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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D

Part II Multidisciplinary Perspectives On The Rule Of Law In Action, 16 Fair Process and the Security Council

Kimberly Prost

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 06 April 2020

Subject(s):
Peace keeping

(p. 409) 16  Fair Process and the Security Council

A Case for the Office of the Ombudsperson

1.  The Security Council Al Qaida/ Taliban Sanctions Regime

1.1.  Maintaining Peace and Security: The Innovative Path to the 1267 Regime

Article 1 United Nations (UN) Charter lists the first purpose of the organization as being ‘to maintain international peace and security’. Primary responsibility for this work has been conferred by the community of nations upon the Security Council. Under Article 39 UN Charter, the Council is vested—as an executive body—with the power to determine the existence of threats to international peace and security, to make recommendations about, and to decide on what measures shall be taken to maintain or restore international peace and security.

A range of measures have been adopted under Chapter VII, which have, for example, related to the placement of peacekeeping forces, arms embargos, and economic and political sanctions aimed at acts of states which disturb international peace and security. Sanctions have been imposed under Articles 41 and 42 UN Charter on states in this context to prevent the importation of goods in situations of conflict,1 or to prevent trade in response to what the Security Council considers to be aggression or other kinds of threats to international peace and security by a state.2

Since the 1990s, the Security Council has been increasingly creative in the application of its Chapter VII powers, on occasion touching more immediately upon the (p. 410) rights and freedoms of individuals. This is seen perhaps most noticeably in the establishment of international criminal tribunals: of the International Criminal Tribunal for the Former Yugoslavia (ICTY)3 in May 1993, in the wake of the devastating conflict; and of the International Criminal Tribunal for Rwanda (ICTR)4 in November 1994, following the genocide there. The ICTY was the first post-World War II tribunal with jurisdiction to adjudicate on individual responsibility for serious violations of international humanitarian law. The establishment of these international tribunals by way of Security Council resolution, requiring all states to cooperate with them, represented a novel use of the Council’s Chapter VII powers and one which had a very direct impact on individuals, not least in terms of criminal responsibility and the protection of fundamental human rights.

Security Council Resolution 1267, and other related resolutions5 that followed to create the Al Qaida/Taliban sanctions regime (hereafter ‘the 1267 regime’), were also a product of an innovative use of the sanctions power. In particular, in response to concerns about the harmful effects of sanctions on an innocent general population, the 1267 regime represented an attempt by the Council to employ ‘smart sanctions’: sanctions targeted at particular, culpable, groups or individuals. Targeted sanctions were not without precedent: in 1997 the Security Council imposed sanctions against the military junta in Haiti;6 and in 1998 against the UNITA rebel movement (p. 411) in Angola, targeting the groups’ senior officials and the adult members of their immediate families with travel bans.7

On 15 October 1999, under Resolution 1267, the Security Council imposed a set of sanctions aimed not at an entire state, but rather—similar to those previously concerning Haiti and Angola—against the Taliban as a faction holding territory within the state of Afghanistan. The primary aims were to compel the Taliban to take measures to ensure its territory was not used as a sanctuary for terrorist groups, thereby allowing them to train and prepare for attacks; and to assist with bringing individuals indicted on terrorism charges to justice. Most significantly, the Resolution reiterated calls for the Taliban to turn over Osama bin Laden to the United States (US) where he had been indicted in relation to the 1998 US embassy bombings in Tanzania and Kenya.8 Furthermore, under the same instrument, the Security Council established a sanctions Committee (‘the 1267 Committee’) which was, inter alia, responsible for designating that particular funds and finances be subjected to its measures; in other words, its core task was to identify the relevant Taliban figures and entities linked to that organization. On 19 December 2000, through the related Security Council Resolution 1333, the sanctions were extended to Osama bin Laden, and individuals and entities associated with him, including members of the al Qaeda network.

Already the innovative and unique features of the 1267 regime were evident: it targeted specific individuals and entities anywhere in the world, and with the extension in Security Council Resolution 1333, some of those targets were independent of a political body such as the Taliban. The fall of the Taliban in December 2001 meant none of those designated by the 1267 Committee had a connection to a state or government-like body. This was a significant development because, although the 1267 sanctions were properly addressed to states in terms of implementation, the sanctions were directly applied by the Council to individuals and entities without any dependency on state association. This innovative action inevitably brought with it new challenges in terms of international rule of law.

