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.

A New York judge might find it difficult to agree that whatever happened between Mr. Strauss-Kahn and Ms. Diallo in his hotel room was within the scope of his IMF appointment, whether consensual or not.

New Obama State Department Immunity Policy: “Immunity for Un-official Acts, Too, Even if Committed Before Assuming Office”

However, Mr. Strauss-Kahn’s lawyers may have a better argument than it first appears thanks to a month-old Obama State Department, new “Immunity Policy for Allies,” first described in Suggestion of Immunity issued by Legal Advisor Harold Koh on August 29, 2010.  For the first time after Samantar, and perhaps for the first time ever, the State Department has “suggested” individual immunity extends to acts not in an official capacity, in complete contravention of Samantar and common law immunity principles. The same Suggestion of Immunity also extends to acts committed years before its subject was in office, contrary to Clinton v. Jones.

The new “Immunity Policy for Allies” was unveiled in Habyarimana v. Kagame, a case brought in Oklahoma federal court by the widows of the assassinated Presidents of Rwanda and Burundi against Paul Kagame, when he on private business in Oklahoma City. The suit is refers to factual details in: (a) a 2006 French indictment; (b) a 2008 Spanish indictment; (c) an October 1, 2010, 600-pp UN High Commission for Human Rights “Congo Mapping Report 1993-2003” and (d) evidence from the UN Rwanda Tribunal.  The allegations include: the 1994 assassination of  two Presidents; the 1994 massacre of 320,000 Rwandans by Kagame’s troops; and, massive human rights violations in Rwanda and Congo including 6 million deaths resulting from Rwandan invasions, occupation and resource rape before the year 2000, when Kagame became President of Rwanda.

Mr. Obama: If Kagame Should Be Immune, Why Not Strauss-Kahn?

Many of these documented wrongful acts occurred before Defendant Kagame was associated with any government, and 5-6 years before he assumed the Presidency of Rwanda.   The State Department Suggestion of Immunity for Kagame is Strauss-Kahn’s best evidence that immunity for unofficial acts, including those which occurred before taking office, is already the law of the land, according to the Obama State Department and no matter the Supreme Court rulings in Samantar and Clinton v. Jones.

Since Mr. Kagame invaded Rwanda as part of Uganda’s army in 1990, Ugandan and Rwandan armies have wreaked havoc on Central Africa while shifting the balance of economic and military power to the U.S/UK in the last 20 years at the costs of millions of lives.  The facts are documented in UN Security Council Reports on the Congo in 2001, 2002, 2003, 2008 and the UNHCHR Report of Oct 2010. The allegations against Kagame include assassinations, mass murder, genocide, war crimes, crimes against humanity, etc.

Strauss-Kahn’s lawyers are sure to argue that the Suggestion of Immunity for Mr. Kagame, with his very public record of mass-murder before his Presidency, establishes a standard that must ensure immunity for Mr. Strauss-Kahn for a transgression of a serious nature, but certainly not of a mass or genocidal scope like Kagame’s?  More importantly, DSK was employed in his official capacity at the time of the wrongful conduct, Kagame was years away from being President of Rwanda.

Is it possible that, within this administration, Kagame’s value to the U.S. so much greater than Mr. Strauss-Kahn’s that the Obama State Department willing to protect  Kagame  from civil liability for his mass crimes but not Strauss-Kahn from his embarrassingly Clintonesque “he-said, she-said” sexual misbehavior?  Whatever the reason to protect Mr. Kagame by rejecting existing Supreme Court precedent to suggest immunity, it has also caused the U.S. to spend $2 billion on the UN Rwanda Tribunal to prosecute only Kagame’s enemies (not one of Kagame’s supporters has been prosecuted by the UN Tribunal).  According to her memoirs, it also caused the Pierre Prosper of the U.S State Department to fire Chief UN Prosecutor Del Ponte in 2003, when she insisted on prosecuting Kagame and his army for the assassinations and mass crimes during the Rwandan genocide.  No longer with the State Dept, Mr. Prosper is now representing the Defendant Kagame in Habyarimana v. Kagame.

Immunity from Civil Liability- The Ultimate “Separation of Powers” Question

In the last analysis, the resolution of DSK/Kagame immunity issues will require the Supreme Court to decide whether the executive or judicial branch has the last word on the nature and scope of “individual-official” immunity in U.S. courts. If unreviewable State Department “suggestion of individual-official” immunity becomes the law, federal courts will be a forum for litigating only the statutory ”sovereign-immunity of nation-states” and common-law “immunity of individual-officials” for whom the State Department has not suggested immunity.  However, when a State Department “suggestion of immunity” has been made, the courts would have no role.

Whether a case like Diallo v. Strauss-Kahn or Habyarimana v. Kagame is dismissed or not, would depend not on the facts before the court; the merits of the case; the state of common law, customary international or domestic law; or any ruling of any court at all; but, only the unreviewable decision of an anonymous State Department employee, completely divorced from any legal standard. The inevitable result will be an unpredictable individual immunity system in which each example of State Department “suggested immunity” will differ one from the other, and all will differ wildly from the common law applied by the courts to individual officials not favored by the State Department at the time the case happens to arise.

The contradictions between conditions justifying immunity for Kagame and Strauss-Kahn will become the order of the day, and foreign policy will be the final determinate of the progress of court proceedings, now law. Perhaps Mr. Kagame, or the next Hosni Mubarak, will be favored by decree of the State Department no matter how vast his alleged wrongful acts, today, because he has won the favor of a particular State Department wishing to conceal its own wrongful acts.  But, as we know, Mr. Mubarak is no more, and administrations change, it is only facts and the rule of law that endures beyond today’s events and administration.

New Policy Bottom Line: Foreign Leaders’ Immunity to Exceed U.S. Presidents

Ironically, in rejecting the limits of Samantar and Clinton v. Jones, the new State Department policy will also mean that the head of foreign states or organizations, like Mr. Kagame and Mr. Strauss-Kahn, will be entitled to immunity in U.S. courts far exceeding that of U.S. Presidents who are bound by those cases.  Mr. Obama’s State Department is suggesting immunity for Mr. Kagame, that Mr. Obama cannot “suggest” for himself.   If Mr. Strauss-Kahn or any future individual-official defendant is found to be immune for acts outside their official capacity, or committed before taking office, they will have the Obama State Department’s Suggestion of Immunity for President Paul Kagame to thank.

If Kagame’s immunity is permitted to stand, it should open the possibility of immunity for just about any indicted criminal fortunate enough to find State Department favor.  Mr. Strauss-Kahn is only the beginning.

Leave a Reply