Special Rapporteurs enjoy full diplomatic immunity under international law. Fellow experts suggest US sanctions could be the subject of proceedings before the International Court of Justice.

The US sanctioning of the UN special rapporteur on Palestine, Francesca Albanese, has prompted calls for legal action at the International Court of Justice (ICJ) on account of her diplomatic immunity.

Albanese was sanctioned by the US on Wednesday in connection with her work as a UN expert scrutinising Israeli and US actions in occupied Palestine.

Albanese is the first mandate holder in the history of the UN to be the subject of sanctions. 

The 1946 Convention on the Privileges and Immunities of the UN, to which the US is a party, enshrines the immunity of UN special rapporteurs from legal process of any kind. 

The immunity granted to UN experts aims at enabling them to carry out their work independently without interruption. 

The ICJ, the UN's highest court, does not have jurisdiction over the US in contentious inter-state disputes without its consent. However, other states can request the UN General Assembly or other authorised UN organs to seek an advisory opinion from the court, which would constitute an authoritative legal decision. 

“The UN Secretary-General [Antonio Guterres] could protest such violations to the US directly to attempt to have them removed, or the UN General Assembly could request an advisory opinion from the ICJ,” Ben Saul, international law professor and the UN special rapporteur on counterterrorism and human rights, told Middle East Eye.

Agnes Callamard, head of the world’s leading human rights organisation Amnesty International and a former special rapporteur, said the UN as well as member states should act to shield Albanese from the impact of sanctions.

“I think what is more likely to have an impact is other governments, including Albanese’s own government [Italy] and the EU to take a very strong stand against the sanctions,” she said in an interview with MEE.

“But we cannot let the UN off the hook, and we do need to demand that it responds to the attack.”

UN Secretary-General Guterres's spokesman Stephane Dujarric on Thursday denounced the sanctions as “unacceptable” but did not outline measures that will be taken to protect Albanese.

MEE has asked Dujarric for further comment on what concrete steps the UN will take to uphold Albanese's immunity. 

Professor Balakrishnan Rajagopal, the UN rapporteur on the right to adequate housing, said the UN has a duty to act.

“Legally, the UN must take a clear stand that all rapporteurs enjoy immunity from all legal processes and must be facilitated to discharge their responsibilities during their term, including their right to attend relevant UN General Assembly sessions in New York,” Rajagopal, who is also a legal scholar, told MEE.

“The UN must also be prepared to legally defend the rights of rapporteurs before relevant international courts such as the ICJ.”

How can Albanese’s case be brought before the ICJ?

According to Professor Sergey Vasiliev, a leading expert on international courts, the sanctions against Albanese fall under the definition of “legal process of any kind” with respect to words spoken or written and acts done by them in the course of the performance of their mission, as stipulated in the 1946 Convention on the Privileges and Immunities of the UN.

“As an independent UN expert, Albanese is being persecuted by the US government exactly for words spoken and written in that capacity,” Vasiliev told MEE.

The work for which she is targeted includes her latest report, in particular, but also all her previous investigations and advocacy on behalf of Palestinians, he added.

Vasiliev explained that, according to the 1946 Convention’s dispute-settlement clause (section 30), to which the US made no reservation, any dispute concerning the interpretation or application of the Convention shall be referred to the ICJ, unless the parties agree to use another mechanism. 

“Any UN member that takes issue with the US' coercive measure could express protest and work towards framing it as a dispute on interpretation or application, with a view to bringing a case against the US to the ICJ,” Vasiliev, who is a professor of international law at the Open University in the Netherlands, told MEE. “Whether this succeeds will depend on how the ICJ interprets the first sentence of section 30 and how it addresses the issue of that state’s standing.”

Additionally, the second sentence of section 30 allows for a request to be brought to the ICJ for an advisory opinion on any legal question, in the event of a difference between the UN and one of its members, with such an opinion required to be accepted by the parties as decisive, Vasiliev explained.

The international lawyer cited the example of a 1999 advisory opinion by the ICJ in which the court confirmed that the Special Rapporteur on the Independence of Judges and Lawyers at the time, Dato' Param Cumaraswamy, was entitled to immunity from legal process of any kind after he faced lawsuits in the Malaysian courts over a critical interview published in a journal. 

The ICJ instructed the government of Malaysia to inform its courts accordingly, so that its international obligations could be given effect.

Various UN officials have spoken out against the sanctions. Guterres’s office has denounced them as “a dangerous precedent”, while the UN High Commissioner for Human Rights Volker Türk and President of the UN Human Rights Council Jürg Lauber have called for their reversal. 

“There is clearly a difference between the UN and the US arising out of the interpretation or application of the Convention. If these exhortations fail -which they likely will - the UN officials concerned should look into how the ICJ could be seized of this matter,” said Vasiliev.

'An economy of genocide'

UN special rapporteurs are independent experts appointed by the Geneva-based UN Human Rights Council to monitor, report on and advise on specific human rights issues or country situations. 

Due to their criticism of human rights policies, they are often subject to retaliation by states. Some, including Callamard and Albanese, have been declared persona non grata or threatened with lawsuits. But the sanctions against Albanese are a first.

The sanctions follow Albanese's scathing report published on 30 June, in which she named over 60 companies - including major US technology firms which she said were involved in "the transformation of Israel's economy of occupation to an economy of genocide".

The report called on the International Criminal Court (ICC) and national judicial systems to investigate and prosecute corporate executives and companies. It also called on UN member states to pursue sanctions and asset freezes. 

In his statement announcing the sanctions, US Secretary of State Marco Rubio accused Albanese of engaging in "economic warfare" against his country and of seeking to prompt ICC action against US and Israeli entities. 

The sanctions are potentially far-ranging. They will freeze any assets Albanese has in the US and would likely restrict her ability to travel to the US. 

Albanese is an Italian citizen. If the sanctions are fully enforced, they could also prohibit her from engaging in financial transactions within the European Union.

Asked by MEE on how the sanctions will impact her, her family and her ability to do her work, Albanese said: "Of course it's going to affect me ... It does matter to me and to my family. And we will hold; we will make sacrifices."

"We will do everything that it takes. We will continue to do what we do to stand against the genocide."

The ICJ is currently examining a case on the legality of Israeli attacks on the UN. The case was prompted by Israel banning the UN agency for Palestinian refugees (Unrwa) in October, an event that sparked global outrage due to accusations that Israel violated the founding UN charter, particularly the privileges and immunities of UN agencies.