In addition, what began as a small list (approximately 140, primarily associated with the Taliban) of individuals and entities was significantly expanded with the addition of around 200 names in the immediate aftermath of the al Qaeda attacks in the US on 11 September 2001. New listings have been consistently added since and as of March 2011 the Consolidated List contains 485 entries—137 individuals associated with the Taliban, and 256 individuals and 92 entities with al Qaeda.9

(p. 412) 1.2.  The Regime in Practice

Almost from inception the sanctions imposed under the 1267 regime have included a travel ban, an asset freeze, and a weapons prohibition.10 By virtue of Article 25 UN Charter, the regime is binding on all Member States and it falls to them to enforce the sanctions through domestic law and regulations that incorporate the designations domestically, as well as practical implementation which involves the identification and freezing of funds or other assets.11

In terms of the designation process itself, names of individuals or entities said to meet the criteria are proposed by states and the Committee established by Security Council Resolution 1267 (hereafter the ‘1267 Committee’) makes a determination as to whether the individual or entity will be added to the Consolidated List. The decisions of the 1267 Committee are taken on the basis of consensus.12 A similar procedure is followed in the case of requests for delisting.

In July 2005, the Security Council provided guidance as to what would constitute ‘association’ for the purposes of inclusion within the list and resultant imposition of sanctions.13 The Security Council set out the types of acts or activities which would indicate such association as including: participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of; supplying, selling, or transferring arms or related material to; recruiting for; or otherwise supporting acts or activities of; this individual or these groups.

The 1267 Committee is supported in its work by a group of independent experts appointed by the UN Secretary-General—the Analytical Support and Sanctions Monitoring Team (hereinafter the ‘Monitoring Team’).14 This consists of experts (p. 413) with expertise in al Qaeda and the Taliban, counter-terrorism legislation, terrorist financing, border security, arms embargoes, drug trafficking, and human rights. They assist with evaluating the implementation of the 1267 regime by states, as well as reporting on developments that have an impact on the regime’s effectiveness, such as the nature of the threat from al Qaeda and the Taliban. The Monitoring Team is involved in the construction of narrative summaries which appear on the 1267 Committee’s website, setting out the basis for a listing. By virtue of Security Council Resolution 1822,15 narrative summaries are now required to be published online for all new listings, and many have also been prepared for listings predating that resolution. The Monitoring Team also works with states to gather relevant and necessary information on listings, such as, for example, reviewing listings of individuals thought to be deceased. The Team was established in January 2004 by Security Council Resolution 1526,16 and its mandate was most recently extended once again for 18 months in December 2009 by Security Council Resolution 1904.17

2.  The Fair Process Challenge

2.1.  The Emerging Issue

From the beginning, the 1267 regime—laudable in terms of intention—was plagued by procedural issues and broader fairness concerns. At the core of the criticism lay the lack of key due process components for a system which results ultimately in the restriction of individual rights and freedoms. Notably, the regime did not provide for notification of individuals or entities when listed, nor were those designated informed of the case supporting their designation, and there was no mechanism for individual recourse.

Consistent with normal Security Council practice, the procedures of the 1267 Committee were of a confidential nature, carried out in closed sessions, and without the provision of information or reasoning as to the basis for the decisions taken. Furthermore, there was no independent mechanism through which a named individual or entity could seek recourse or pursue delisting. The only avenue of redress was to pursue the matter through a state of nationality or residence.

The lacunae became the subject of intense academic and civil society critique,18 and the process began to draw political criticism from states which faced the prospect of (p. 414) endeavouring to implement these sanctions domestically. Inevitably, those individuals and entities facing the restrictions flowing from the sanctions began to turn to domestic and regional courts for redress. Some examples of the types of litigation are as follows.

Mr Nada, an Italian national living in a small Italian enclave in Switzerland, was listed domestically by Swiss authorities in November 2001. His challenge in the Swiss courts failed as it was held that the authorities were simply implementing Resolution 1267 as a mandatory Chapter VII resolution of the Security Council.19 In 2008, he brought a case in the European Court of Human Rights (ECtHR), arguing that his rights to liberty and security, respect for private and family life, and an effective remedy, were breached by the Swiss implementation of the 1267 listing restricting his travel and cutting access to his funds.20 Mr Nada was removed from the Consolidated List and the Swiss domestic list in 2009. At the time of writing, his case is pending before the ECtHR.

