On July 31, 2019, U.S. Secretary of the Treasury Steven Mnuchin, imposed an elaborate set of financial sanctions against Javad Zarif, Iran’s foreign minister. Mnuchin’s actions were taken pursuant to Executive Order 13876, issued by President Trump on June 24, which imposed sanctions on Iran’s Supreme Leader, Ayatollah Ali Khamenei, and authorizes the Department of the Treasury (Treasury) to impose sanctions on anyone appointed by him “as a state official of Iran” (among other categories). Secretary of State Mike Pompeo justified the actions by characterizing Zarif as “not merely the diplomatic arm of the Islamic Republic but also a means of advancing many of the Supreme Leader’s destabilizing policies.” The sanctions block “all property and interests in property” of Zarif within the United States or “within the possession or control of any United States person” (sec. 1), which is defined to include “the making of any contribution or provisions of funds, goods, or services by, to, or for the benefit of” Zarif or “the receipt of any contribution or provision of funds, good, or services” from him (sec. 4). To enforce the sanctions, Treasury is authorized to impose sanctions on any “foreign financial institution” that has “knowingly conducted or facilitated any significant financial transaction” involving Zarif, including prohibiting the opening of accounts by that institution in the United States (sec. 2).
Zarif, for his part, was both outraged and amused by the U.S. action. He tweeted the same day, “It has no effect on me or my family, as I have no property or interests outside of Iran. Thank you for considering me such a huge threat to your agenda.” Iran filed a statement with the UN calling the U.S. actions a “flagrant infringement” of Zarif’s immunity under international law. Critics of the move characterized the sanctions as useless at best in terms of influencing Iran’s nuclear policy or foreign policy, and reckless at worst by closing off talks with Iran’s leading international negotiator.
Zarif may be nonchalant about the sanctions, but it does not take much imagination to see their impact on his work. Suppose he goes to Vienna and needs a hotel or wants to eat in a restaurant. If the hotel or restaurant is owned by a U.S. national, that national violates the sanctions by giving him a room, serving him food, or accepting his money. If Zarif uses a credit card, the Austrian bank that processes the credit card charge (or an ATM withdrawal) could find its U.S. accounts closed. Zarif can find ways around these impediments (pay in cash and make sure Americans don’t own the place, or stay at the Iranian embassy), and he managed to visit to the G7 summit this week. But this asset freeze can affect his work as foreign minister, one in which foreign travel is essential. The United States has indicated that it is not planning to violate the UN Headquarters Agreement by prohibiting him from coming to the UN, but that is only one venue for his work.
The U.S. action against Zarif is unusual, but not unprecedented. The United States and the European Union (EU) both issued targeted sanctions – including an asset freeze — against leading Syrian governmental officials in 2011. In 2011 and 2012, the U.S. and EU respectively listed Walid al-Moallem, Syria’s Foreign Minister at the time and now. In April of this year, after instituting new targeted sanctions against Venezuela, the United States sanctioned its Foreign Minister, Jorge Arreaza.
I am not aware of any protests to these actions beyond the states to which the officials belonged. Indeed, in his 2012 report on economic sanctions, the UN High Commissioner on Human Rights gave a backhanded endorsement to such sanctions in stating that “targeted sanctions aimed at applying pressure on specific decision-makers bearing responsibility for the human rights situation typically have a less harmful impact on the population as a whole than measures targeting the economy as a whole.” (I am also not aware of how the EU and U.S. have implemented these sanctions in terms of their effects on the work of these foreign ministers.)
Nevertheless, the United States and EU actions are particularly interesting because they run right up to the line of actions against foreign ministers that states already agree would be prohibited by international law.
Customary International Law on Immunity of Foreign Ministers
The current rules are part of customary international law. (The key treaty addressing the immunities of foreign ministers, other officials, and states themselves — the 2004 Convention on Jurisdictional Immunities of States and their Property — has only 22 parties and is not in force.) Foreign ministers are part of a very small group of state actors — like heads of state or government — whose immunity is linked to their status, not their conduct. They enjoy a special immunity “ratione personae.” From that starting point, international law is clear on at least two points:
First, foreign ministers are absolutely immune from the criminal jurisdiction of foreign states for as long as they serve as foreign minister. That position was most authoritatively asserted by the International Court of Justice (ICJ) in the 2002 Arrest Warrant case, where the ICJ held that Belgium’s arrest warrant for crimes against humanity against the incumbent foreign minister of the Democratic Republic of Congo, Abdulaye Yerodia Ndombasi, was unlawful insofar as it “infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.” Although Belgium, scholars, and NGOs urged an exception to immunity for accusations of severe international crimes, the ICJ refused to accept it. The International Law Commission also recognized such immunity ratione personae in draft articles issued in 2013.
Second, foreign ministers are absolutely immune from the civil jurisdiction of foreign states for as long as they serve in that position. They thus cannot be sued in foreign courts while they are foreign minister. The United States has filed “statements of interest” in court proceedings asserting that once it has determined that a person is entitled to full immunity, the court must grant it, a position accepted by the Fourth Circuit and the Second Circuit. At the same time, the 2004 UN Convention, which includes exceptions to immunity for commercial activities by states and their agents, does not explicitly exempt foreign ministers. (Article 3(2) exempts only heads of state from the treaty’s coverage.) Regardless, the treaty’s low number of parties suggests that states do not accept a narrower immunity for foreign ministers.
