Dominique Strauss-Kahn Asserts Diplomatic Immunity in Maid's Civil Suit

By Jeralyn, Section Crime in the News
Posted on Mon Sep 26, 2011 at 09:12:25 PM EST
Tags: Dominique Strauss-Kahn (all tags)

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Dominique Strauss-Kahn didn't have dipolmatic immunity in the criminal case with the New York hotel maid, but are civil cases different? Strauss-Kahn filed a motion to dismiss Nafassitou Diallo's lawsuit today saying the court lacked jurisdiction over him. The NY Daily News reports:

in the court papers, Strauss-Kahn's lawyers argued that a different standard, the UN Specialized Agencies Convention, grants the top official of international organizations like the IMF "absolute diplomatic immunity."

That the United States never signed on the Specialized Agencies Convention is of no matter, the lawyers argued, because so many other countries have signed it. It has now "achieved the status of what is known as customary international law," they said.

[More...]

Diallo's lawyer continues with the over-the-top media quips:

"This baseless motion is another desperate attempt to avoid having to answer for the deplorable acts he committed against Ms. Diallo." (My emphasis)

DSK's lawyers also filed a motion to strike "paragraphs in Diallo's lawsuit that detail the encounter as fact from her perspective."

I haven't seen a copy of the pleadings (the case is in state court and not on PACER) so I can't say whether I think he's got a good claim. (Update: The motion is here, thanks to Marie Juliette in comments. I'll update again after I've read it.)

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Dominique Strauss-Kahn Asserts Diplomatic Immunity in Maid's Civil Suit | 13 comments (13 topical)

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This seems a tad over the top too: (5.00 / 2) (#1)
by oculus on Mon Sep 26, 2011 at 09:32:54 PM EST

That the United States never signed on the Specialized Agencies Convention is of no matter, the lawyers argued, because so many other countries have signed it. It has now "achieved the status of what is known as customary international law," they said.

: It's too big to fail too :) (none / 0) (#9)
by Militarytracy on Tue Sep 27, 2011 at 09:17:01 AM EST

Everything is too big to fail now, it is the thunderous chant of the rich and those who serve them :)

DSK's motion to dismiss (none / 0) (#2)
by mjsteinsvold on Mon Sep 26, 2011 at 10:23:52 PM EST

Hello Jeralyn,

I am not a lawyer but I've been reading your blog regarding the DSK case and I found it very enlightening.

When I found out the basis for their motion to dismiss (immunity), I, too, was a bit puzzled. Now, my intuition tells me maybe it's better to try and get a case dismiss on a technicality than just on the basis that the case has no merit because she's after money (which she obviously is)? My understanding is that the argument that the criminal charges were dropped wouldn't hold because civil and criminal are two different courts. So why not aiming high to settle in the middle and get parts of the "pamphlet" Thompson filed for the lawsuit erased? Anyway, should the case go to trial, DSK's lawyers would have no difficulty to crush Nafissatou Diallo's testimony.

Here is the link to the motion to dismiss:
http://www.lefigaro.fr/assets/pdf/2011-09-26-memo.PDF

Hope you'll read it and post your thoughts/analysis of it.

Sincerely,
Marie-Juliette Steinsvold

Standard of proof in criminal case is (none / 0) (#3)
by oculus on Mon Sep 26, 2011 at 10:29:02 PM EST

beyond a reasonable doubt and requires a unanimous jury for conviction. In a civil matter, the standard of proof is more probable than not and, at least in CA, doesn't require a unanimous jury. 9 of 12 is sufficient.


After reading the brief (none / 0) (#5)
by Jeralyn on Tue Sep 27, 2011 at 01:22:21 AM EST

DSK's lawyers' filed, I don't have any insight. It's way too specialized and complicated an area of law to learn in a few hours.

