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Kristen Boon

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.

Rob Howse Guest Blogging This Week

by Kristen Boon

It’s my pleasure to announce that Rob Howse will be guest blogging on Opinio Juris this week.  Rob is the Lloyd C. Nelson Professor of International Law at NYU, and a specialist in international trade and investment law.  He is also the author of a new book in political philosophy entitled Leo Strauss Man of Peace published by Cambridge.   A great interview with Rob on the book can be found here.

As his CV attests, Rob is both a prolific scholar and an active practitioner who has been involved in  a wide range of cutting edge legal disputes.  It is our pleasure to welcome Rob to Opinio Juris this week.

New ICJ Judges Elected

by Kristen Boon

Congratulations to two new members of the bench of the International Court of Justice: James Crawford and Kirill Gevorgian.  Also, congratulations to Joan Donoghue and Mohammed Bennouna on their reelection.  The esteemed judges will commence 9 year terms starting in February 2016.

The voting process and requirements for election under the ICJ statute are described here.

Voting also took place for a fifth position on the bench, however one candidate received a majority in the Security Council and the other candidate received a majority in the General Assembly.   As a result, another round of voting is required to finalize the selection for the final position.  This is expected to take place later this month.

Update:  I’ve just seen that Dapo has a great post on the voting over at EJIL talk.   Highly recommended for a more detailed analysis.

Haiti Cholera Transcript

by Kristen Boon

For those following the developments in the Haiti Cholera Case, the transcript of the October 23, 2014 Oral Argument is now available.   It can be accessed here:  Oral Argument_Cholera Case 10.23. For my takeaway on this important hearing, please see my recent blog here.

Perhaps not surprisingly, the hearing garnered significant coverage in the main stream press.  At least one article suggested that Judge Oetken “wavered” on UN immunity.  In my opinion, this isn’t a correct depiction of his interventions.  He gave the plaintiffs a day in court, while giving no indication as to how he will rule.  Judge Oetken was clear that the plaintiffs have a steep hill to climb.  Nonetheless, he managed a politically sensitive case adeptly, by carefully examining the scope of the UN’s immunity under the Convention and Privileges and Immunities of the UN, and its obligation to provide appropriate modes of settlement under Article 29 of the same convention.   A decision is not expected before the new year.

Expanding the UN Ombudsperson’s Mandate & Better Cooperation Between the ICC and Sanctions Regimes

by Kristen Boon

The UN Ombudsperson’s office currently has jurisdiction over the 1267 sanctions regime, but the discrepancy between the due process afforded to individuals affected by that regime as opposed to other regimes has long been noted: individuals listed under the various sanctions regimes applicable to situations in Africa, and the Weapons of Mass Destruction regimes applicable the situations in Iran and North Korea, only have access to a UN focal point to request delisting. The UN focal point, however, has fewer powers and does not operate under the same due process guidelines as the Ombudsperson.

This issue was debated last week in the Security Council during an open meeting on Security Council methods. According to the UN Press who reported on the day long meeting, Kimberly Prost, the UN Ombudsperson, noted that in her experience a fair process was essential to the implementation of sanctions, and it connected with a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.  For analysis of the reasons the UN Ombudsperson herself and certain Member States support extending the Ombudsperson’s mandate, see Maya Lester’s blog here. General background on the Working Methods debate is available here.

At the same session, states also discussed overlap between sanctions regimes and the ICC, and ways to improve cooperation. For background on the main issues, see my blog here.

There is little question that an expansion of the Ombudsperson’s mandate at least to more sanctions regimes, and better cooperation between criminal tribunals and the UN Sanctions regimes will improve the effectiveness of UN sanctions. Moreover, they complement the UN High Level Review of Sanctions which is coming to an end, in which a parallel effort to assess and improve sanctions regimes has taken place.

 

Privileges and Immunities Hearing in The Haiti Cholera Case against the UN

by Kristen Boon

An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York.   For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal.   Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development.  Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN.   Three amici spoke on behalf of plaintiffs.

In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN).   This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.

In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case.  According to the US government, Article 29 cannot be read as a condition precedent to Article 2.

Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities.   He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents.  He both orally acknowledged that he is bound by 2nd circuit precedent, and cases like Brzak, in which the UN’s immunity was found to be absolute, and expressed interest in whether courts elsewhere have faced a similar question or come to a different conclusion with regards to the scope of the UN’s immunities. He was interested in Plaintiffs argument that there is a fundamental bargain between member states behind the CPIUN, which, if breached by the UN’s decision not to provide an appropriate mode of settlement, might be a basis to lift the immunity protections under the CPIUN.  Using terminology from contract law, he asked the US government if the UN were not in material breach of the treaty in this instance, for failure to provide a mechanism to resolve the claim. He also engaged in a close reading of the text of the CPIUN – noting that Article 29 says that the UN shall provide appropriate modes of settlement, not may or might. Moreover, he challenged both parties about venue, asking whether, pursuant to Article 30 of the CPIUN, the ICJ wasn’t the better forum to resolve questions of interpretation, such as the relation between Articles 2 and 29, and why Haiti or the US couldn’t refer such a question to the ICJ.