The terms “criminal jurisdiction” and “civil jurisdiction” do not, however, quite map onto the way international law organizes jurisdiction and immunities. When we talk about the immunity of ministers from criminal and civil jurisdiction, we are principally talking about immunity from a state’s jurisdiction to adjudicate — to apply its law through its courts and tribunals. But foreign ministers, like states, are also immune from a state’s jurisdiction to enforce — to compel compliance with its laws. So, for instance, foreign ministers cannot be arrested or have their property seized, regardless of which state actor authorizes or carries out that act (even if the enforcement is not of a judicial order).
Immunity does not, however, apply to a state’s jurisdiction to prescribe — to make law applicable to persons, property, or conduct. So, if a state has a lawful basis to make a law governing certain conduct, that law can apply to a foreign minister or any other state official. (A traffic law is an obvious case.)
Customary International Law and Targeted Economic Sanctions
Where do targeted economic sanctions fit into this picture? Two good arguments would suggest that the minister’s immunity ratione personae does not apply. First, the sanctions are not part of a state’s exercise of criminal or civil jurisdiction. The United States has not indicted Zarif (or Al Moallem, or Arreaza), nor has he been sued in the United States. So even though immunity from criminal jurisdiction and civil jurisdiction extends to immunity from court-ordered sanctions, the United States is not exercising either criminal or civil jurisdiction.
Second, it can be argued that the United States is not exercising jurisdiction to adjudicate or enforce at all, so the question of immunity from jurisdiction does not arise. Rather, the sanctions are an exercise of the U.S. jurisdiction to prescribe – to make its law (in this case, the International Emergency Economic Powers Act) apply to a particular individual and alleged fact situation. The sanctions, though prescribed by the Executive Branch, are no more than law on the books.
Two arguments, however, cut the other way. First, as a practical matter, it seems difficult to see the sanctions as a mere exercise of U.S. jurisdiction to prescribe. At some point, Treasury’s Office of Foreign Assets Control (OFAC) could begin to enforce them against those doing business with Zarif. One might still regard that action as something different from enforcement of the sanctions against Zarif himself (the U.S. is not threatening to physically take his property from him), so in that sense his immunity from enforcement is being respected. But this seems like a distinction without a difference, as the natural, foreseeable, and intended effect of such U.S. action will be that the sanctions are being enforced against Zarif.
Second, the underlying purpose of the immunity of foreign ministers points to a real tension between targeted economic sanctions and immunity. The ICJ said it pretty well in the Arrest Warrant case:
In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. . . . He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings. . . . [H]e or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise (para. 53).
The purpose, then, of all immunity is to allow the minister to carry out these functions. It seems counter-intuitive that a foreign minister could be immune from the jurisdiction of a state when it adjudicates, but not when it extends its coercive authority over him through slightly less direct means like sanctions imposed on those with whom he does business, and subject to immediate enforcement by the Executive Branch. Sanctions that constitute an impediment to his work, like foreign travel, are not consistent with that immunity.
Although I find both of these counter-arguments winners as a conceptual matter, we still must return to the apparent overall absence of protests of the sanctions against the foreign ministers of Syria and Venezuela, even before the actions against Zarif. Because the U.S. sanctions were not the first example of actions against foreign ministers, we do have a sense of state attitudes about the question, and thus the content of customary international law. The apparent silence of most states in reaction to the sanctions need not equate with acquiescence as a legal matter (a big conceptual issue for customary international law); but when the European Union and the United States under two administrations actually impose targeted sanctions, it is hard to see a consistent practice and opinio juris that these sanctions are illegal.
So states could well believe that these sorts of targeted sanctions are not inconsistent with a foreign minister’s full immunity from the adjudicative and enforcement jurisdiction of other states. Or perhaps, despite what the ICJ said in the Arrest Warrant case, they think a foreign minister’s immunity can be curtailed if he is accused of grave crimes (although Zarif has not been so accused). Or perhaps they see sanctions as legal if the target is not the legitimate foreign minister, as might be the view of states that recognize Juan Guaido as the president of Venezuela (although this again, this would not apply to Zarif). Or perhaps they just do not have a view on the legality of these sanctions.
The move nonetheless represents a provocation that impedes the peaceful settlement of the U.S. dispute with Iran. In the end, immunity for foreign ministers from all types of coercive acts by other states, whatever the conduct of the state they represent, serves a laudable end. In that sense, the U.S. actions against Zarif and the other foreign ministers – and the EU actions against al-Moallem – may squeeze through under the rule but remain at odds with its purpose. How one approaches such a gap between a law’s letter and purpose is a legal philosophical question that I don’t have room to address here.
One short-term solution would be for those states with sanctions on foreign ministers to enforce them in a way that does not interfere with the minister’s activities. The EU sanctions on Syrian officials exempt various kinds of economic exchanges to benefit the Syrian population as well as those for personal consumption of the designated targets (as stated in the EU FAQ #6.) The U.S. sanctions seem precisely aimed at interfering with Zarif’s work, but the reactions from other states – as well as actors like banks – should the United States begin to enforce them remain to be seen.
The author appreciates useful feedback on a draft from Bill Dodge, Jeff Dunoff, and Anne Peters.