Judge Blocks Punitive US Sanctions on UN Rapporteur Francesca Albanese

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In wonderful news from the District Court in Washington, D.C., Judge Richard Leon has blocked the imposition of US sanctions on Francesca Albanese, the tenacious UN Special Rapporteur on the Occupied Palestinian Territories, who, since Israel’s exterminatory assault on Gaza began, 31 months ago, has been fearless and indefatigable in her support of the Palestinians, and her condemnation of Israel’s almost innumerable crimes — including war crimes, crimes against humanity and genocide — and has also condemned the countries and companies that have been complicit. See her reports here: “Genocide as colonial erasure”, “From economy of occupation to economy of genocide”, “Gaza Genocide: a collective crime” and “Torture and genocide.”

The 26-page ruling, a preliminary injunction, will be particularly irritating for the Trump administration, because Judge Leon cannot be dismissed as a “left-wing activist judge.” An appointee of George W. Bush, he first came on my radar in 2008-09, when, as a judge dealing with the habeas corpus petitions of prisoners at Guantánamo, he became notorious for his frequent rulings against the prisoners, including one particular case which I condemned as How Cooking For The Taliban Gets You Life In Guantánamo.

The latest case before Judge Leon was brought in February by Albanese’s husband, who, like her, is an Italian citizen, and by their daughter, who is a US citizen, seeking a preliminary injunction against the decision, last July, by US Secretary of State Marco Rubio, to designate Albanese as a foreign national who has “directly engaged with the International Criminal Court (ICC) in efforts to investigate, arrest, detain, or prosecute nationals of the United States or Israel, without the consent of those two countries.”

In his press statement, Rubio added, “The United States has repeatedly condemned and objected to the biased and malicious activities of Albanese that have long made her unfit for service as a Special Rapporteur”, claiming, hysterically, that she ”has spewed unabashed antisemitism, expressed support for terrorism, and open contempt for the United States, Israel, and the West.”

As well as objecting to her alleged “bias”, which “has been apparent across the span of her career, including recommending that the ICC, without a legitimate basis, issue arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant”, Rubio also claimed that she “has recently escalated this effort by writing threatening letters to dozens of entities worldwide, including major American companies across finance, technology, defense, energy, and hospitality, making extreme and unfounded accusations and recommending the ICC pursue investigations and prosecutions of these companies and their executives.”

He added, “We will not tolerate these campaigns of political and economic warfare, which threaten our national interests and sovereignty.”

The designation followed on from a disgraceful executive order issued by Donald Trump last February, “Imposing Sanctions on the International Criminal Court” (E.O. 14203), in response to the brave decision by the chief prosecutor, Karim Khan KC, to issue arrest warrants in November 2024 for Netanyahu and Gallant, for war crimes and crimes against humanity in Gaza.

The executive order claimed that the ICC “has engaged in illegitimate and baseless actions targeting America and our close ally Israel”, and hysterically concluded that this “constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States”, with Donald Trump stating, in the text, “I hereby declare a national emergency to address that threat.”

Although the US government signed the 1998 Rome Statute establishing the ICC, the Senate never ratified it, and, as a result, the Trump administration was able to launch a vile witch hunt against its judges in the wake of the ruling, culminating in the sickening executive order last February, which applied sanctions to Karim Khan, followed by the imposition of draconian sanctions against eight ICC judges and two prosecutors — four in June, four more in August, and two more in December.

The executive order also made clear that its sanctions regime was specifically designed to protect not only US individuals from pursuit by the ICC, but Israelis as well, via its insistence that “protected persons” include “any foreign person that is a citizen or lawful resident of an ally of the United States that has not consented to ICC jurisdiction over that person or is not a state party to the Rome Statute”, including “current or former members of the armed forces of such ally of the United States”, and “current or former elected or appointed government officials of such ally of the United States”; in other words, Netanyahu and Gallant.

The executive order also authorized sanctions against “any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality”, and Albanese’s designation under this application of the executive order led to the US Department of Treasury’s Office of Foreign Assets Control adding her to its “Specially Designated National List” (SDN).

This imposes punitive sanctions and travel bans, affecting not only her, but also her husband, who works for the World Bank, and her daughter, who is a US citizen, born during the time (2012-15), when Albanese and her husband “purchased a home, opened a U.S. bank account, and took out a mortgage.” They left when her husband was relocated to an assignment outside the US, but they “kept their D.C. residence and routinely travel to the United States.”

Judge Leon’s devastating ruling

Judge Leon, to his credit, was bracingly unconvinced by the government’s supposed justification for including Albanese in the sanctions imposed on the ICC judges and prosecutors.

The judgment was specifically notable for Judge Leon’s well-argued assertion that the sanctions imposed on Albanese invented an association between her and the ICC that doesn’t exist, and that infringes on her right to free speech under the First Amendment.

As he noted, “Secretary Rubio’s statement asserts that Albanese ‘directly engaged with the [ICC] in efforts to investigate, arrest, detain, or prosecute nationals of the United States or Israel’ by “recommending that the ICC … issue arrest warrants targeting” Israeli officials and by “recommending the ICC pursue investigation and prosecutions” of American companies” (emphasis added).

