A colleague of mine from old FCO days has a droll self-immolatory story about Dominique Strauss-Kahn, the head of the IMF who now faces serious criminal charges in New York.
Years ago there was a tradition in the FCO that an Embassy would send short reports back to London if a notable foreign visitor passed through town. DSK indeed did pass through town, in his earlier capacity as a junior French Minister.
The Embassy duly sent a report back to London about this momentous visit, but did not quite do quite enough, hem, basic research. The telegram described DSK throughout as ‘she’, my colleague having been lulled into a false sense of security by the name ‘Dominique’.
Hahahaha. How the other Embassies in Europe smirked.
I wonder. If Dominque indeed had been a top IMF woman (and a lesbian) and had tried aggressively to grope a passing hotel chambermaid, how different would the whole story be now?
Anyway, as I noted earlier today there are interesting questions about how far if at all DSK might enjoy diplomatic immunity. Initial media reports fed on each other to say that he clearly did not, as the IMF accepts immunity only for ‘acts done in the course of official duties’, which the alleged assault of a chambermaid clearly wasn’t.
For a more informed view which suggests that (needless to say) things might not be so clear-cut, read this elegant piece by Duncan Hollis over at the Opinio Juris groupblog which quotes the State Department guidance thusly:
Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts.
If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the U.S. Department of State before arresting a consular officer, or, if not possible, immediately after arrest.
So if DSK can pull together some sort of argument that he was in the hotel as part of his official business and that this act (if any) took place ‘in connection with’ that official business, the case arguably ends there.
Hence some hard thinking must be going on at the higher levels in Washinton.
On the one hand, DSK is a decent enough sort – in his IMF day job – and it would be a pity to see him embroiled in a courtroom scandal for months. Plus he might beat Sarkozy for French President if the issue quickly fades out – again, not so bad as he ‘gets’ the US position on many key economic issues. So there’s a case for making some telephone calls to try to get the problem sorted by the immunity route.
On the other hand, with the 2010 elections now coming into view.,who needs to enrage the feminist lobby (likely to have an unholy alliance with US conservatives on this one) by being seen to intervene to help DSK escape having to answer for his behaviour in court? Hillary Clinton won’t want smirking comparisons with Bill/Monica erupting and might not be cooperative with the White House.
Oh, and if DSK escapes prosecution under diplomatic immunity, what about an angry chambermaid berating President Obama on cable TV networks for months on end? Phew. So there’s a case for piously letting the New York courts make of it what they will, and not pushing any one view through the State Department or otherwise.
In short, on the one hand is a formal legal position. And on the other are all the legal and political and moral complexities of taking those legal norms and applying them to real-life situations.