The UN Security Council Set to Renew Ombudsperson’s Mandate for Al Qaida Sanctions Regime

A big item on the Security Council’s agenda this month is reconsideration of the mandate of the Ombudsperson and Monitoring Regime for Al Qaida Sanctions, pursuant to Security Council resolutions 1267 and 1989.  Of particular interest are measures proposed by Like Minded States this year (including, amongst others, Switzerland, Belgium, Austria, Norway, Costa Rica, and Germany) which suggest a variety of new measures (and see UN Doc S/2012/805 here for the most recent proposals) to strengthen the Ombudsperson’s office, including codification of its practices, allowing the Ombudsperson to request humanitarian exceptions from the list, disclosing the referring state, disclosing reasons for listing and delisting, and potentially even extending the mandate of the Ombudsperson to other relevant sanctions regimes.  The last suggestion in particular would be a fascinating development – an Ombudsperson with jurisdiction over other sanctions committees with listing powers would be the first step towards a generalized review process.

The Security Council’s consolidated sanctions list has generated much attention due to the vast array of legal challenges the list has sparked over the past decade.    Approximately 30 such cases  have now been brought against the UN, EU and member states.  Specifically, these cases allege various human rights problems in the listing process resulting in violations of the right to property, freedom of movement, privacy and the right to an effective remedy. Most famously, Yassin Abdullah Kadi challenged the implementation of the resolution by the Council of the European Union and the Commission of the European Communities. For an overview of this complicated litigation, including October 2012 oral hearings on the second appeal, see this post at the European Law Blog.  Of particular note in this regard is that Kadi was recently delisted by the Sanctions Committee in October 5, 2012, as noted on the Ombudspersons’ website.   Another recent decision of interest is the European Court of Human Rights’ September 2012 judgement in Nada v. Switzerland.  The Court found that Switzerland violated Nada’s right to family and a private life in its implementation Resolution 1267, and noted that implementation of the Resolution does not bar domestic judicial review.

Life is hard for someone on a UN “blacklist”.  Once an individual is placed on the consolidated lists, States are required to impose a travel ban, asset freeze, and arms embargo, resulting in a situation where the named individuals will not be able to sell property, pay their bills, travel, deposit their paychecks or access funds.  And of course there is the general censure of the community.   Ultimately, sanctioning amounts to the imposition of a penalty.  Yet because the sanctions are not part of a criminal procedure the due process normally afforded to those accused of a crime does not apply.  Although there is evidence the sanctions are effective in combatting Al Qaida, the Security Council’s regime is perhaps better known for the cases in which it was ineffective: where the wrong individual was listed (cases of mistaken identity), when the information was found to be incorrect, or where the individuals were deceased.  The Watson Institute at Brown has just published a new report on Due Process and Sanctions here.  In addition, the Graduate Institute in Geneva issued an assessment of the effectiveness of targeted sanctions generally here.

In an attempt to improve the process, the Security Council created an Ombudsperson’s office in 2009 under Resolution 1904 to assist with delisting requests.  The post is currently held by Kimberly Prost.  The regime was strengthened two years later under Resolution 1989, when a new rule was adopted: if the Ombudsperson recommends against retaining a listing, then that listing will be removed unless the Committee decides by consensus to retain it.  To date, there have been approximately 34 requests for delisting.  Twenty of these came after the regime was strengthened under Resolution 1989.  Of those 10 have been delisted, and 1 was refused.  The most recent report of the Ombudsperson is available here.  Of particular note are the details on how the Ombudsperson has tried to improve fair process.

There is no doubt that the process has improved, but such improvements have not satisfied many critics.  Ben Emmerson, UN Special Rapporteur on Counter Terrorism and Human Rights, released a report in September 2012 that highlighted deficiencies of the Ombudsperson’s office from a human right perspective.  Specifically, he noted that the Ombudsperson’s office is not strong enough because it cannot make its own decisions on delisting, nor can it force member states to provide information.  He also noted that the Ombudsperson is not required to exclude evidence obtained by torture.  He argues that the process does not meet international due process standards.

The new generation of “smart” sanctions have played an important role in restraining the activities of terrorist organizations, but they have also had a significant impact on individual rights and freedoms.  The ongoing debate over the power of the Ombudsperson and the mandate of the 1267 Monitoring Team underscores the dialogue between national and regional courts who have highlighted the many due process concerns in the Committee’s approach on the one hand, and the member states that are incrementally moving towards an administrative / judicial process applicable to the Security Council and its power to sanction.  The Security Council is likely to adopt the extension early next week …. stay tuned for an update!