The Kadi and Al Barakaat International Foundation21 litigation in the European Court of Justice (ECJ) has generated the strongest challenge to the 1267 regime. In September 2008, the ECJ held that the European Union (EU) regulation freezing Mr Kadi’s assets22—where he had no ability to know the information making the (p. 415) case for his listing—breached his fundamental rights, including his right to be heard, the right to effective review, and his property rights.23 The Court annulled the regulation as it related to Mr Kadi and Al Barakaat but, recognizing that the decision could have irreversibly undermined freezes that were in fact justified, it stayed enforcement of the decision for 90 days, allowing the European Community time to cure the listings’ defects. Pursuant to the Court’s decision, Mr Kadi was given the information the Community held in support of his listing (which was the narrative summary prepared by the 1267 Committee), and a chance to respond. Mr Kadi made submissions in writing. The Community determined that he should remain on the list.24 Consequently, in February 2009, Mr Kadi challenged this process and his continued listing. In September 2010, the General Court upheld his claim, finding that the new process was not sufficient to protect Mr Kadi’s fundamental rights.25 That decision is now under appeal and pending before the Grand Chamber of the ECJ.

Finally, by way of example, Mr Abdelrazik, a Canadian national and refugee from Sudan, was added to the UN Consolidated List in July 2006. The Canadian Federal Court considered Mr Abdelrazik’s case in the context of a challenge to the Canadian Government’s refusal to allow Mr Abdelrazik to re-enter Canada when he was returning from Sudan. The Court held that the 1267 listing, while imposing a travel ban, did not, as the Government argued, prevent his repatriation to the country of his citizenship, and found a breach of the Canadian Charter of Rights and Freedoms. In rendering its decision, the Court was quite critical of the implications of the 1267 regime for individual rights and freedoms.26 While Mr Abdelrazik was repatriated in accordance with this decision, he remained on the Consolidated List.27 In September 2010, Mr Abdelrazik proceeded with a second claim against the Canadian Federal Government and the Foreign Affairs Minister, for a total of $27 million in damages. He alleges breaches of sections 7 (security of the person), 12 (right against cruel and unusual treatment or punishment), and 6(1) (right to enter Canada) of the Canadian Charter on the basis of the knowledge and complicity/involvement of the Canadian Secret Intelligence Service, and other agencies of the Federal Government, in his imprisonment and mistreatment in Sudan, and in the (p. 416) Government’s refusal to provide Mr Abdelrazik with a Canadian passport to allow him to return to Canada from Sudan. In a separate claim, Mr Abdelrazik, together with the British Columbia Civil Liberties Association and the International Civil Liberties Monitoring Group, is seeking an order quashing the regulations implementing the 1267 sanctions regime28 in Canada alleging a breach of the Canadian Charter; and seeking a declaration that the regulations are ultra vires the legislation under which they were made.

These and other due process issues were recognized in the UN system early on in the 1267 regime’s existence. Most notably, in 2005, the General Assembly called upon the Security Council, with the support of the Secretary-General, to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, in relation to all sanctions regimes.29 In June 2006, the Secretary-General then set out his views on the minimum standards required to ensure listing and delisting procedures were fair and transparent, identifying four basic elements: (1) the right of a person against whom measures have been taken to be informed; (2) the right of such a person to be heard; (3) the right to review by an effective review mechanism; and (4) a periodical review of targeted sanctions by the Security Council.30 These are reflective generally of due process standards applied by states domestically in relation to decisions affecting the rights and obligations of individuals, and are found also in international human rights law. At the same time, the President of the Security Council also reiterated the Council’s commitment to ensuring ‘fair and clear procedures’.31

2.2.  The Security Council Response

In furtherance of such fair and clear procedures, a series of measures has been adopted by the Security Council since 2004, including with respect to information flow, notification of listings, and increased due process (discussed in the next section). Notably, after first calling on states to include the necessary information to show the basis for the listing in January 2004,32 in July 2005 the Council required states submitting new names to provide a statement of case setting out the reasons underlying the proposal.33 The Committee could then use this statement in responding to queries from states whose nationals, residents, or entities had been listed and from other interested parties, with the proposing state’s consent. In 2008, these statements of case became the basis for meeting the Council’s requirement that a (p. 417) narrative summary for new listings be posted on the 1267 Committee’s website.34 Most recently, the Council has mandated that the statement of case, excluding any parts identified by a state as confidential, is to be releasable upon request.35 Alongside the increasing publicity of the bases for listing decisions, the requirements for the content of the statement of case have steadily become more detailed and rigorous. For example, the new Standard Forms for proposed listings emphasize the provision of as much, and as detailed, information as is possible, and this is echoed in the Committee’s own Guidelines.36

