Immunity defense would be hard for Strauss-Kahn
By Brian Grow
ATLANTA (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."
The issue has come up in recent years in civil cases in the United States. Three domestic workers employed by foreign diplomats in the United States have filed federal lawsuits alleging they were underpaid or physically and verbally abused. The workers claimed that their diplomatic employers violated the Fair Labor Standards, and that they are not exempt from prosecution under the Vienna Conventions' exemption for "commercial activity ... outside his official functions." But federal judges have dismissed all of the cases. Most recently, on April 26, U.S. District Judge James Boasberg in Washington threw out a case alleging that Lebanese Ambassador Antoine Chedid and his wife underpaid and verbally abused their maid. His decision relied, in part, on a State Department filing in a separate case, which found that hiring household workers for assistance during diplomatic service is covered by the Vienna Convention's immunity provisions.
On March 25, four former employees of a senior Qatari diplomat in the United States filed a similar abuse case, which also alleges sexual assault, in federal district court in Washington.
To be sure, there may be some precedent for a Strauss-Kahn legal defense that claims diplomatic immunity. Last June, British newspaper the Telegraph reported that Pakistani investigators dropped an inquiry into allegations that Paul Ross, head of the IMF's Pakistan unit, abused his wife by throwing her out of their home. "The police officer dealing with the case said that as soon as they found out that Mr. Ross had diplomatic status they abandoned the case," the Telegraph reported. At the time, the IMF said it was conducting an internal inquiry.
(Reporting by Brian Grow; Editing by Eric Effron)