It would not be an over-statement to describe the events surrounding Dominique Strauss Kahn in the aftermath of Sunday May 8th May, 2011 as surreal. Not because of the sordid nature of the allegations, but rather for the following two reasons. First, coverage of the events was imbued with paradoxes at every level, irrelevant minutiae and contradictions. Second, the absence of common sense, even due process, that appears to have dominated the response to the allegations.
In addition, there are questions regarding the legal analysis afforded to the classification of his stay in New York with the necessary implications that it carries. It would appear rather simplistic and pre-emptive, to arrive at the conclusion that he was not on official travel in New York. Clearly, DSK was not performing official duties on the day in question. However, given the IMF travel policies that incorporate stop-overs on long haul travel, if this stay was indeed a stop-over it may be classified not as purely personal travel but as official or quasi-official travel. The distinction appears to have been afforded inadequate attention. Like the fact of his “day-trip” in New York, the conclusions drawn from the cost of the hotel suite do not necessarily carry any weight and may have been inappropriately afforded undue legal importance. The absence of the Sofitel from the list of preferred hotels and the Sofitel rate being in excess of the Fund rate for that city could easily have been explained if he chose to pay the excess costs of the accommodation from his personal account. In any case, this fact really ought to deserve little if any consideration in the determination of the legal issues as to the classification of his stay. Instead, what is astoundingly apparent is that, in balancing this matter, a judgment was made, that in principle diplomatic immunity normally afforded IMF staff in the conduct of official duties would not be appropriate in these circumstances to shield him from the allegations of such egregious conduct. To justify such a finding, the side-trip may have been classified as purely personal travel – when in fact such short trips are routinely part of official missions for the IMF, intended to afford relief from the rigors of long-haul travel. Indeed, the classification appears to be more of an impulsive human response than a comprehensive legal analysis.
That this would have been the wrong basis for that determination is not reflective or informed by the Fund’s travel arrangements. It is not to be assumed that this was purely personal travel even if he is not afforded immunity in accordance with that usually afforded staff in full performance of official duties. The larger and more pertinent question that needs to be resolved for the IMF from this is whether stop-over travel constitutes official travel and the legal consequences of this determination. It would be in the interest of the Fund to address this question in its legal context. At a minimum, there is a case for examining the issues of diplomatic immunity further.
Regardless of the ultimate judicial finding in this matter, the pre-trial publicity could arguably be said to be highly damaging both to the judicial process, to the presumption of his -or any individual’s – innocence. If there is any “special” treatment thus far, it would appear to be a case of particularly punitive measures as though to reflect the difference in social status and rank between the alleged victim and defendant. Surely, if this is the case it is rather discriminatory in the reverse. Regardless of such social factors, it does not justify discriminatory treatment. Unduly punitive treatment ought not be justified on this basis even if more in the undertone and message of the response to the claims. Moreover, It would be tragic if the professional accomplishments of this man in bringing about significant changes in global economic governance in a post-crisis era become swept away in the proverbial carpet on account of the salacious details of this event. He has been a pivotal force in post-crisis reforms and in global economic governance. It may be ironical if this event in New York demonstrates that economic co-operation has hugely outpaced cultural norms and co-operation. The tragedy appears to be one for the global co-operation process.
It raises important legal questions that need to be clarified as to the limits of diplomatic immunity in the context of international organizations– not based on the jurisdiction or location of the Fund staff member, but based on the nature of the offence. Clarification is now needed as to the intention and limits of diplomatic immunity and in particular, to whether diplomatic immunity is intended to be sufficiently far-reaching as to afford a shield for all legal challenges or offences. Further, given the frequency of international travel it would be befitting to clarify whether in-transit journeys prior to or following the completion of official assignments constitute official or personal time. Such a determination needs to be made without undue regard for the costs associated with the relevant period. Perhaps such legal clarifications can enable some benefit to emerge from the media circus.
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