Similarly, the Security Council, after initially ‘strongly encouraging’ states to provide persons and entities with notifications of listings,37 has ‘demanded’ since 2008 that states take all possible steps to notify designated individuals and entities of their listing in a timely manner.38 This would include taking steps to identify an address for the individual or entity for the notification, and then making that notification. Furthermore, in 2008 the Council tasked the UN Secretariat with informing the permanent mission of a listed person or entity within three working days of the listing.39 The Committee has also developed a series of publicly available guidelines which sets out the applicable procedures and methods, and takes steps to remove some of the mystery surrounding the process.40 Additionally, it gives guidance to states proposing listings on the supporting information that is necessary,41 and also calls on other Committee members and the Monitoring Team to share any additional information they hold on the proposed listing.42 The Guidelines also provide for the Monitoring Team to review any new information it receives about a listing and to submit that to the Committee for consideration, either to include in the narrative summary or to be held by the Team.43

While these measures enhanced transparency and augmented the amount of information made available, a central question of fairness remained arising from the lack of recourse available to listed individuals and entities to challenge their listing. It was clear that provision needed to be made for individuals and entities to be delisted, (p. 418) either through Committee initiated action, or by the establishment of a process for considering requests to that effect.

As early as 2002, the Security Council had allowed for delisting petitions to be submitted by states of residence or nationality, and the procedure was set out in the Committee’s Guidelines published in November that year. In 2006, the process was expanded to allow for such applications to be brought directly by an individual or entity to the Committee, without requiring state intervention. Security Council Resolution 1730 established a Focal Point in the UN Secretariat to receive delisting requests under a number of UN sanctions regimes and to present them to the relevant Committee for consideration.44 Twenty-five requests (covering 18 individuals and 22 entities) submitted to the Focal Point resulted in three individuals and 17 entities being delisted.45

In 2008, the 1267 Committee was directed by the Security Council to review, with the assistance of relevant states (states of residence, and states that had proposed listings), all of the entries on the Consolidated List to ensure the list ‘is as updated and accurate as possible and to confirm that listing remains appropriate’.46 At that time there were 488 names on the list, nearly 270 of which had been added in 2001 before information requirements were introduced. The review process of each listing was thorough and the Committee consulted widely, seeking information from a total of 89 states. In September 2010 the Committee announced that all 488 listings had been reviewed and 380 were approved. The names of 45 individuals and entities were removed, and 63 were pending decision while waiting for further information.47 Security Council Resolution 1904 now also mandates ongoing, annual review by the Committee of all names on the Consolidated List that have not been reviewed in three or more years.48

3.  The Ombudsperson and Due Process

While all of the measures adopted incrementally over a ten year span have served to enhance the effectiveness and fairness of the 1267 Committee process, unquestionably the most significant step came in December 2009 with the adoption of (p. 419) Security Council Resolution 1904 and the establishment of the Office of the Ombudsperson.49

The Office of the Ombudsperson was created to provide an independent mechanism through which listed individuals and entities could bring an application for delisting. Unlike the predecessor Focal Point position, the Ombudsperson has both a procedural and substantive role to play and is specifically tasked to assist the 1267 Committee with its consideration of delisting petitions.

3.1.  The Ombudsperson Procedures and Fair Process

3.1.1.  Information Gathering

The first phase of the Ombudsperson process focuses on gathering information. To this end, the Ombudsperson is specifically mandated to obtain information from states, the Monitoring Team, and other relevant UN bodies. In addition, given that the ultimate aim is the production of a comprehensive report, the Ombudsperson is also free to, and should, pursue any other sources of information which may be relevant to the case.50

While the Ombudsperson has no power per se to compel the production of information from states, several factors combine to give strength to the Ombudsperson’s requests in this regard. Notably, the request for information made by the Ombudsperson is mandated in a Chapter VII Security Council resolution binding on states. The Ombudsperson is also directed to update the 1267 Committee as individual cases progress, specifying ‘details regarding which States have supplied information’.51 Further, the ultimate comprehensive report on a particular case will detail the Ombudsperson’s activities and set out all of the information gathered (save for any confidential material). Clearly, any gaps as between states solicited and information obtained will be obvious to the Committee through that report. Additionally, biannually, the Ombudsperson reports directly to the Security Council on the activities of the Office and, in that context, the question of state cooperation is a matter which can be addressed to the Council. The combination of these factors, while not equating to a judicial or compulsory power, certainly facilitates and encourages cooperation by states in the provision of information. In practice, while it is too early to assess their overall effectiveness with any precision, the cooperation of states to date has been good.52

(p. 420) Cumulatively, the result is that the Ombudsperson is placed in a unique position in terms of access to relevant information for delisting applications. Also, because the requests for information can be presented to any state, the limitations which domestic courts and officials face when the information is not held by their authorities do not exist for the Ombudsperson. The direct benefit for the individual or entity involved, and for fair process generally, is that, barring any issues of access and confidentiality which will be considered later, this information can be shared with the listed person or entity. If the process functions in an optimum way, this will provide a real opportunity for petitioners to ‘know’ the case against them, leading to a meaningful opportunity for a response to that case. This aspect of the Ombudsperson’s process addresses the first of the Secretary-General’s criteria—the right to be informed.

