Targeted Sanctions: Listing/De-Listing and Due Process
On 19 December the Council established in resolution 1730 “a focal point” within the UN Secretariat to process submissions for de-listing under resolution 1267 (Al-Qaida and Taliban sanctions) and other sanctions resolutions. The Council also directed other sanctions committees to revise their guidelines for listing and de-listing. This action followed unheralded but important changes to the listing process which were promulgated on 29 November.
Human rights organisations, the legal community, scholars, and many UN member states have long criticised the Council for the lack of due process and transparency in placing (listing) and removing (de-listing) names of individuals and entities targeted for sanctions. The Secretary-General’s High Level Panel on Threats, Challenges and Changes in 2004 and the 2005 World Summit Outcome document called for fair and clear procedures. In 2006, the Council itself stressed this need and asked the Committee in a presidential statement to work on improved guidelines for listing and de-listing.
Established in 1999 by resolution 1267 to monitor the implementation of aviation and financial sanctions imposed on the Taliban regime in Afghanistan for harbouring Usama bin Laden, the Committee established and maintains the Consolidated List of individuals and entities to which sanctions measures apply. The List is updated periodically. Names are added and, on rare occasions, removed. Subsequent resolutions, after 11 September 2001, expanded and strengthened the measures such as the travel ban, assets freeze and arms embargo on Al-Qaida, Usama bin Laden and the Taliban. In particular, resolution 1390 of January 2002 extended the applicability of the Taliban sanctions to “the Al-Qaida network” and “other individuals, groups, undertakings and entities associated with them”, dramatically increasing the pool of potential targets for the sanctions.
The Committee decides by consensus whether to place an individual or entity on the List according to information provided by a UN member state known as the designating state. De-listing can occur only by the unanimous consent of Committee members or by a decision of the Security Council.
A growing body of criticism has been levelled at the 1267 Committee mostly concerning the secrecy surrounding the rationale for designation and the lack of transparency and due process in listing and de-listing. Some listed individuals claim mistaken identity and deny having any association with terrorism or terrorist groups. Lives have been disrupted and entities unable to conduct business due to assets freezes and travel bans. This has resulted in a number of legal challenges, which generated pressure on the UN to review the process of listing and de-listing.
In 2004, the report of the Secretary-General’s High Level Panel on Threats, Challenges and Change noted “the way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions.” The Panel recommended that the “Al-Qaida and Taliban Sanctions Committee should institute a process for reviewing cases of individuals and institutions claiming to have been wrongly placed or retained on its watch lists.”
The 2005 World Summit Outcome document 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, as well as for granting humanitarian exemptions.”
Following the 2005 Summit, the Secretariat’s Policy Committee (chaired by the Secretary-General, comprising some 12 top UN officials with political responsibilities) asked the Office of Legal Affairs (OLA) to address the problem. It was widely anticipated that OLA would develop clear listing and de-listing criteria in response to the Summit Outcome Document. OLA was also expected to consider a submission from the Office of the High Commissioner for Human Rights.
OLA commissioned Professor Bardo Fassbender of the Institute of International and European Law, Humboldt University (Germany) to prepare a study on due process. His draft report, Targeted Sanctions and Due Process, was reviewed by a group of international law experts at a special seminar arranged by OLA. The final report was expected to be reviewed by the Policy Committee when the Secretary-General was to make recommendations to the 1267 Committee. These were to include elements of procedural and substantive due process absent from the listing and de-listing procedures of the Committee.
However, this approach was derailed when the 1267 Committee decided that it would consider only proposals put forward by Committee members, so the Fassbender report was shelved.
After several months of discussions, the Committee agreed in July 2006 on amendments to listing guidelines but these were not formally promulgated until 29 November 2006 when they were posted on the Committee website. The new Consolidated List section, “Guidelines of the Committee for the conduct of its work”, established new standards for listing. Designating countries now have to provide more detailed information about individuals and entities to be listed. They have to provide a statement of case that forms the basis or justification for the listing in accordance with relevant resolutions. This has to include as much detail as possible, including specific findings demonstrating the association or activities alleged, and the nature of supporting evidence and supporting evidence or documents that can be supplied. The designating state is also required to inform the Committee of what portion of the statement may be publicly released to member states.
While not reaching judicial evidentiary standards, the details and quality of the information required under the amended guidelines, including the potential for increased transparency given possible public release, seem to be a marked improvement. However, the process has no provision for the targeted persons to present submissions or even to be informed that measures against them are being taken.
The new guidelines essentially apply only to new listings. However there is a possibility of review of old listings that have not been updated for four years. No specific mechanism was established to review old listings to ensure that they met the new standards, except that the Secretary-General has been asked to circulate a list of names on the Consolidated List that have not been updated in four or more years, and a review would be undertaken by the Committee at the request of a member of the Committee.
A general review would be a major undertaking as many designated individuals and entities (487 as of 6 December 2006) were placed on the Consolidated List without the designating country providing the Committee with adequate supporting information and evidence.
Discussion of the de-listing process proved much more contentious. It seems that Committee members accepted that the due process issues with listing (absence of opportunity to be informed in advance and to present submissions) would be tolerable, given the risk of persons and assets moving to other jurisdictions, provided reasonable processes existed for persons to challenge their listing. This, however, has shifted the hard debate to de-listing.
The Committee decided to rely exclusively on draft proposals provided by its own members and to exclude consideration of other efforts to provide guidance. The Fassbender report-as well as an initiative of the governments of Germany, Sweden and Switzerland in collaboration with the Watson Institute for International Studies at Brown University (USA)-on the due process implications of listing and de-listing, appear to have been largely ignored. The latter paper benefited from discussions involving experts and others having broad experience with the design and implementation of sanctions and the listing and de-listing processes, and included significant input by Hans Corell, the former Legal Counsel of the UN.
During 2006, the Committee spent much time discussing a draft proposal first submitted by France and joined by the US to establish “a focal point” within the UN Secretariat to process submissions for de-listing. Resolution 1730 now establishes this focal point and the annex to the resolution contains new “de-listing procedures” to guide the focal point. The focal point will serve as a clearing house within the Secretariat for the receipt of applications and it will also act as a facilitator of consultations between the designating country and the requesting country.
It seems the Council was not ready to create a review mechanism. Instead, de-listing decisions remain with the Committee and ultimately with the Security Council itself. It would be a stretch to conclude that the new “de-listing procedures” fully respond to due process concerns as those are commonly understood. Under this scheme, the outcome of each request will still be determined by the Council member who proposed listing as a result of the consensus rule in the committees.
During the deliberations, Qatar offered counter-proposals to the French-US proposal. These would have established a focal point “composed of independent experts with appropriate experience in criminal, administrative and international law, to receive and review de-listing requests from petitioners or their representatives and make its recommendations accordingly.” It would have allowed direct access to an independent review process without the necessity of relying on a requesting government that might be constrained due to bilateral or other considerations. Under this proposal, the focal point would establish its own rules and procedures and criteria for de-listing in accordance with applicable international standards.
Under this proposal, rather than playing a procedural role as a clearing house and facilitator of the process, it would have a more substantive function in the de-listing process. But even under this proposal, in practice, most recommendations would remain subject to the decision-making procedures of the Committee and the Security Council, including the consensus rule in the Committee in the former and the veto power of the P5 in the latter. If the designating country is a permanent Council member, that member would retain the power to deny a de-listing request regardless of the recommendation of the “independent experts”.
While the Council spent much time in 2006 on listing and de-listing procedures, the agreed procedures seem unlikely to quell the concerns of the wider international community and may not be enough to ward off legal challenges.
Selected Security Council Resolutions
Other Selected Documents