Readers are familiar with the attempted rape charges against International Monetary Fund Chief and French national, Dominique Strauss-Kahn. If convicted, Mr. Strauss-Khan could face a sentence of 5 to 25 years' imprisonment. Mr. Strauss-Khan was denied bond by the New York City Criminal Court on Monday and is currently in custody at Riker's Island Prison.
Questions have arisen as to whether Mr. Strauss-Kahn might benefit from some form of immunity as a representative of an international organization. Any potential immunity would have to come from Title 22, Chapter 7, Subpchapter XVII of the United States Code, governing privileges and immunities of International Organizations. 22 U.S.C. § 288d provides, in relevant part:
"(b) Representatives of foreign
governments in or to international organizations and officers and employees of
such organizations shall be immune from suit and legal process relating to acts
performed by them in their official capacity and falling within their functions
as such representatives, officers, or employees except insofar as such immunity
may be waived by the foreign government or international organization
concerned."
22 U.S.C. § 288d.
This "functional" immunity is far less complete that the total immunity from legal proceedings enjoyed by members of diplomatic missions to the United States and their families under 22 U.S.C. § 254d and the Vienna Convention on Diplomatic Relations.
In order to be immune from suit or legal process under Section 288d, the complaint or charge must arise from the individual's employment with the international organization and relate only to acts performed in his or her official capacity. See Van Aggelen v. United Nations, 311 Fed.Appx. 407, 409 (2d Cir. 2009) (citing Donald v. Orfila, 788 F.2d 36, 37 (D.C.Cir. 1986); D'Cruz v. Annan, No. 05 Civ. 8918, 2005 WL 3527153, at *1 (S.D.N.Y., Dec. 22, 2005)). Thus, the functional immunity conferred upon representatives of international organizations has also been held by courts to be insufficient to bar criminal prosecution in the past. Similar arguments have been ineffective in preventing the indictment of a Russian national and procurement officer for the United Nations for money laundering, U.S. v. Kuznetsov, 442 F.Supp.2d 102 (S.D.N.Y. 2006); or the prosecution of a Tanzanian national and U.N. Economic Affairs Officer, Economic Affairs for third degree assault and resisting arrest, People v. Leo, 95 Misc.2d 408, 407 N.Y.S.2d 941 (N.Y.City Crim.Ct. 1978); or charges against a U.N. security officer for criminal mischief, People v. Weiner, 85 Misc.2d 161, 378 N.Y.S.2d 966 (N.Y.City Crim.Ct. 1976).
The brutal actions alleged against Mr. Strauss-Kahn certainly cannot be argued to relate to his official capacity as Chief of the IMF. The silver bullet of immunity will probably prove of little or no assistance against the serious charges he faces in New York.
