Author Archive for
Kristen Boon

UN Ombudsperson Kimberly Prost to Leave Post in July

by Kristen Boon

Kimberly Prost, the current UN Ombudsperson, will be leaving her post in mid-July when her term expires.   However, no replacement has been appointed, nor has the UN implemented a transition plan for her eventual successor.   The issue of what will happen to the current cases before the office, or to individuals who are unlucky enough to apply for delisting after July 14 is significant.   It highlights the fragility of this important institution at the UN, and suggests that not all member states wish it to function effectively.

Despite the considerable progress the UN has made in developing the institution of the Ombudsperson, which addresses review and delisting requests for individuals on the Al Qaida sanctions regime, it has become apparent that the institution may soon be synonymous with its first occupant: Ms. Prost.   The institution has not been streamlined into the UN system, and despite its important work, her status has been that of a consultant.  While some UN Member States initiated demarches to try to have her term extended, they were unsuccessful. It is unclear what the future will hold for the institution now that she is departing, which is significant rule of law problem.

The issue was extensively discussed at a recent conference on UN Sanctions at Leiden University in the Netherlands.   The program is available under the committee documents tab here.    In addition to the fragility of this institution, its exclusivity was discussed in detail.   The Ombudsperson’s Office has jurisdiction to review and delist individuals on the Al Qaida sanctions lists, but individuals and entities on the 15 other sanctions lists do not have access to this process. Instead, they may request a review from the Focal Point, which has a far less developed procedure and does not have the characteristics of an independent institution.   A number of countries have argued that the Ombudsperson’s jurisdiction should be extended to other regimes, although politically, it is clear that that if that happens, it would be the various sanctions regimes involving situations in Africa that would benefit, but not in the short or medium term, those involving WMD sanctions.  Information on the focal point is available here. A helpful overview of the differences between the Focal Point and Ombudsperson and links to other documents is available here.

New app facilitates evidence collection for atrocity crimes

by Kristen Boon

Eyewitness.org has released a new app that creates a secure “digital locker” for those who seek to record digital evidence of atrocity crimes for eventual use in by courts. The app has been produced by the International Bar Association and the legal services division of Lexis Nexis.   Information is available here.    The app was developed after controversies regarding the veracity of videos in other contexts.

By using metadata, the recordings can verify the location via GPS coordinates, and date / time of the collection, and confirm no editing has taken place.  The app also contains a “destruct” feature if the user wishes to delete it and the material in an emergency.

What will eyewitness do with the footage?   Their webpage reports:

eyeWitness will use the footage to promote accountability for international atrocity crimes, specifically war crimes, crimes against humanity, genocide, and torture. When eyeWitness receives the images, a copy is transferred to a specialised database for analysis by the eyeWitness expert legal team. The team will analyse the videos to determine if they may show that an atrocity crime was committed. The eyeWitness legal team becomes the advocate for the footage, working continuously with legal authorities in relevant international, regional, and national jurisdictions to ensure the image is used to bring to justice those who have committed international atrocity crimes. In some cases, particularly when an atrocity is brought to light that has not received international attention, eyeWitness may provide a copy of the footage to media to raise awareness of the situation and advocate for investigation.

The development of apps such as this one may revolutionize the investigation of international atrocities.  They provide potentially very crucial streams of evidence, and facilitate “citizen policing.”   In the domestic context, there are analogies to a police accountability app released by the ACLU last week.

This app is a significant development in the field of atrocity investigations for the many “citizen journalists” willing to risk injury, arrest and maybe even death to document crimes.  Yet it still raises some important questions.  Traditional investigative authorities, for example, are subject to investigation protocols that are intended to yield highly probative evidence.   Given the unstable situation in Syria, Ukraine, Iraq the DRC (where the IBA hopes the app will be used) and the limited jurisdiction of international courts, traditional authorities have not been able to perform their role of documenting and investigating ongoing atrocities. Nonetheless, the absence of trained professionals and the lack of protocols, means that certain safeguards will not be available.

In addition, if lawyers tried to to gain access to the stored material, there may be battles over rights of confidentiality.   Indeed, given the massive amount of evidence apps like this could produce, this may be no small challenge for Lexis Nexis.