One of the questions I have is whether this motion is an invite for the judge to ask the State Department for its position on whether DSK is someone with immunity. The cases it refers to seem to suggest that NY judges won't interfere with the executive branch's position. In past cases, the state dept has weighed in for immunity for some govts from individual lawsuits. That DSK is an individual rather than the state or organization doesn't seem to matter. If the State Dept. were to opine that he should have immunity, it's likely a court would follow suit. So the question may be, what will the U.S. position on this be and will they take a position?

I tend to think this motion was drafted with DSK's lawyers already knowing the answer, and that the U.S. or state dept. will back him on immunity from civil suits. Otherwise they would look silly when the U.S. refuses to back them up or take a stand.

OTOH, this is way outside my field and maybe I misinterpreted the case they cited (in which the judge said he wouldn't substitute his opinion for the executive branch.)


A good primer (none / 0) (#6)
by jbindc on Tue Sep 27, 2011 at 07:45:56 AM EST

From two posts at Opinio Juris.

Duncan Hollis post

and

Chimene Keitner post

Even the IMF did not recognize immunity in the criminal case.

Now these addressed the issue of diplomatic immunity for the criminal case, but it seems like it could apply to a civil case as well. I'm not sure, but it's a starting point.


: those are about the criminal case (none / 0) (#12)
by Jeralyn on Tue Sep 27, 2011 at 10:56:47 AM EST

DSK never asserted immunity in the criminal case. I don't think it's a good starting point.
A better starting point for the argument he is making is the cases and conventions (like the one on special missions) he cites in the brief. I read them last night, and was left (a) uncertain and (b) with the impression that it turns on whether the U.S. recognizes the agency of the IMF (and therefore DSK by extension) as coming under the Vienna Convention or Special Commission.
While the immunity conferred by the FSIA is limited to acts done in official capacity, diplomatic immunity is not. Courts have held that if the US (executive branch) recognizes someone has diplomatic immunity, they won't intervene and the person is immune from civil suit.
The motion attached DSK's travel documents. From the linked article:

Strauss-Kahn's travel documents are stamped "DIPLOMATIC" in bright red lettering, and signed by the Secretary-General of the United Nations. The documents recite in six languages that the bearer is entitled to international immunities, according to the court documents.

If the State Dept said he (none / 0) (#13)
by Green26 on Tue Sep 27, 2011 at 10:57:53 AM EST

had or should have immunity, I'd be fine with the case being tossed for that reason. That's much different than arguing that most other countries would give immunity, or have adopted the immunity agreement, so therefore he has immunity in the US (even if the US hasn't adopted the agreement).


Sure hope the US standard (none / 0) (#4)
by Green26 on Mon Sep 26, 2011 at 11:15:29 PM EST

for international agreements and treaties, isn't that if many other countries sign it, then it applies to the US too. Jeez, looks like a horrible argument to me.

Or how about this one? If most states have a law, then it applies to all states?

Uh, no (none / 0) (#7)
by jbindc on Tue Sep 27, 2011 at 07:48:31 AM EST

You could have a law in 49 states. That does not mean it's the law in the 50th state.

For example, all states except Louisiana raised the drinking age to 21. Louisiana raised it years later, but in those intervening years, that didn't mean that Louisiana had to recognize and enforce a 21-year old drinking age just because every other state did.


I am pretty sure that a widely-agreed upon (none / 0) (#8)
by Peter G on Tue Sep 27, 2011 at 09:06:02 AM EST

treaty provision may be some evidence of what is "customary international law," but it cannot make something "customary" -- and thus binding on all nations, regardless of whether they have entered into a treaty -- that otherwise wasn't or wouldn't be. Seems to me that would have to be the rule, or the actions of separate sovereigns whether to be bound by the treaty, as reflected in their respective decisions to sign or not, would be meaningless.


: Otherwise, U.S. would be subject to (none / 0) (#11)
by oculus on Tue Sep 27, 2011 at 10:37:47 AM EST

the court in The Hague.

The DKS argument may (none / 0) (#10)
by KeysDan on Tue Sep 27, 2011 at 10:36:09 AM EST

have as its intent, leverage for a quick and limited settlement with Diallo.