3.1.1.1.  Access to Classified Information

One very significant question, as yet unanswered, is the extent to which the Ombudsperson may access confidential/classified information which underlies particular listings.53 Ultimately, this question will have a substantial bearing on whether or not procedural fairness can be accorded in individual cases.

To begin with, the question is sometimes raised whether access by the Ombudsperson—which would usually begin and end with the Ombudsperson—advances the process in any substantial way. In other words, if the information is viewed solely by the Ombudsperson and cannot be shared with the petitioner, does it contribute to the overall fairness of the process? The answer, in the current author’s view, is unquestionably ‘yes’. The process, as envisaged, would involve the Ombudsperson reviewing classified information where it is essential to an aspect of the delisting application. The Ombudsperson would then be in a position to recount in the comprehensive report that such a review had taken place. Obviously, any proposed comments related to a review of confidential/classified information would have to be carefully vetted with the providing state to ensure that full protection was accorded to this sensitive material.

If such a system could be accomplished, it would mean that an independent third party had seen the information ex parte and assessed it in terms of the overall basis for the delisting petition. In this special context of a Security Council regime, such access would provide a level of procedural fairness akin to the kinds of reviews which take place in administrative proceedings in national and regional contexts, when national security or other sensitive information is implicated. It would provide a significant measure of independent review fitting within the Secretary-General’s third criteria of review by an effective mechanism.

(p. 421) It remains to be seen if such access can be achieved on a practical level. Once again, at this early stage in the development of the Office of the Ombudsperson, it is not possible to judge how efforts in pursuit of this information will fare. The problem is a complex one. To provide such access, states must address domestic policy concerns; for some, there may be legal obstacles also. If these policy or legal barriers can be overcome, it will still be necessary on a case by case basis to determine what form disclosure should take and what assurances will be needed to satisfy the demands of individual states respecting the same.

Due to the complexity of this issue, some practical measures can be used to keep the instances of such access to a minimum. A first and important step is to determine from the relevant states if any classified information is being relied upon with respect to any particular listing by the 1267 Committee. In some instances it may be that the case is premised on material which is not classified. This may be the case, for example, where the information underlying the listing has also been examined in the context of litigation or criminal proceedings. Similarly, especially in cases which date back several years, it may be that classified information relied upon at the time of the original listing no longer needs to be so categorized. In other words, it may be possible to declassify the information and provide it to the Ombudsperson and the petitioner.

While these practical options can be pursued on a case by case basis, it is apparent that there will be some instances where the question of access to classified information will be central to a proper assessment of the delisting application. It remains to be seen how the process will function on those occasions and whether an institutionalized approach to this question can be developed to allow for a sufficient level of procedural fairness to be accorded.

3.1.2.  The Dialogue Phase

The innovative inclusion of a dialogue period with the petitioner is important in several respects in terms of fair process. The manner in which the dialogue will take place can vary from case to case depending on the issues and particular circumstances surrounding the listing. It can range from many questions and answers to just a few, and from an exchange of correspondence or email to a live interview. Regardless of the form, the exchange itself is significant to ‘fair process’. To begin with, it provides the opportunity to ‘inform’ the petitioner of the information gathered, subject to confidentiality, and thus of ‘the case against him’. Further, the exchange allows for the presentation of the answer by the petitioner to that case, and provides an opportunity for the Ombudsperson to draw out further information, obtain clarification, and provide responses to questions, including those posed by states. Even the process of relaying responses back to states can be of value in obtaining a more precise understanding as to the basis for the listing and the petitioner’s response to it. It is also a mechanism through which the Ombudsperson can test information presented in order to make the subsequent analysis and observations provided to the Committee more meaningful.

(p. 422) As a result the dialogue phase has a two-fold contribution to make to procedural fairness. Through the exchange, the petitioner can be made fully aware of the case against him or her and be afforded the opportunity to respond fully to it. Further, that information and the resulting analysis and observations of the Ombudsperson, reflected in the description of the arguments, contribute to a considered decision by the Committee. In this way, the phase of the process contributes both to the right to be informed, and the right to be heard.

3.1.3.  The Comprehensive Report

The ultimate output of the Ombudsperson process is a comprehensive report which sets out the information gathered and provides analysis, observations, and the principal arguments in the case. It is a vehicle for many aspects of procedural fairness.

