Though criminal sexual assault charges were dismissed against Dominique Strauss-Kahn last summer, the disgraced former head of the International Monetary Fund will be facing his accuser in another court.
The first substantial hearing in the suit filed by the Sofitel housekeeper last year against Strauss-Kahn is set for Wednesday — when defense lawyers will ask a Bronx County supreme court judge to dismiss the lawsuit because they say diplomatic immunity shields Strauss-Kahn from any civil liability in New York.
The hearing will not visit any of the substantive allegations the maid, Nafissatou Diallo, has made in her lawsuit against Strauss-Kahn — including that he forced her to perform oral sex on him and also tried to rape her.
The argument Wednesday will focus on a complicated web of international laws that govern when public officials are insulated from civil liability in their host countries.
Strauss-Kahn had asserted diplomatic immunity when he was arrested last May, police said, but he resigned from his position a few days later. The IMF has maintained that Strauss-Kahn was in New York on personal business.
To win on the diplomatic immunity issue, Strauss-Kahn’s lawyers have to persuade the court that Strauss-Kahn enjoyed absolute immunity –even for personal conduct not done under the auspices of the IMF – and that he was immune from civil liability when he was served with the complaint, which was after he had already resigned.
In legal papers filed last fall, Strauss-Kahn’s lawyers argue he enjoyed absolute immunity for all conduct — even personal — during his trip to New York last May under customary international law as embodied in the “Specialized Agencies Convention,” a 1947 United Nations agreement.
The defense’s theory is that the agreement granted absolute immunity to the heads of “specialized agencies,” and the agreement expressly designates the IMF as a specialized agency.
However, the U.S. never signed that agreement.
But Strauss-Kahn’s lawyers contend the agreement is so commonly accepted, it falls into the category of “customary international law,” a principle U.S. courts have recognized to mean the legal norm around the world.
Diallo’s lawyers reject this reading of the customary international law, and argue the articles that created the IMF provided only for limited immunity – protection from liability only when conduct is done on IMF business.
There is no dispute that Strauss’s stay at the hotel was unrelated to his official duties as IMF head. Diallo’s lawyers also point to federal statutes that helped codify some of the IMF’s articles – the International Organizations Immunities Act and the Bretton Woods Agreement — and argue that those statutes also only provide for limited immunity.
As for the issue of whether Strauss-Kahn can invoke diplomatic immunity after his resignation, his lawyers argue their client enjoyed immunity when he was served with Diallo’s complaint because he was not permitted to leave the United States by court order.
Strauss-Kahn’s lawyer was served with the complaint on August 8, 2011, while he was still under house arrest in a swanky townhouse in Tribeca. They contend that international law extends immunity after a resignation if circumstances prevent the former official from leaving the host country.
The Manhattan District Attorney dropped the case last August, after disclosing to the judge that they no longer believed Diallo’s account of the alleged attack was credible. Diallo has continued to insist that her allegations were truthful.
Strauss-Kahn’s defense lawyers declined to comment. Diallo’s lawyer did not immediately respond to a request for comment.