Although eyewitness does not commission any particular investigations, this technology is linked, in  a broader sense, to the work of private organizations like the Commission for Justice and Accountability (CIJA), which has conducted independent investigations in conflict situations, often before staff from international criminal tribunals are on the ground.   This article by Mark Kersten in the Washington Post lays out the pros and cons.   On the one hand, privately funded investigations may speed up the investigation of international crimes, and ensure that crucial evidence is not lost.   The individuals who work for these organizations also have a self-described higher risk tolerance than public bodies. On the other hand, impartiality and chain of evidence are key concerns: prosecutors fear the evidence collected by these organizations may not stand up in courts of law.

The development of this technology, and the parallel trend towards privately funded investigations, suggests that a profound change in the way international crimes are investigated is underway.

 

Appeal Launched in Haiti Cholera Case

by Kristen Boon

Plaintiffs have appealed the January 9, 2015 decision of the Southern District of New York, that the United Nations is immune in the case Delama Georges et al. The appeal brief, filed by the International Institute for Justice in Haiti, is available here: Georges v UN – Principal Appellate Brief 5.28 Final.

The contentions on appeal are as follows:

1.  Whether the District Court erred in ruling that Defendants UN and MINUSTAH are entitled to immunity despite having violated their treaty obligation to provide a mode to settle private law claims

2. Whether the District Court erred in ruling that Defendants Ban and Mulet are entitled to immunity in this case simply because they “hold diplomatic positions”

3.  Whether the District Court erred in failing to address the U.S. Plaintiffs’ argument that granting immunity in this instance violates their constitutional rights to access the federal courts.

These arguments hew closely to the position espoused in the SDNY, while emphasizing the UN’s failure to provide reasons and a remedy for what plaintiffs persuasively contend is a private law claim. The plaintiffs focus on Sections 2 and 29 of the Convention on Privileges and Immunities of the UN (CPIUN). The first sections grants immunity to the United Nations from all forms of legal process, while the latter provision requires the UN to settle private law disputes by alternative means. As argued at the October 2014 hearing, the plaintiffs contend that the United Nations and MINUSTAH have violated article 29 in failing to provide the plaintiffs with an alternative forum, and that this failure constitutes a material breach of the treaty.  One issue that is not fully explored is whether private litigants can benefit from an alleged breach and request suspension, if that treaty was concluded between states.

The Plaintiffs also argue that the District Court erred when relying on the Brzak case, because it does not mention a breach of section 29 of the CPIUN. The Plaintiffs also contend that granting immunity in this case violates the constitutional right of a U.S. citizen plaintiff to have access to the courts. The plaintiff’s brief states that “granting immunity in this case impermissibly infringes on the right [of the plaintiff], which includes the right to bring a well-pleaded civil lawsuit for recognizing causes of action”.

One important development is that six amicus briefs were filed in support of the plaintiffs appeal, with 54 signatures in total.   These briefs represent a range of different interests and flag a diverse set of issues for the court.    Here are links and summaries of the main arguments:

  • ConLawScholarsAmicus focuses on the constitutional right held by the plaintiff to gain access to the courts.
  • EuroLaw Amicus Brief[3] brief focuses on when UN immunity should be limited, and discusses the reasonable alternative means test. It also highlights cases that have drawn a distinction between acts that are essential to the IO and those that are supplementary. Finally, it refers to due process requirements and highlights cases challenging UN sanctions like Kadi.
  • Haitian-AmericanAmicus: This brief was filed by members and family members of the cholera affected population. This brief presents a three-tiered argument for why the district court erred in upholding the UN’s immunity. First, the harm from the cholera epidemic is ongoing and worsening; Second, the UN is not entitled to immunity when it breaches its obligations to provide remedies; Third, the UN should be required to abide by the same Rule-of-law Principles that is espouses as central to its mission in Haiti.
  • HumanRightsGroupsAmicus: This brief focuses on the idea that the UN is bound by substantive international law, and obligated to give a remedy. It argues that the United Nations cannot seek to avoid the substantive obligations of international law which reject the possibility of the broad immunity claimed by the United Nations. Moreover, it suggests that there is a duty to provide a remedy when the UN caused the “arbitrary deprivation of life.”
  • IntlLawScholars Amicus: This brief focuses on the UN Charter and the SOFA between Haiti and the UN, and argues that the relationship between Articles 105 of the Charter and Articles 2 and 29 of the CPIUN is such that given the private nature of the injury, a remedy is required. This brief also cites to Beer and Regan for the idea that lack of effective alternative for private claims is grounds to waive immunity, and notes in Brzak alternative process was available.
  • UNOfficialsAmicus: This is a brief written by six former UN officials and has three main arguments to it: (1) Immunity was never meant to provide a mechanism for the UN to act with impunity, (2) Allowing the claims to go forward will enhance the UN’s legitimacy and its ability to fulfill its mission, (3) Allowing the claims to go forward will not open the flood gates because this is an unprecedented situation.