To begin with, and perhaps most significantly, this is the means by which the petitioner can be ‘heard’ by the decision-maker. Through the report, the Ombudsperson presents information from the petitioner, namely the response to the case and an outline of the principal argument(s) in support of delisting. Due to the dialogue phase of the process, the Ombudsperson has a means of ensuring that the case which the petitioner advances is fully and fairly presented to the Committee. Additionally, the report serves as a vehicle to bring the relevant information made available to the Ombudsperson before the Committee members for the purpose of the decision, subject to any confidentiality restrictions as highlighted below. In this way the decisions taken can be as informed as possible. Finally, the results of the Ombudsperson’s review of the underlying information in the case, as reflected through the analysis, observations, and the description of the arguments, will be submitted for the Committee’s consideration. While the decision-making power clearly and firmly rests with the 1267 Committee, the report will assist in enriching the process by which that decision is ultimately reached. The presentation of this report, which includes the petitioner’s answer to the case, provides a means by which the petitioner can be ‘heard’ by the decision-maker. Further, the preparation of the report, with the Ombudsperson’s review of information accompanied by analysis and observations, and its ultimate presentation before the Committee, in the current author’s view, provides an independent mechanism of review appropriate in this very particular context.

3.2.  The Ombudsperson—Procedural Fairness ‘Value Added’

Obviously, in these early days for the Office of the Ombudsperson, there are more questions than answers as to its effectiveness. Amongst the most critical queries, will it work in practice to its full potential and, if so, will it deliver appropriate fair process? The answer to the latter is dependent on what constitutes procedural fairness in the unique context of the Security Council and its subsidiary bodies. To date, much of the writing and the judicial determinations seem to assume procedural (p. 423) fairness which mirrors that which is applicable in a national or regional context, thereby seeking to apply domestic or regional standards to this international regime.

However, there are multiple and apparent difficulties with such an approach. Protections accorded to achieve procedural fairness will vary from state to state, and region to region, depending on the applicable law, legal system, and other factors. Thus, these standards do not offer a consistent test appropriate for an international setting, not least that of the Security Council or its 1267 Committee. Further, procedural fairness is very contextual. Even in a domestic setting what constitutes fairness will vary. For example, the requirements for fairness in a criminal proceeding will be distinct from what is needed in an administrative process. There will also be special circumstances and issues—such as questions of national security—which will demand exceptions or specially tailored procedures to balance competing interests properly. Correspondingly, it stands to reason that with respect to the Security Council—which has its own unique context—there will need to be procedural fairness appropriate for this very particular situation.

Following the approach of the Secretary-General, and focusing on the fundamental components of fairness, as opposed to the mechanics by which they are delivered, it is suggested here that the Office of the Ombudsperson, functioning to its potential, can provide the necessary fair and clear process in this distinct context. Through the mandate, the right to be informed, the right to be heard, and the right to effective review can be addressed as outlined above. Therefore, on this basis a case can be made in favour of the Office of the Ombudsperson as a mechanism for fair process in relation to the 1267 sanctions regime. Only time will tell, however, if this will be achieved in practice.

4.  Conclusion

Eight months into the operations of the Office of the Ombudsperson, only limited comment can be made as to its performance in practice. However, even in these early days there is measurable progress. Where there was no independent mechanism of recourse, there is now an established and accessible office to which listed individuals and entities can turn, and it is being used. The procedure mandated by the Security Council for gathering information and dialogue is working. Information is being generated, and petitioners are being given an opportunity to know and answer the case against them. Certainly, such progress within a short time demonstrates the Office’s potential. It must now be given the chance to realize this potential fully. It is an opportunity which must be accorded to this new institution for the sake of the rights of individuals and entities, and in aid of strengthening the sanctions regime as a means of countering terrorism as a threat to international peace and security.

Footnotes:

I am grateful for the assistance of Monica Silverwood, a masters student at Columbia Law School, currently an intern in the Office of the Ombudsperson, in the production of this chapter.

UNSC Res 232 (16 December 1966) UN Doc S/RES/232 (Southern Rhodesia); UNSC Res 191 (18 June 1964) UN Doc S/RES/191 (arms embargo regarding South Africa).

UNSC Res 661 (6 August 1990) UN Doc S/RES/661 (economic sanctions on Iraq following the invasion of Kuwait).

UNSC Res 827 (25 May 1993) UN Doc S/RES/827 in which the Security Council decided to establish the Tribunal and adopted the Statute of the Tribunal as annexed to the ‘Report of the Secretary-General Pursuant to Paragraph 2 Security Council Resolution 808 (1993) UN Doc S/25704’. This resolution was preceded by UNSC Res 808 (22 February 1993) UN Doc S/RES/808 in which the Council decided that an International Tribunal would be established and called for a report by the Security-General on the matter.

