A Rash Move: U.S. Sanctions Undermine the Privileges and Immunities of UN Special Rapporteurs

[Alyssa Yamamoto is the Senior Legal & Policy Advisor at the Atlantic Council Strategic Litigation Project, a Legal Advisor with the End Gender Apartheid Campaign, and a Visiting Fellow with the University of Minnesota Law School’s Human Rights Center.

Professor Fionnuala Ní Aoláin KC (Hons) is a Regents Professor and Robina Professor in law, public policy and society at the University of Minnesota and Professor of law at the Queen’s University of Belfast. She served as United Nations Special Rapporteur on Counter-Terrorism and Human Rights from 2017-2023.]

This summer, U.S. Secretary of State Marco Rubio announced the imposition of sanctions on Francesca Paola Albanese, UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (Special Rapporteur), pursuant to Executive Order 14203, “Imposing Sanctions on the International Criminal Court” (ICC). This is in addition to the sanctions on ICC Prosecutor Karim Khan, two rounds of sanctions against eight ICC judges for their involvement in cases linked to Israel, and the unprecedented sanctions against Palestinian NGOs engaged with the ICC. 

These sanctions affirm the Trump administration’s sustained undermining of international justice institutions, further underscoring its multifaceted, comprehensive attack on advocates perceived to criticize Israel’s ongoing conduct in the war in Gaza. Not only are the sanctions an indefensible attack on the ICC–a court of last resort for victims and survivors of horrendous atrocities–but the extension to the UN Special Rapporteur creates a particularly “dangerous precedent” that undermines the very architecture of the UN human rights system. 

As this piece explains, the sanctions on a UN expert fly in the face of the privileges and immunities of UN Special Rapporteurs, in contravention of U.S. obligations under international and domestic law. Until now, States have generally understood that respecting the privileges and immunities of internationally appointed experts (whose roles are created, appointed, and sustained by those same States) is necessary to uphold our international institutions and protect the diplomats who serve them. 

The Sanctions Undermine the Special Rapporteur’s Functions

According to the U.S. Government, the sanctions against the Special Rapporteur were “deem[ed] necessary to respond to lawfare, to check and prevent illegitimate ICC overreach and abuse of power, and to protect our sovereignty and that of our allies.” Specifically, the announcement cites Special Rapporteur Albanese’s engagement with the ICC “in efforts to investigate, arrest, detain, or prosecute nationals of the United States or Israel, without the consent of those two countries,” and her recent UN report on the role and liability of corporations–including U.S. companies–in Israel’s alleged “economy of illegal occupation, apartheid, and now genocide.”

In other words, the U.S. Government has sanctioned the Special Rapporteur for the very work she is mandated by the United Nations to undertake. Special Rapporteurs are independent, unpaid experts required  by the UN Human Rights Council to investigate, assess, and report on human rights issues from a thematic or country-specific perspective. Special Rapporteur’s Albanese’s mandate was first established by the Commission on Human Rights–the predecessor to the Human Rights Council–in 1993, stipulating three core activities:

(a) To investigate Israel’s violations of the principles and bases of international law, international humanitarian law and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian territories occupied by Israel since 1967;

(b) To receive communications, to hear witnesses, and to use such modalities of procedure as he may deem necessary for his mandate;

(c) To report, with his conclusions and recommendations, to the Commission on Human Rights at its future sessions, until the end of the Israeli occupation of those territories

While the resolution establishing the mandate “call[ed] upon Israel to cooperate with the Special Rapporteur,” it is not uncommon for Special Rapporteurs to scrutinize Member State human rights records absent consent (consent is only required for physical field visits). To ensure the Special Rapporteur does what States have asked her to do–specifically investigate Israel’s potential violations of international law–the Special Rapporteur must operate  through the “modalities of procedure” she deems necessary. She and many other Special Rapporteurs regularly report findings to the UN and the international community, including vis-a-vis the potential complicity of third State and non-State actors. This work is not exceptional; it all falls squarely under her mandate. And, to note the obvious, the same kind of scrutiny is applied to multiple States and to non-State actors by multiple Special Procedure mandates and Working Groups.

According to their Manual of Operations, Special Procedures communicate regularly with a range of stakeholders, including non-State actors, international organizations, and other entities when implementing their mandates, including in follow-up “measures taken to encourage, facilitate and monitor the implementation of recommendations.” Though Special Rapporteurs are not judicial entities, their factual and legal analyses are often relied upon and communicated to domestic and international courts. 

Privileges & Immunities of UN Special Rapporteurs under U.S. Law 

The UN Office of Legal Affairs has reportedly asserted the Special Rapporteur’s official UN mandate and privileges and immunities to the US Mission to the UN. Although the note verbale is not public, presumably the Office invoked the Convention on Privileges and Immunities of the United Nations (General Convention), which the U.S. sanctions squarely contravene. The General Convention provides “experts on mission” like the Special Rapporteur with immunity from “legal process of every kind” with respect to “words spoken or written and acts done by them in the course of the performance of their mission” (Art. VI, Sec. 22(b)) and grants inviolability for all their “papers and documents” (Sec. 22(c)). Such “legal process” comprises judicial, executive, and administrative measures, including the executive order pursuant to which the Special Rapporteur has been designated.