Moving forward, the defense has 14 days to respond to propose a briefing schedule. As a non-party, it is not clear whether the US will agree to that timeframe however.

 

Thanks to my Research Assistant Dan Hewitt for his help in reviewing the filings.

The ILC takes up Jus Cogens

by Kristen Boon

On May 27, 2015 Mr. Dire Tladi of South Africa was appointed Special Rapporteur for a new topic on the International Law Commission’s agenda:  jus cogens.  The progressive development and codification of jus cogens principles marks a significant step forward.  For many years it was considered, as Ian Brownlie once quipped, “like the car that never left the garage.”  The ILC’s syllabus, available here, suggests a bright new future lies ahead.

The scope of the Commission’s inquiry is likely to focus on the following elements:  the nature of jus cogens; requirements for the identification of a norm as jus cogens; an illustrative list of norms which have achieved the status of jus cogens; consequences or effects of jus cogens.

If you are interested in updates on the ILC’s work such as this one, I encourage you to sign up for Arnold Pronto’s new twitter feed. Arnold is a Senior Legal Officer in the Codification Division in the Office of Legal Affairs, and is the new UN Representative for an ILA group that will be preparing a report on international law activities at the UN twice a year.   Arnold will be tweeting out international law related events as they happen here at the UN. If you’re interested, he is at @arnoldpronto 

Two Interesting New Reports on ILC Website

by Kristen Boon

There are two important new reports up on the International Law Commission’s website.

First, Sean Murphy’s First Report on Crimes Against Humanity is now available.  The UN Doc symbol is A/CN.4/680; link to the report here.

The report is a terrific overview of the current gaps in the international legal architecture, and maps out steps towards a future convention.   The report also proposes two draft articles: one on prevention and punishment of crimes against humanity and the other on the definition of such crimes.   For background, see Leila Sadat’s Crimes Against Humanity Initiative here.

Hat tip to James Stewart for flagging this report.

Second, Sir Michael Wood’s Third Report on the Identification of Customary International Law is available now as well. The UN Doc symbol is A/CN.4/682, and the link is available here.    Readers may recall that last summer I asked whether Security Council acts are relevant to Customary International Law, and noted that the ILC’s treatment of the topic to date had not included a discussion of IOs.   This report remedies this lacuna in part in that it specifically addresses the acts of IOs.  However, its conclusion is that acts of IOs are generally irrelevant to the formation of custom.  Instead, the Report’s guiding assumption is that the practice of IOs is to be attributed to the states themselves, not to the IOs. As the report notes:

if one were not to equate the practice of such international organizations with that of States, this would mean not only that the organization’s practice would not be taken into account, but also that its Member States would themselves be deprived of or reduced in their ability to contribute to State practice.

This conclusion will be controversial:  even the report’s footnotes cite numerous scholars and states that express opposing views.

Both of these reports are likely to spur important scholarly debates.

Sobering State of Play for Upcoming NPT Review Conference

by Kristen Boon

A new report entitled “Nuclear Weapons: the State of Play 2015” makes for very sober reading. The authors are Gareth Evans, Tanya Ogilvie-White and Ramesh Thakur, and the report was written for the upcoming NPT review conference.

Gareth Evans is on a world-tour releasing the report, and yesterday I saw him at the International Peace Institute in New York. You can watch his excellent presentation here.   He noted that five years ago, there was reason for optimism on the disarmament front: President Obama gave his famous Prague speech, the Test Ban Treaty was ratified by the Senate, and new START agreements were put in place.  All signs of progress. By 2012, optimism had started to fade, and now it has all but disappeared (with the important exceptions of progress on negotiations with Iran, and a new effort to focus on the humanitarian consequences of Weapons of Mass Destruction (WMDs). There is a clear reemergence of cold-war thinking about the deterrent utility of WMDs.  Moreover, there are increasing risks due to new technologies and the potential of sabotage.