UNSC Res 955 (8 November 1994) UN Doc S/RES/955, in which the Security Council established the Tribunal, annexing the Tribunal’s Statute to the resolution.

The ‘1267 regime’ comprises a number of resolutions including: UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 which imposed the initial sanctions against the Taliban regime, freezing their funds and other financial resources; UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 which extended the asset and funds freeze to Osama bin Laden, and individuals and entities associated with him, including al Qaeda, as designated by the 1267 Committee; UNSC Res 1390 (16 January 2002) UN Doc S/RES/1390 which added a travel ban and arms embargo against those designated; UNSC Res 1452 (20 December 2002) UN Doc S/RES/1452 which allowed for an humanitarian exception to allow access to funds, with the 1267 Committee’s approval; UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 which called on states to provide identifying and background information to the greatest extent possible that demonstrates the prohibited association; UNSC Res 1617 (29 July 2005) UN Doc S/RES/1617 which set out explicitly what acts or activities would indicate that an individual, group, undertaking, or entity was associated with al Qaeda, bin Laden, or the Taliban, and required states proposing new listings to provide the 1267 Committee with statements of case describing the basis for the proposed listing; UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 which demanded that states take all possible steps to notify designated individuals or entities in a timely manner, and directed the 1267 Committee to publish narrative summaries for listings online; UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 which made a number of important changes, including establishing the Office of the Ombudsperson.

UNSC Res 917 (6 May 1994) UN Doc S/RES/917.

UNSC Res 1127 (28 August 1997) UN Doc S/RES/1127.

On 7 August 1998 simultaneous bombings destroyed the US embassies in Dar es Salaam, Tanzania and Nairobi, Kenya, killing over 200 people.

Security Council Committee established pursuant to Resolution 1267 (1999) concerning Al-Qaida and the Taliban and Associated Individuals and Entities, ‘The Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them’ (last updated 16 June 2011) 〈http://www.un.org/sc/committees/1267/pdf/consolidatedlist.pdf〉 accessed 29 July 2011.

10  The original sanctions in Resolution 1267 imposed a flight ban on all Taliban owned, leased, or operated flights, and required the freezing of Taliban funds and other financial resources. UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 amended the regime by adding an arms embargo and extending the asset freeze to include individuals associated with Osama bin Laden, and individuals and entities associated with him. UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 further expanded the sanctions to include a travel ban on listed individuals.

11  Country evaluations conducted and published by the Financial Action Task Force describe the regimes states use to implement both the 1267 sanctions and other anti-financing of terrorism and money laundering standards.

12  1267 Committee, ‘Guidelines of the Committee for the Conduct of its Work’ (adopted on 7 November 2002, most recently amended 26 January 2011) para 4(a) 〈http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf〉 accessed 2 April 2011.

13  UNSC Res 1617 (29 July 2005) UN Doc S/RES/1617.

14  1267 Committee, ‘Reports of the Monitoring Team’ 〈http://www.un.org/sc/committees/1267/experts.shtml〉 accessed 2 April 2011; UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 Annex I sets out the responsibilities of the Monitoring Team which include assisting the 1267 Committee as described above, as well as working with other counter-terrorism agencies of the UN.

15  UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822.

16  UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 para 6.

17  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 para 47.

18  See, for example, E Miller, ‘The Use of Targeted Sanctions in the Fight Against International Terrorism—What About Human Rights?’ (2003) 97 ASIL Proc 46; B Fassbender, ‘Targeted Sanctions and Due Process: Study Commissioned by UN Office of Legal Affairs’ (20 March 2006) 29–30 〈http://untreaty.un.org/OLA/media/info_from_lc/Fassbender_study.pdf〉 accessed 2 April 2011; Thomas Watson Institute of International Studies, ‘Strengthening Targeted Sanctions Through Fair and Clear Procedures’ (14 June 2006) made an official document of the UN General Assembly and Security Council UN Doc A/60/887-S/2006/331 〈http://www.watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf〉 accessed 9 August 2011; I Johnstone, ‘The UN Security Council, Counterterrorism and Human Rights’ in A Bianchi and A Keller (eds), Studies in International Law: Counterterrorism: Democracy’s Challenge (Hart, Oxford 2008) 341; P Guthrie, ‘Security Council Sanctions and the Protection of Individual Rights’ (2004) 60 New York University Annual Survey of American Law 491, 503–6; M Boethe, ‘Security Council’s Targeted Sanctions Against Presumed Terrorists, The Need to Comply with Human Rights Standards’ (2008) 6 JICJ 541; L van den Herik, ‘The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual’(2007) 20 Leiden JIL 797; C Cheung, The UN Security Council’s 1267 Regime and the Rule of Law in Canada (British Columbia Civil Liberties Association, Canada 2010); UNGA, ‘Martin Scheinin: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (6 August 2010) UN Doc A/65/258.