As he explained, “Albanese does not work for the ICC, nor does she have any ability to direct action by the ICC. As such, the only way Albanese has engaged in any ICC effort to ‘investigate, arrest, detain, or prosecute a protected person’ is by offering her non-binding opinion and recommendation — in other words, by speaking!” As he reiterated later in his judgment, “Albanese has done nothing more than speak!”

As he proceeded to explain, “the ‘principle justification’ for her designation is to ‘respond’ to the expression of opinions that defendants think ‘extreme.’” However, “If Albanese instead opposed ICC action against U.S. and Israeli nationals, she would not have been designated under E.O. 14203. Thus, the effect of Albanese’s designation is to ‘punish’ and thereby ‘suppress disfavored expression.’”

As he further described it, “By sanctioning Albanese under E.O. 14203, defendants are punishing Albanese for merely recommending that the ICC prosecute certain individuals — a non-binding opinion that does not compel any action on the part of the ICC. As the Supreme Court put it when distinguishing speech from non-speech, ‘independently advocating for a cause is different from providing a service.’ Defendants’ own statements demonstrate that independent advocacy is at the heart of the sanctions against Albanese! Because Albanese’s designation under E.O. 14203 ‘unnecessarily circumscribe[es]’ her ‘protected expression,’ it violates the First Amendment.”

In conclusion, Judge Leon stated that “protecting the freedom of speech is ‘always’ in the public interest. That is so even when an individual’s views are ‘hurtful,’ ‘caustic,’ or ‘even outrageous,’ as defendants clearly believe Albanese’s speech to be. Indeed, the ‘proudest boast’ of our First Amendment is that it protects the freedom to express even ‘the thought that we hate.’ Enough said.”

Turning to the damage caused to Albanese and her family by the sanctions, Judge Leon noted that she “has suffered severe ramifications”, and proceeded to explain that she is “barred from entering the United States, which prevents her from traveling to the headquarters of the United Nations”, has been been “fully unbanked and cannot make or receive payments through the financial system”, was “removed from her joint U.S. bank account with her husband”, and has “subsequently been denied bank accounts at several European banks.” He also noted that “her husband’s employer-sponsored health insurer has ‘refused to pay [her] health expenses’”, and that several US universities have “severed their longstanding ties” with her, including Georgetown and Columbia.

Judge Leon also noted that, as an “immediate family member” of a sanctioned individual, Albanese’s husband “is barred from entering the United States”, and “therefore cannot travel to the headquarters of his employer, the World Bank”, adding that he has also been “suspended from existing positions at the World Bank and faces ‘severely constrained’ options for future positions within the organization”, and also noting that he “cannot travel to Washington, D.C. to supervise the upkeep or sale of his and his wife’s property.”

Their daughter, meanwhile, “is effectively barred from returning to her native country given the travel restrictions on her parents”, and also faces civil or criminal liability under the Order for “any contribution or provision of funds, goods, or services by, to, or for the benefit of her mother”, restrictions that “impose an enormous chilling effect on [her] mental well-being and constitutional rights.”

All of the above, he concluded, meets the threshold for the infliction of unjustifiable harms that must be lifted.

What happens now?

While we wait to see if the Trump administration will appeal Judge Leon’s ruling, Francesca Albanese herself posted the following message after it was delivered: “The interim decision by the US judge gives me respite but the battle is not over. ICC judges and Palestinian NGOs remain sanctioned with no recourse to justice. The stakes are incredibly high.”

The Palestinian NGOs she mentioned are Al-Haq, Al Mezan Center for Human Rights (Al Mezan), and the Palestinian Centre for Human Rights (PCHR), which were subjected to sanctions in September, when Marco Rubio suggested that all three organizations had “directly engaged in efforts by the International Criminal Court (ICC) to investigate, arrest, detain, or prosecute Israeli nationals, without Israel’s consent.”

As she added in her post, “Please sign and share the petition: DEFEND THE DEFENDERS!”, a petition to the European Commission, which can be found here. 

No one should be in any doubt that the impacts of sanctions on the ICC judges, and on the Palestinian NGOs, are as punitive and far-reaching as the effect of sanctions on Francesca Albanese, and must also be overturned.

In February, the Guardian spoke to some of the sanctioned judges, including Kimberly Prost, a Canadian, who pointed out that she was now ”on the same list as terrorists and those involved in organized crime.” She called the sanctions “coercive measures designed to attack our ability to do our jobs objectively and independently”, and added, “We want people to appreciate how wrong this is.”

As well as causing huge hardship to the judges, the sanctions also, of course, threaten the ability of the ICC to undertake any of its other work, a blow that is clearly aimed at the Court by Israel and the US in an effort to destroy it completely.

We must all try to ensure that that doesn’t happen.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of a photo-journalism project, ‘The State of London’, which ran from 2012 to 2023), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (see the ongoing photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo”, which you can watch on YouTube here.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and, in 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to try to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody.

Since 2019, Andy has become increasingly involved in environmental activism, recognizing that climate change poses an unprecedented threat to life on earth, and that the window for change — requiring a severe reduction in the emission of all greenhouse gases, and the dismantling of our suicidal global capitalist system — is rapidly shrinking, as tipping points are reached that are occurring much quicker than even pessimistic climate scientists expected. You can read his articles about the climate crisis here. He has also, since, October 2023, been sickened and appalled by Israel’s genocide in Gaza, and you can read his detailed coverage here.

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