status immunity commensurate with that of diplomats and heads of state would be advisable or justifiable. After all, it would still presumably be open to the host state to declare the individual persona non grata and exclude him/her from the national territory (as it is with diplomats), so some impairment of functions could still occur. Moreover, the scandal that accompanies grave allegations itself detracts from the ability to perform the functions of office, even apart from the legal proceedings. Finally, I do think it is interesting that article 6(22) of the 1947 Convention talks not only about a "right" but also a "duty" of the organization to waive immunity if this is in the interests of justice. Although this duty is balanced by a consideration of the "prejudice" to the organization, presumably the relevant prejudice is that which arises over and above the prejudice already created by the alleged conduct itself. It is also interesting that the IMF has apparently chosen not to make a status-based claim (based on customary international law), even if it then agreed to waive that claim. One can only imagine the different turn the arguments would have taken had DSK committed the same alleged conduct after he had been elected President of France.

Bruce Broomhall says

May 19, 2011

Thanks to professors Akande and Keitner for injecting some rigor into the debate on the Strauss-Kahn immunity question, which began in a torrent of sloppy analysis circulated by Reuter’s, the BBC and others.

Let me just mention in light of the customary law arguments you have touched on that I was surprised to see the IMF declare, without qualification, that “The MD's immunities are limited and are not applicable to this present case.” The Articles of Agreement, the International Organizations Immunities Act and US non-ratification of the United Nations 1947 Convention make this the obvious position, of course. Nonetheless, I would have thought that legal advisers at the UN, the specialized agencies (including the IMF) and other international organizations would be concerned with setting a precedent that indicates only functional immunity for their top officials. I had imagined that their preferred position would be in favor of personal immunity for their Executive Head as per the 1946 and 1947 Conventions. At a minimum, I would have expected the IMF, in acknowledging Mr. Strauss-Kahn's limited immunity, to hedge their position by referring to US non-ratification of the 1947 Convention (thus underscoring that personal immunity would apply vis-à-vis the authorities of States Parties to that instrument), as well as to the US law. Such advisers would presumably be predisposed to push the argument farther and seek to ground the personal/diplomatic immunities of the Executive Head in customary law. Here the differences of language between article IX(8) of the IMF Articles of Agreement and Article 105(2) of the UN Charter might seem relevant (the IMF Articles being more expressly limited to the functional), but despite such nuances, states have seen fit to adopt status-based immunity for Executive Heads in the 1947 Convention. The practice of states in according immunities to the Executive Heads of international organizations when they are not party to the relevant privileges and immunities convention might provide relevant proof of state practice, but distinguishing functional from personal immunities on the basis of such proof would, I imagine, be too much to hope for.

Does anyone know of a HQ Agreement between the US and the IMF, akin to the US agreement with the UN? I haven’t found one, but in any event the US/UN agreement is unhelpful except for on-site or in-transit situations.

All of that being said, the two most important consequences of these events to emerge so far strike me as being the opening they have given in France to a public discussion about gender-based discrimination in public life, and the inquiries they have sparked about the harassment etc. policies of international organizations.

Kibrom Tesfagabir says

May 19, 2011

An englihtening piece. Here is a link to my recent publication re the whole affair of the immunity of international organizations.

Dapo Akande says

May 19, 2011

Many thanks to Chimene and Bruce for their comments.

I also find it interesting that the IMF did not assert that there was immunity but then waive whatever immunity might exist. I suppose in one regard, given the scandal presented by the allegations in this case and given that the position as a matter of treaty law seems very clear, it is easier for the IMF to ignore the entire matter and claim it is just a personal matter for DSK. However, I would have thought that legal advisers might be worried about the precedent being set as a future case might not seem so scandalous.

Chimene, a little point here, I don't think the concept of persona non grata (which allows hosts states to require the departure of diplomats) exists with regard to the heads of international organizations or even lower level staff. Otherwise that would give the host state the right to unilaterally sack the head or other staff. It is probably the case thatthe concept does not even exists with regard to State representatives to international organizations (though the US has claimed this right with regard to State representatives to the UN).

Like Bruce I have also searched for an IMF Headquarters Agreement and not been able to find one. If anyone knows of one, I would also be delighted to know of it.

Chimene Keitner says

May 19, 2011

Dapo, thanks for the additional clarification about the (in)ability of a host state to expel IO officials. I suppose the question then becomes, if an IO official does indeed benefit from status immunity but is accused of a serious crime, would the host state really be compelled to tolerate that person's presence indefinitely within its sovereign territory, without any legal recourse? Perhaps this is where the "duty to waive" language in the 1946 and 1947 Conventions comes in, where immunity would "impede the course of justice." Or, perhaps this is an additional argument against status (as opposed to functional) immunity.