19  Swiss Supreme Court (Schweizer Bundesgericht), Youssef Mustapha Nada v SECO, Staatssekretariat für Wirtschaft (14 November 2007) 1A.45/2007/daa.

20  Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, adopted on 4 November 1950, came into force 3 September 1953, as amended) arts 4, 5(1), 8, and 13; Nada v Switzerland (App no 10593/08) judgment of 23 March 2011, not yet reported.

21  The Al Barakaat International Foundation was removed from the later cases in this series of litigation as it was delisted by both the 1267 Committee and the EU during the Resolution 1822 review in October 2009 (Committee Press Release 22 October 2009, SC/9773, 〈http://www.un.org/News/Press/docs/2009/sc9773.doc.htm〉 accessed 5 April 2011.

22  Council Regulation (EC) 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network, and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban, and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan [2002] OJ L139/9.

23  Case T-306/01 Yusuf v Council of the European Union [2005] ECR II-3533; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council of the European Union [2008] ECR I-6351. For a detailed discussion of this case and related issues, see A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’, Chapter 4 of this volume.

24  Commission Regulation (EC) No 1190/2008 of 28 November 2008 [2008] OJ L322/25 recorded the process followed in regard to Mr Kadi and the Al Barakaat Foundation, in compliance with the Court’s decision. Regulation 881/2002 (n 22) was subsequently further amended by Council Regulation (EU) No 1286/2009 of 22 December 2009 [2009] OJ L346/42 to apply that process to all listings.

25  Case T-85/09 Kadi v European Commission, judgment of 30 September 2010, not yet reported.

26  Abdelrazik v Canada (Minister of Foreign Affairs) 2009 FC 580 (4 June 2009).

27  Mr Abdelrazik has also recently submitted a delisting petition to the 1267 Committee through the Office of the Ombudsperson.

28  The United Nations Al Qaida and Taliban Regulations SOR/99–444 implementing the 1267 sanctions were made under the United Nations Act 1985.

29  UNGA, ‘2005 World Summit Outcome’ (24 October 2005) UNGA Res 60/1 para 109.

30  UNSC Meeting (22 June 2006) UN Doc S/PV.5474 4–5.

31  UNSC Presidential Statement 28 (22 June 2006) UN Doc S/PRST/2006/28.

32  UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 para 17.

33  UNSC Res 1617 (29 July 2005) UN Doc S/RES/1617 para 4.

34  UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 para 13.

35  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 para 11.

36  1267 Committee, ‘Standard Forms’ Guidelines para 6(d) 〈http://www.un.org/sc/committees/1267/listing.shtml〉 accessed 2 April 2011.

37  UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 para 18.

38  UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 para 17.

39  UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 para 18; UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 paras 15 and 17. The time frame for the Secretariat to notify a permanent mission was amended to three working days after a name is added to the Consolidated List in UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 para 18.

40  The Committee first published Guidelines for the Conduct of its Work in November 2002; their most recent amendment was 26 January 2011, 〈http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf〉 accessed 5 April 2011 (Guidelines).

41  Guidelines (n 40) paras 6(d) and (e).

42  Guidelines (n 40) para 6(i).

43  Guidelines (n 40) para 8.

44  UNSC Res 1730 (19 December 2006) UN Doc S/RES/1730 para 6.

45  These statistics, and those relating to other UN sanctions regimes, are available online at UNSC Sanctions Committees 〈http://www.un.org/sc/committees/dfp.shtml〉 accessed 2 April 2011.

46  UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 para 25.

47  Report of the Analytical Support and Sanctions Monitoring Team on the outcome of the review described in UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822 para 25 submitted pursuant to UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 para 30.

48  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 para 32.

49  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 Annex II provides the process to be followed by the Ombudsperson.

50  For example, there may be court proceedings of relevance or general information available in press reports or on Internet sites. Also, the Ombudsperson may identify individuals who might have information relevant to the case.

51  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 Annex II para 4.

52  See UNSC ‘Letter dated 21 January 2011 from the Ombudsperson addressed to the President of the Security Council’ (24 January 2011) UN Doc S/2011/29 (Ombudsperson Report).

53  Ombudsperson Report (n 52) para 35; that report also notes that work towards the development of such arrangements is continuing as a matter of priority.(p. 424)