The report also illustrates that States are not very serious about disarmament.  They have not committed to a timetable on reducing stockpiles, and at present, every nuclear power state – the 5 States party to the NPT, and the 4 outside – foresee indefinite retention of their WMD.  While the report notes some progress on verification, there has been little to none with regards to transparency and irreversible dismantlement of weapons.  The global total of warheads is now approximately16,400. Moreover, we are seeing Asian states increasing their stockpiles, although Evans noted they are proceeding from a small base.  The report is very well organized with a color-coded progress rating on multiple issue areas, and well worth reading.

Despite – or rather because of – the seriousness of the current situation, Evans, and discussant Angela Kane, UN High Representative for Disarmament Affairs, emphasized that it is an extremely important time to maintain energy and bottom-up pressure.  Let’s hope this guide becomes a useful tool for negotiators at the meetings starting next week.

Elders Proposal for Strengthening UN

by Kristen Boon

If you haven’t seen it yet, the Elders Proposal for Strengthening the UN is a must read.  Chaired by Kofi Annan, The Elders is an independent group of global leaders who work together for peace and human rights.

Released earlier this month at a conference in Munich, the four proposals are generating a lot of attention include:

1)  A new category of Security Council membership is needed: non-permanent members but who are immediately eligible for re-election, thus making them de facto permanent members if they secure the confidence of fellow member states.

2)  A pledge for non-use of the veto:  P5 states must also be more responsible in using their veto, especially during a crisis where people are threatened with genocide or other atrocities.

3)  Consultation with civil society:  the Security Council should take care to regularly consult those people who are affected by its decisions, especially in conflict zones.

4)  A new, more transparent and accountable system for choosing the next Secretary-General.

The last proposal, a new process for choosing the Secretary General, is where the Elders really break new ground.  They propose:

At the United Nations, it is the Secretary-General who has to uphold the interests and aspirations of all the world’s peoples. This role requires leadership of the highest calibre. Yet for 70 years the holder of this post has effectively been chosen by the five permanent members of the Security Council, who negotiate among themselves in almost total secrecy. The rest of the world is told little about the process by which candidates are identified, let alone the criteria by which they are judged. This barely follows the letter, and certainly not the spirit, of the UN Charter, which says the Secretary-General should be appointed by the General Assembly, and only on the recommendation of the Security Council.

To remedy this, we call on the General Assembly to insist that the Security Council recommend more than one candidate for appointment as the Secretary-General of the United Nations, after a timely, equitable and transparent search for the best qualified candidates, irrespective of gender or regional origin.

We suggest that the next Secretary-General be appointed for a single, non-renewable term of seven years, in order to strengthen his or her independence and avoid the perception that he or she is guided by electoral concerns. She or he must not be under pressure, either before or after being appointed, to give posts in the Secretariat to people of any particular nationality in return for political support, since this is clearly contrary to the spirit of the Charter. This new process should be adopted without delay, so that the United Nations can make full use of it to choose the best person to assume the post in January 2017.

By tradition, the post rotates amongst different geographical areas of the world, and the next Secretary General would, under this system, come from Eastern Europe.  Because of tensions at the UN between Russia and Western States, however, many predict it will be impossible to find a candidate acceptable to all.   The proposal for implementing a merit based search with multiple candidates, and for a non renewable 7 year term therefore comes at an excellent time.  Member states should take up the call and consider updating the SG selection procedure. What will be required to implement it is a new GA resolution.   Ban Ki Moon’s term will be up at the end of 2016:  the time to act is now.

A helpful overview of the UN Charter requirements for the post (Article 97), relevant GA resolutions on the selection process, and recent proposals for reform of the office of the SG can be found here.

Important New Terrorist Financing Resolution Passed by Security Council

by Kristen Boon

On February 12, the UN Security Council unanimously passed an important new Chapter VII resolution – Resolution 2199 – to respond to terrorist groups in Iraq and Syria.

This resolution is significant for four reasons.   First, the resolution specifically targets the supply of oil. In other words, it attempts to degrade the supply chain and the support networks.  The preamble refers to oilfields and their related infrastructure, as well as other infrastructure such as dams and power plants.  The operative paragraph states the Council:

“Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further listings by the Committee;and attempts to target companies and activities that contribute to terrorist activities.”

