Unpacking the U.S. Sanctions on a UN Special Rapporteur

In its zeal to punish the International Criminal Court (ICC) for investigating in Gaza, the Trump administration in February created a sanctions program so expansive that it could be used to target even a witness or a survivor of atrocity crimes who tells their story to an ICC investigator.  With the sanctions it imposed in July on a United Nations special rapporteur, the U.S. government took a step closer toward that unconscionable end point.

Sanctioning Francesca Albanese was less of a direct attack on the ICC itself than the June 5 sanctions imposed on four of the court’s judges.  It may nonetheless have a greater chilling effect for NGOs, advocates, and others who engage with the ICC in pursuit of justice – and it may violate U.S. law or U.S. legal obligations in specific new ways.

Sanctions for speech

The Trump administration’s first five targets under its ICC sanctions program were court officials sanctioned for their prosecutorial and judicial work.  The ICC’s prosecutor requested arrest warrants against Israeli officials last year; two ICC judges were among those who approved the warrants; and two other ICC judges were among those who, in a March 2020 ruling, approved an ICC investigation in Afghanistan that included allegations of U.S. torture in its scope.

Those are all inappropriate grounds for sanctions, as Human Rights First has repeatedly said.  The ICC is an essential court supported by most U.S. allies; the U.S. view that Palestine is not a state and cannot accept the court’s jurisdiction is increasingly isolated; and the United States seldom sanctions judicial officers outside the context of a dictatorship, at least until recently.

The July 9 sanctions against Albanese went still further, in that they targeted someone who holds no law enforcement power and whose sanctioned acts – to the extent they can be discerned – appear to consist of speech that would be protected under the First Amendment if she were a U.S. person.

In his fulminating announcement, Secretary Rubio objected to a number of Albanese’s recent actions, including her calls for ICC arrest warrants against Israel’s prime minister and then-defense minister, as well as her recent letters to companies around the world regarding what she described as their complicity in Israeli atrocities in the occupied Palestinian territories.

Rubio did not make clear which of these statements or communications he found to meet the criteria for sanctions (see below).  A State Department spokesperson would only say vaguely that the sanctions were “not an action based on one action or one thing,” offering no guidance or clarity to others as to what might actually tip the scale.

The U.S. government’s sanctions powers are limited when it comes to restricting communications and information.  Under a provision known as the Berman amendment, Congress long ago revised the primary U.S. sanctions statute to make clear it does not empower the government to regulate or prohibit either communications that do not involve a transfer of value, or the import or export of informational materials.

None of the U.S. federal judges considering the various lawsuits against the ICC sanctions have yet weighed in on whether the sanctions have violated this restriction.  A federal judge in Maine on July 18 made a preliminary ruling in favor of two U.S. activists who sued because they fear penalties for interacting with the ICC’s sanctioned prosecutor, but her ruling was based on the threat to their constitutional rights.  The judge said that she had not yet seen enough evidence that the government would enforce the sanctions in a way contrary to the Berman amendment, though it is unclear whether she knew of the sanctions on Albanese.

Picking and choosing

The Trump administration also seems to have expanded or strained the terms of its own executive order in choosing which criterion for sanctions it found that Albanese had satisfied.

Rubio did not stop at accusing Albanese of having “materially assisted” the ICC’s Palestine investigation, as one of the order’s criteria for sanctions reads.  Rather, he sanctioned her under the same criterion used to sanction ICC officials for actually carrying out such an investigation, i.e., to have “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute” certain U.S. or allied persons, including Israelis.

It was already unclear what exactly that language might encompass, but Rubio’s announcement seemed to broaden it or fuzz it up even further, describing Albanese as sanctionable for having “directly engaged with the ICC” in such efforts.

The effects of the sanctions are the same regardless of which criterion is invoked.  Rubio’s statement seemed to highlight, though, that the administration is willing to play loose with the executive order’s already-expansive language in order to fit it to a desired target.

Ignoring UN immunities

This also appears to be the first time the U.S. government has sanctioned someone so closely affiliated with the United Nations.

Albanese was appointed to her role as special rapporteur on the situation of human rights in the occupied Palestinian territories by the UN Human Rights Council’s member states in 2022.  While special rapporteurs are not paid employees of the UN, they are considered “experts on mission” under key UN conventions.  The Council’s rapporteurs perform an important function, highlighting issues and advocating for improvements in human rights conditions in specific countries, or on certain topics.

As a party to the UN’s convention on privileges and immunities since 1970, the United States has taken on a legal obligation to ensure that these experts have “immunity from legal process of every kind” for “words spoken or written and acts done by them in the course of the performance of their mission.”  The U.S. government has insisted that other UN member states follow these requirements in past cases that have reached the UN’s International Court of Justice, including when Malaysian authorities allowed defamation claims to proceed against another rapporteur and when communist Romania barred another rapporteur’s travel.

Enforcing sanctions against Albanese – i.e., an asset freeze; a prohibition against U.S. persons transacting business with her; and a ban on entering the United States – would violate these obligations, and potentially those the United States has as the UN’s host country.  It will be up to UN member states whether to band together and seek a ruling on this point.

With this latest action, the U.S. sanctions program targeting the ICC remains one of the most egregious of the Trump administration’s many misuses of emergency powers.  It should not be legally risky for anybody to document and seek justice for human rights abuses simply because the U.S. government opposes it.