The arrest over the weekend of Dominique Strauss-Kahn on charges of sexual assault has raised many troubling questions. Among them: does the IMF managing director have diplomatic immunity?
The answer would appear to be complex and muddy.
The New York Police Department, which arrested Strauss-Kahn, has plainly stated he will not enjoy any diplomatic immunity in a case featuring such serious charges.
He [does] not have diplomatic immunity, NYPD spokesman John Grimpel said.
That would seem to settle the matter since the NYPD is handling the case… but it does not.
The IMF's own Articles of Agreement state that its officials have immunity with respect to acts performed by them in their official capacity except when the Fund waives this.
Thus, the IMF would seem to have some discretion over whether immunity applies or not. As it remains unclear what Strauss-Kahn was doing in New York, it would appear that the Fund doesn’t yet have enough information to determine if immunity can be invoked.
Jovan Kurbalija, director of DiploFoundation, a Geneva-based organization, told the BBC that as head of one of the United Nation’s specialized agencies, the IMF managing director has the same immunity as any diplomat.
In fact, he asserted, as the head of an UN agency, Strauss-Kahn has greater immunity than an ordinary diplomat would since he is immune from prosecution in all countries.
Kurbalija said the principle of UN agency bosses having immunity from prosecution was established in article six of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, which states: The executive head of each specialized agency... shall be accorded... the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
The general principle is that heads of international organizations have full diplomatic immunity, Kurbalija added.
Kurbalija further explained that Strauss-Kahn has tacitly waived his own immunity, which means he will submit to forensic tests and fight the charges he is facing.
An individual cannot waive his or her immunity - but if he decides to waive his immunity, it will be just a formality [to waive it] from the IMF, Kurbalija says.
However, Strauss-Kahn’s prominence not only in global finance, but also in French politics, makes immunity a very contentious topic.
An official with the Paris government flatly told Le Monde newspaper: To me, there is no immunity. It is a matter for the IMF and the host country, the United States. [Strauss-Kahn’s] Frenchness is not at stake.
It is interesting to note that the IMF made no mention of immunity in its terse statement on the Strauss-Kahn affair.
Dragana Ignjatovic, an analyst with IHS Global Insight, commented that “although IMF staff are potentially entitled to diplomatic immunity, this only applies when they are taking actions in an official capacity on behalf of the body. It looks highly unlikely in any case that the IMF executive board would seek to invoke immunity given the reaction this would provoke in the US, where the institution is based.”