This effort by the Council condemns direct and indirect trade in oil and oil products, and emphasizes that all states must freeze assets of the targeted groups, as well as their agents, intermediaries and middlemen, including oil producers.  In another paragraph, the Council also expresses concern that vehicles coming from certain areas could be carrying oil, minerals, livestock and other materials to barter.

Second, the resolution prohibits trade in cultural artifacts. Terrorist groups in these countries are known to be profiting from the looting of antiquities, and this resolution seeks to prevent the trade in items of cultural, scientific and religious importance.   It notes that terrorist groups are generating income from illegally removing artifacts from both countries during periods of conflict.  The resolution reaffirms an existing ban on antiquities from Iraq, and imposes a new ban on antiquities from Syria.  It also sets the basis for cooperation with INTERPOL and UNESCO.

Third, the resolution bans the payment of ransom, regardless of how or by whom the ransom is paid. It further “Reiterates its call upon all Member States to prevent terrorists from benefiting directly or indirectly from ransom payments or from political concessions and to secure the safe release of hostages, and reaffirms the need for all Member States to cooperate closely during incidents of kidnapping and hostage-taking committed by terrorist groups.”  In so doing, it attempts to cut off funds derived from ransom, and reaffirms that UN sanctions prohibit ransom payments to UN listed groups.

Fourth, the resolution was drafted by Russia.  While Russia’s opposition to intervention in Syria and  is well known, this is an example of positive engagement with the situation in Syria.  Although the resolution does not authorize intervention, it makes creative use of the Security Council’s sanctions power and is indicative of creative new approaches to targeting.

The Council’s efforts to prevent direct and indirect trade in oil products are illustrative of the Council’s regulatory activities in the economic sphere. An article I published in the Vanderbilt Journal of Transnational Law in 2008 provides some background on the topic of the Security Council as norm setter in the international economic sphere.

New ILA Study Group on Sanctions

by Kristen Boon

I am pleased to announce that a new ILA Study Group on sanctions has been formed.  Larissa van den Herik and I will be working together, with the support of a group of sanctions scholars and practitioners, to address questions of individualization, formalization and interplay in multilateral sanctions.  Here are the three aims of the group:

  • To evaluate the individualization and formalization of UN sanctions.

What are the pros, cons and interconnections of developments towards individualized and rules-based conceptions of UN sanctions? How targeted must targeting be and what are the risks of over-targeting and over-compliance?

  • To examine how and in which circumstances UN sanctions regimes can be further (or less) individualized and formalized both in terms of their function as well as regarding procedural aspects.

In which areas of international law can UN sanctions play a role? Do different types of UN sanctions regimes correspond to different protected values and pursued interests? How are procedures and accountability models best organized?

  • To reflect on coordination with other institutions.

What are the best forms of interplay and interaction with other institutions such as the International Criminal Court, ICTY, ICTR and national courts pursuing criminal accountability, and with other regional or sub-regional organizations that apply sanctions, such as the EU and AU?

 

The group aims to present its first report at the ILA meeting in Durban, 2016.

For those who follow sanctions, some other interesting events are coming up including a conference in London, details here.

SDNY Finds UN Immune in Haiti Cholera Case

by Kristen Boon

In an 8 page decision handed down on January 9, Judge Paul Oetken found that the UN is immune in Delama Georges et. al v. UN, the so-called “Haiti Cholera case.” The decision is available at: http://www.ijdh.org/2015/01/projects/united-states-district-court-southern-district-of-new-york/ The finding that the UN is immune rests on two points: first, that the UN did not expressly waive its immunity under the Convention on Privileges and Immunities, and second, that any alleged inadequacy with the UN’s failure to offer a mode of settlement did not trump the requirement for express waiver. Relying on Brzak v. UN, Judge Oetken wrote:

“The Second Circuit’s decision in Brzak v. United Nations requires that Plaintiffs’ suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that “[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’” 597 F.3d at 112 (quoting CPIUN art. II, § 2). Here, no party contends that the UN has expressly waived its immunity. (Statement of Interest at 6 (“In this case, there has been no express waiver. To the contrary, the UN has repeatedly asserted its immunity.”).); (Dkt. No. 43, at 1 (“Waiver is not at issue here.”).) Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs’ suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit.   … …. “nothing in the text of the CPIUN suggests that the absolute immunity of section 2 is conditioned on the UN’s providing the alternative modes of settlement contemplated by section 29. See Tachiona v. United States, 386 F.3d 205, 216 (2d Cir. 2004) (“When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.” (internal quotation marks omitted) (interpreting the CPIUN)). As the Second Circuit held in Brzak, the language of section 2 of the CPIUN is clear, absolute, and does not refer to section 29: the UN is immune from suit unless it expressly waives its immunity.”