From my perspective two issues that were not addressed by the parties in oral argument that seem important to the resolution of the case involve the distinction between public and private law disputes, and the status of private parties within the CPIUN.  To recall, the plaintiffs take the position that the claims in this matter are private (sounding in tort, involving a request for compensation for death or injury), whereas the UN’s response to their initial complaint stated that the claim was not receivable because it would involve a review of political and policy matters.  The UN did not provide reasons for this characterization. Given the centrality of the distinction between public and private law definitions under Article 29 with respect to the obligation to provide appropriate modes of settlement, clarity about the definition of public versus private law will be important to this and future such cases against International Organizations like the UN.  Second, the status of the claimants, here private individuals who were never part of the ‘grand bargain’ underlying the CPIUN between UN member states was not explored, yet this seems significant to the question of material breach.

Judge Oetken has reserved judgement, and a decision in this case is not expected before the new year. Two other class actions have been filed in US courts and are currently pending.

For background on this case, please see my prior blogs on Opinio Juris and an October 17 program on CBC Radio entitled “The Current” in which journalists, lawyers, and an independent academic (myself) were interviewed. http://podcast.cbc.ca/mp3/podcasts/current_20141017_93209.mp3

Legal Issues at the GA This Fall

by Kristen Boon

For those interested in the 6th committee program at the General Assembly currently underway,  the schedule is available here.   Interesting topics are being discussed, including the Rule of Law, International Terrorism, Universal Jurisdiction, finalizing a draft UNCITRAL treaty on transparency in treaty based Investor-State disputes, and an update on the Responsibility of International Organizations.  The ILC’s report will be discussed between October 27 – November 5.  Documents for the sessions are available on the PaperSmart portal, and all the plenaries can be viewed by live webcast here.

In addition, on Thursday, Oct. 16, elections will take place for five non-permament Security Council seats.   Background on the seats available and the countries vying for them is available here.

 

To Debate or Not to Debate in a Time of War

by Kristen Boon

John Stewart’s Sept. 29 clip “Cameron – What are you Doing?” is a must see on comparative constitutional law.   Stewart contrasts the fulsome and spirited debate in the UK on whether to authorize airstrikes against ISIL, with the absence of congressional action in the US.   Well worth watching. And quite funny.   Here is the show.

 

 

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Rebels Holding Peacekeepers Demand UN lift Sanctions

by Kristen Boon

Last week, 45 Fijian peacekeepers deployed as part of a 1,200-member U.N. force monitoring a buffer zone between Syria and Israel were captured and are being held by Nusra Front rebels.   (Hat tip to Theodore Christakis here at the ESIL conference in Vienna for raising the issue yesterday in the ESIL / SHARES Peace and Security Interest Group Seminar.)

Rebels have made three demands for their release, according to a WSJ article published yesterday:

1. They want to be dropped from the list of al Qaeda-linked groups under U.N. sanctions;

2. They are demanding monetary compensation for the deaths of the insurgents who were killed in recent fighting along the Syrian-Israeli border; and

3. They want humanitarian aid for a rebel-controlled area near the Syrian capital Damascus that is surrounded by government troops.

The Security Council responded with a press release yesterday, read by Amb. Samantha Power, in which it “condemned in the strongest terms the detention of 45 Fijian peacekeepers by a Security Council-designated terrorist organization.  They reiterated their call for the peacekeepers’ immediate and unconditional release.  There can never be any justification for attacks on or the detention of UN peacekeepers.”

The demand for delisting is particularly striking. On the one hand, it suggests that targeted sanctions are relevant to this group, whether for practical or symbolic reasons.  On the other hand, there continues to be debate about the Security Council’s legal basis for placing demands on or regulating non-state actors.

In the Kosovo Advisory Opinion, the ICJ indicated the Security Council could create obligations for non-state actors, but the conferral of rights, obligations, and status on subjects of law without their participation in the international law making process continues to be controversial as the ILA’s 2014 report on Non-State Actors explores.  Both the Council’s imposition of sanctions and its demand for the peacekeepers’ immediate and unconditional release in the press statement, (and here it is relevant that press statements are considered decisions of the Council) raise interesting and important issues in international law.

Robust Peacekeeping Missions

by Kristen Boon

Peacekeeping missions such as the UN’s intervention brigade in the DRC (established within MONUSCO by Security Council resolution 2098) have important legal implications. In particular, if the Brigade is considered a party to the conflict in the Congo, do peacekeepers become combattants?   Can they be captured and detained? For an overview of the main issues see the ASIL analysis by Bruce Oswald here & the new ICRC review.

New peacekeeping missions also raise questions of attribution.   Is the standard of attribution set out in Art. 7 of the Draft Articles on Responsibility of IOs sufficient? How should brigades be considered in relation to the peacekeeping mission as a whole? If wrongdoing occurs, how should responsibility be divided between multiple troop contributing countries and regional forces including NATO and the AU, who may contest any assertion they have international legal personality?

For those interested in this topic, an excellent panel discussion was held at the Irish Mission to the UN this summer.  The panelists, including UN Ambassadors and a retired Force Commander, discuss the “C2” (command and control) structures of peacekeeping missions and their views of future challenges.   The discussion can be viewed here.

In addition, at the upcoming ESIL meeting in Vienna in September, the Amsterdam SHARES project, in conjunction with the ESIL peace and security interest group, has organized a special symposium to tackle some of these issues.  I will be speaking there, and am looking forward to the discussion.

Jurisdictional Overlap: Security Council Sanctions and the ICC

by Kristen Boon

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

 

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)