The International Court of Justice has twice confirmed in advisory opinions that UN Special Rapporteurs enjoy the privileges and immunities provided to “experts on mission” by the General Convention in the course of performing their functions, including vis-a-vis an attempt by a State to force out a Special Rapporteur for purported ill health and inadequate “intellectual capacity” and a State’s defamation lawsuits for a Special Rapporteur’s media interviews criticizing the domestic judiciary. The purpose of such privileges and immunities is “to safeguard the independent exercise of their functions” and “perform his duties satisfactorily.” This is why they apply broadly to “embrace in general the tasks entrusted to a person,” wherever the experts are located, regardless of their nationality or country of residence.

The U.S. Government is obligated to respect these privileges and immunities. The General Convention to which the United States is a party is a self-executing treaty that is binding as a matter of federal law, and further, the International Organizations Immunities Act independently provides designated international organizations, including the United Nations, privileges and immunities. Notably, the United States has historically recognized that UN experts on mission enjoy “special immunities under the U.N. General Convention” (Transcript of January 19, 2007 Hearing at 515, United States v. Chalmers, No. 05-CR-59 (DC) (S.D.N.Y. Feb. 23, 2007), ECF No. 242).

We further observe that the core international crimes in dispute also may give rise to ergo omnes obligations under international law not just to respect the immunity of UN experts, but more fundamentally, not to take part in the alleged war crimes, crimes against humanity, and genocide at issue–at the very minimum, where their prohibition forms part of jus cogens or peremptory norms of international law. 

Chilling Effects of the Sanctions

The underlying Executive Order stipulates several striking measures against designated persons like the Special Rapporteur, with limited exception: blocking U.S. assets (Sec. 1); prohibiting the provision of “funds, goods, or services” to or for the benefit of designated persons (Secs. 2-3); and refusing entry to the United States (this extends to the designated person’s immediate family too) (Sec. 4). 

Without getting into the illegality and imprudence of the Executive Order, such measures pose significant professional and personal consequences for the Special Rapporteur and her mandate. The potential travel restrictions to the United States could directly interfere with her mandate to report to the UN General Assembly and the prohibition of funds and other services could risk restricting financial support to her mandate–especially since UN Special Rapporteurs are unpaid by the UN and often rely upon external funding. Recognizing the global nature of the banking system, the derisking consequences could also be deleterious. 

It seems the real objective of the sanctions is intimidation and reprisal for the crux of the Special Rapporteur’s human rights investigations and reporting mandate. The sanctions risk creating a chilling effect not only for the Special Rapporteur, but also her team and any U.S. or non-U.S. persons that engage with her mandate–including now more clearly than ever, the civil society ecosystem that lacks the same privileges and immunities. 

If the sanctions go unchallenged, they also serve as a greenlight to other States to try to undermine and dismantle Special Procedures–in total, 47 thematic and 13 country-based Special Procedures mandate-holders that are simply exercising the functions mandated to them by the international community. This kind of unchecked bullying by one State could set a terrible precedent for others States to simply pick and choose which Special Rapporteurs they support and which they sanction. There are Special Rapporteurs on multiple country situations, including Russia and Afghanistan. The cost of the present sanctions may be to imperil the work of other mandate holders, including those that the United States and vast majority of States have long-supported.

Paths Forward 

As the UN High Commissioner for Human Rights Volker Türk has expressed, “Even in face of fierce disagreement, UN Member States should engage substantively and constructively, rather than resort to punitive measures.” The very purpose of interactive dialogues where mandate-holders present their findings to the Human Rights Council and General Assembly is to provide States an opportunity to pose questions and constructively engage. The communications system further provides Special Procedures an opportunity to engage directly with relevant States and non-State actors. Moreover, the UN Special Procedures system, with the advice and support of States, has established a formal coordination mechanism that is well-used by States to raise issues about the reports, positions, behavior, and practices of any Special Procedures mandate. The system is there to be used if a State believes a mandate holder has acted ultra vires her mandate or has any legitimate cause for concern. Here, the Coordination Committee of the Special Procedures of the Human Rights Council has clearly confirmed that the Special Rapporteur has only been discharging her mandate, in line with the Code of Conduct for Special Procedures mandate holders.

Ultimately, if the Special Rapporteur’s privileges and immunities are disputed, the Secretary-General plays a deciding role (Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, Regulation 1(e)). Given how well-settled the privileges and immunities of Special Rapporteurs are in exercising their functions, the Secretary-General can–and should–engage directly with the United States to challenge the sanctions. As it has done in the past, the United Nations could also request an ICJ advisory opinion confirming the applicability of privileges and immunities. States could even explore a contentious case against the United States. 

At a time when the multilateral system and human rights law are increasingly under attack, full-fledged support and resistance is needed more than ever to protect the “crown jewel” of the UN human rights system.