Although a decision upholding the UN’s immunity has always been predicted, the spirited hearing on the UN’s privileges and immunities in October provided an opportunity to explore other ways to frame the issue.   In particular, Judge Oetken’s analysis of the language of the treaty (the UN shall provide an appropriate mode of settlement) suggested that effective dispute resolution in private law matters was not a matter of discretion.

The ruling here is consistent with other recent mass torts challenges against the UN, for example, the Mothers of Srebrenica case in the Netherlands where the UN’s absolute immunity was upheld following the massacre of 1996. Nonetheless, two important distinctions with the Srebrenica case are apparent. First, an alternative was available: proceedings against the Dutch state have been successful in at least one case so far.  Second, the Srebrenica cases clearly involved questions of operational necessity which are typically considered public or policy matters.  Under the CPIUN, the UN is not under an obligation to provide appropriate modes of settlement if the matter is not of a private law nature.

The plaintiffs have indicated that they will appeal the ruling.   Meanwhile, two related actions are pending in US district courts.

Happy Birthday OJ!

by Kristen Boon

Although I’ve only been a regular OJ blogger for two years now, I feel like I’ve known OJ since it was born.

Chris Borgen, Julian Ku and I have been friends since we all worked together at Debevoise and Plimpton in New York years ago.  Over the years I’ve gotten to know Peggy, Roger, Ken, Deborah, Duncan, and at least by email, all the others! I was extremely honored when Chris invited me to join the crew in 2012. Chris, I owe you a big thanks for this incredible opportunity.  One of my most professionally rewarding occupations is to be part of this conversation, as Deborah puts it, about international law today.

I have used blogging in a variety of ways over the last 2 years. I’ve used it as a vehicle to test ideas see here and here on topics related to the Security Council. I’ve used it to report on recent developments, for example, my many posts on the Haiti Cholera case against the UN. I’ve also used it as a venue for opinion pieces on subjects of current concern, whether on academic topics close to my heart like Jus Post Bellum or newsworthy international law developments, including a post here on the relationship between sanctions and the 2013 deal with Iran, a post here on Bashir’s interest in coming to the 2013 General Assembly, and the East China Sea dispute available here.   Each type of blogging brings its own rewards, and puts one in contact with different networks of academics, practitioners, journalists, and observers, from around the world.

Blogging has also prompted me to follow subjects I’m interested in – like the UN – in greater detail, and to watch and report on the ebbs and flows of debates and developments with a better trained eye.  Over the past two years in particular, I’ve participated in a number of UN projects, including the recently concluded High Level Review on Sanctions.   During this period, there has been a well-known hardening of relations between the Western Powers and Russia, which has affected the Council’s ability to act decisively on many recent issues.  In addition, China’s rising influence on matters of international law remains an important development institutionally, and with regards to state practice generally.  In parallel to this period of power shifts, stresses from the outside seem to have multiplied: chronic underfunding, the advent of mass torts cases against the UN, the communications revolution, the creation of more flexible, new bodies.  Many of these themes are recalled in Frederic Megret’s terrific essay on the Cholera Case available here.

And yet, as Francesco Mancini perceptively writes, rumors of the UN’s death have been greatly exaggerated.    The UN recently turned 69, and it currently has 16 current peacekeeping operations, including robust peacekeeping missions in which peacekeepers are given an offensive mandate.  Although it shows it age in some ways – take for example the almost defunct Trusteeship Council – if is catching up on many other fronts – I think here of efforts to improve due process in sanctions listings –  and ahead of the curve on many others, including measures to combat terrorism.   Major reviews on peacekeeping and political missions, as well as the UN’s peacebuilding architecture, are planned for 2015.  These reviews will present an opportunity for stocktaking and goal setting in two of the UN’s most important fields, for the next decade.

As I look ahead to the next period of blogging, I hope these developments will be something we can discuss and debate together on OJ.  Thanks to all for the opportunity to be part of this enterprise.

16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.