Archive for October, 2011

Immunity for IMF Chief? No Problem.

Dominique Strauss-Kahn’s lawyers made news by asking that Ms. Diallo’s rape case against their client be dismissed, claiming diplomatic immunity under a 1947 Treaty that treats leaders of international organizations like heads-of-state.  Even though the U.S. had not ratified the Treaty, DSK’s lawyers argued that “head-of-agency” immunity had become customary international law. And, although the Supreme Court prevented President Clinton from asserting head-of-state immunity for wrongful acts committed before he was President in Clinton v. Jones, Strauss-Kahn was in office at the time of his allegedly wrongful acts.

However, Plaintiff’s lawyers properly noted U.S. courts have not recognized “head-of-agency” immunity, notwithstanding its international recognition.  Even more compelling from Plaintiff’s viewpoint, last term the Court held in Samantar v. Yousuf that statutory immunity created by Congress in 1976 is limited to nation-states. Individuals claiming immunity must rely on common law, “individual-official” immunity principles which, the Court held, are derivative of “sovereign immunity” and extend only to acts in an official capacity, on behalf of a state.

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