Diplomatic Immunity and the Dominique Strauss-Kahn Case

Last week, lawyers for Dominique Strauss-Kahn asked a judge to dismiss a sexual assault lawsuit against him, saying Strauss-Kahn was entitled to immunity under the protections adopted in 1947 at the Convention of the Privileges and Immunities of Specialized Agencies. Nafissato Diallo, the housekeeper who accused Strauss-Kahn of sexually assaulting her in his suite at the Sofitel Hotel, filed a civil suit against him last month in the Bronx after prosecutors dropped the criminal charges brought against him in Manhattan.

The 1947 United Nations convention states that heads of specialized agencies are immune from civil and criminal suits, regardless of whether they were acting in their official capacity when the alleged harm took place. Even though lawyers and scholars say there are some serious holes in Strauss-Kahn’s claim (i.e. whether Strauss-Kahn is actually a diplomat, the fact that the convention is a “relatively weak treaty that hasn’t been tested”, and the fact that the United States is not a party to the treaty), this situation seems to address the larger issue that foreign officials may be quick to claim diplomatic immunity whenever they are arrested or charged with a crime. In fact, when Strauss-Kahn was taken off an Air France flight back in May on suspicion of attempted rape, he claimed that he had diplomatic immunity. Diplomatic immunity has also made it possible for diplomats and their families to escape prosecution for crimes ranging from shoplifting, to driving under the influence of alcohol, assault, rape and even murder.

The general principal of diplomatic immunity is also one that is abused by officials time and time again. This abuse can take the form of cars with diplomatic license plates being double parked on New York City streets, to not paying rents and fees. New York City regularly protests to the Department of State about non-payment of parking tickets because of diplomatic status, thus obviously resulting in a decent loss of revenue for the city. Additionally, United Nations staffers across the globe have been shielded by court orders for child support and alimony payments on the grounds of diplomatic immunity.

Do the costs of the principal of diplomatic immunity outweigh the benefits? Is diplomatic immunity too over-inclusive? And lastly, is it possible that the time has come for diplomatic immunity to be reformed?

 

4 comments

  1. I think that it is appalling that he was able to get out of both the criminal and civil cases for attempted rape under diplomatic immunity even though I was not really clear what exactly diplomatic immunity was, but sure did sound unjust. Since I was unsure of exactly what was encompassed in diplomatic immunity, in order to form an opinion based on more than a gut feeling I looked it up. I was very surprised who broad it was, I found that “the Convention deals with exemptions from criminal as well as civil laws of a host nation in most circumstances. Generally, embassy territory and communications, as well as a diplomatic agent’s person and personal property, are considered inviolable under the Convention. Article 31 of the Convention exempts diplomatic agents from the civil and criminal jurisdictions of host states, except for cases in which a diplomatic agent (1) is involved in a dispute over personal real property, (2) has an action involving private estate matters or (3) is in a dispute arising from commercial or professional business outside the scope of official functions.” http://www.usdiplomacy.org/diplomacytoday/law/immunity.php . Additionally, these exceptions can be waived, leaving it near impossible to ever prosecute someone with “diplomat” status.
    But what is the purpose of exempting these people from the laws of our country? How can we allow them to go free and clear no matter what crimes they commit during their time here in the U.S. According to the U.S. Department of State web site, “The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. Most of these privileges and immunities are not absolute…” So diplomats can get immunity to laws so that they can carry out their mission, which seems admirable. But what I am still not clear about is how he can be exempted from charges of sexual assault, that wasn’t part of his “mission” while he was here. I don’t see any benefit for not prosecuting him or allowing the civil suit. One’s status as a diplomat should not give them permission to harm others while in their host nation and while I do always try to see an issue from both sides, in regards to this one, I am stumped.

  2. During the Cold War, no country would have sent high ranking diplomats to work and live in communists countries without immunity : they would have been a fair game for the KGB and other secret services behind the Iron Curtain. Hundreds of wonderful thrillers written during this period, just to begin with Graham Green and later John Le Carré give an idea of what sort of dangers the diplomats had to live with. Today, in countries where dictatorship is still the rule, diplomatic immunity remains one of the last shield for diplomats to protect them against being accused of everything and nothing, or being victims of all sort of blackmailing. In the DSK case, the question seems to be different. DSK’s lawyers say that their client did not request the use of the diplomatic immunity during the criminal procedure, because he wanted to clean his name, and accepted the risk of a trial. They also argue that because the case blew up very fast, they did not even had the time to place this question on top of their priority. They today consider that the criminal case being dropped and closed, their client is de facto innocent. Consequently the civll case, which has nothing to do with looking if Mr Strauss-Kahn is guilty or not of a crime but only seeks wether the plaintiff can receive money or not, that this civil case does not have to take place. That Mr-Stauss-Kahn did not claim to use his immunity for the criminal case does not mean that he should not use it for a civil case, which is a “lesser” case than the criminal one. And they argue on top that there is no reason to spend more time and money on a case which has no merit. My knowledge of the US common law is not that good, as I am European, but the arguments developed in the motion to dismiss DSK’s lawyers presented is interesting, on a legal point of view. No doubt this will be a case to be learn in law schools.

  3. The rules concerning diplomatic immunity are a huge mess, filled with loopholes and exceptions. While it may seem like a diplomat has absolute immunity, this is not actually the case. Their home country can waive their immunity and open them up to prosecution. Alternatively, if they are removed back to their native country, their own government can choose to prosecute them. However, these situations usually only happen when they commit a serious crime separate from their official duties (the Strauss-Kahn case seems like a perfect example). In addition, there are also some creative solutions for getting around the restrictions. In the Hague for example, there were too many diplomats ignoring the speed limits so instead of writing tickets that wouldn’t get paid, their cars were impounded because a diplomat can’t use their status to get a car released.

  4. Diplomatic immunity, as has been clarified by a user above, exists in order to shield diplomats from host countries that may use an interpretation of some rule that maybe totally unfair to the diplomat and his/her family. It exists in order that a diplomat can function in another country without fear of host country retribution. When someone asks for a repeal of some privileges, it is worth noting that diplomats belonging to the United States enjoy similar, and sometimes even more, privileges in other countries, without which they cannot function in many countries of the world. As an example, just a few months before the DSK affair, the US claimed (and successfully) for one of its staff (Raymond Davis) who was accused of killing two men in Pakistan. Similarly, exemption from taxes is given for the simple reason that, if not, a host country can impose so high a tax on a diplomatic building or a person so as to rendering their functioning impossible. The abuse of diplomatic privileges (like some instances stated in the article) can be debated and, perhaps, they have to be reformed, but it must be noted that such privileges exist for a purpose and, doing away with them altogether would rather be counterproductive.

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