February 2007 Monthly Forecast

Posted 1 February 2007
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PEACEMAKING, PEACEKEEPING AND PEACEBUILDING

Sanctions Implementation: Recent Developments

The Council took a step towards improving the effectiveness of UN sanctions in December.  It brought to a conclusion the work of its Informal Working Group on General Issues of Sanctions.  After nearly seven years of work, most recently under the leadership of Ambassador Adamantios Th. Vassilakis of Greece, the Council in resolution 1732 decided on 21 December that the Working Group had fulfilled its mandate. It took “note with interest” (see below) of the best practices and methods suggested in the Working Group’s report, and also requested its subsidiary bodies to take note of the recommendations.

Background
The Council has traditionally been reluctant to adopt a settled, generic policy on the implementation of sanctions and on the working methods of the sanctions committees.  But under pressure from elected members in 2000, the Working Group was established.  As we noted in our January 2006 Forecast no consensus had been achieved after more than 5 years of discussion, largely due to the positions of various permanent members.  

In 2006, however, a significant breakthrough occurred.  The Working Group adopted a report listing:

  • a number of best practices related to sanctions design, implementation, evaluation and follow-up; 
  • committee working methods; 
  • monitoring and enforcement; and 
  • methodological standards and a reporting format for expert groups.  

In deciding that the Working Group had fulfilled its mandate, the Council seems to have signalled its tacit approval of the recommendations contained in the Working Group’s report.  However, the language used gave less than a fulsome endorsement and perhaps reflects the undercurrent of disagreement that plagued the Working Group in the past.

Sanctions design, implementation, evaluation and follow-up
Despite significant progress in recent years in the design of targeted sanctions, the Council still has not managed to achieve consistent clear and precise language in all of its sanctions regimes.  In this regard, the report notes that “proper design, implementation, ongoing evaluation and follow-up of sanctions regimes are key elements that contribute to the effectiveness of sanctions.”  

First, the Working Group recommended that the Council, in designing targeted sanctions, give special weight to:

  • feasibility; 
  • wider implications;
  • an appropriate mix of targeted measures; and 
  • the likelihood of the target taking evasive action to avoid the sanctions.   

Secondly, the Working Group recommended that the Council include clearly defined criteria for the lifting of sanctions, including:

  • the desired change in the behaviour of the target; and 
  • ongoing evaluation of sanctions regimes by the Council.

It noted that clarity about the intended outcome of the sanctions and the desired behaviour of the targets would reduce the risk of disparate enforcement of sanctions based in part on differing interpretations by individual states.  It would also help to reduce situations in which there are differing views in the Council on when the target has met the criteria for lifting of the sanctions. 

In the past, some members had argued that, in every case, there should be a policy of time-bound sanctions linked to clear criteria for lifting or suspension of sanctions.  This approach was not reflected in the Working Group recommendations.

Thirdly, the Working Group recommended that the Council establish credible mechanisms to monitor the implementation of the sanctions.  The development of monitoring mechanisms to assist sanctions committees has had a positive impact on the implementation of sanctions.  However, there are often long delays in establishing these mechanisms, in some cases several months after the Council has adopted the sanctions.  Also, there is no standardised methodology for their work such as investigatory and evidentiary standards and a reporting format.  In some cases, the credibility of reports has been questioned.

Finally, the Working Group recommended that the Council encourage sanctions committees to adopt listing and “delisting” guidelines based on fair and clear procedures.  (This issue was addressed separately by the Council as a result of the work in the Al-Qaida and Taliban sanctions committee on listing and delisting, including adoption of new listing criteria which provides a new standard for all sanctions committees.  The Council on 22 December approved these new standards in resolution 1735, which also annexed the new format for member states’ listing submissions to the committee.)

In addition, resolution 1730 addressed certain delisting issues including the establishment of a “focal point” in the Secretariat, which will serve all sanctions committees, and help with the processing of delisting requests.  (For some initial analysis of listing and delisting and due process, see our January 2007 Forecast.)

Capacity Issues
The Working Group’s report also recommended that sanctions committees and the Secretariat assist states in implementing sanctions.  Many states, particularly those in close proximity to the targets, often lack the capacity – both legal and operational – to implement sanctions.  As a result, implementation and enforcement of sanctions are often ineffective. 

The Working Group’s report included recommendations for providing capacity-building assistance to states and helping the Secretariat to facilitate this.  However, the report recognised that with the proliferation of sanctions regimes and supporting monitoring mechanisms, the Council’s Subsidiary Organs Branch is strained in its ability to provide needed substantive, administrative, logistical and analytical support.  The Working Group recommended that the Council request the Secretary-General to explore ways to strengthen the Secretariat’s capacity to effectively meet the new demands.  It seems the Council did not pick up on this suggestion.

Comment
While the Council has been making progress through the use of monitoring mechanisms comprised of panels of experts in the monitoring of sanctions, there is far less success in implementing sanctions.  There are now six monitoring mechanisms in place (Al-Qaida/Taliban, Côte d’Ivoire, the Democratic Republic of the Congo, Liberia, Somalia and Sudan).  But the outstanding recommendations from these mechanisms show that there are many instances of persistent sanctions violations that remain to be addressed. 

This is due in part to political dynamics in the Council that have led to Council indecision.  Sometimes there is the concern that strictly enforcing sanctions could produce adverse effects on any political process that might be underway in a conflict situation. However, that only reinforces the need for the pre-feasibility considerations recommended by the Working Group as part of the design of sanctions and the decision-making process leading up to the approval of sanctions measures. It also reinforces the need to move quickly when violations become apparent rather than waiting until vested interests have built up around a pattern of sanctions avoidance. 

Expert Groups
The Working Group also suggested clear guidelines for the committees on expert groups. These include recommendations for:

  • The working methods of expert groups and in particular that there are clear standards in the conduct of all areas of their work, including in investigations and the format of reporting, while maintaining their independence.  Also, that there should be increased cooperation and sharing of information among expert groups to help to avoid duplication of work.  At present, monitors, particularly when investigating arms embargos, travel to the same countries, ask the same questions, and investigate the same sanctions violators.
  • Improved implementation of the recommendations of the reports of expert groups.   This is aimed at addressing gaps in the presentation of reports to the committees, their consideration, and their subsequent adoption by the Council.  The Working Group recommended that the reporting of recommendations be standardised and prioritised according to criteria such as urgency and ease of implementation.  With an increasing number of recommendations being put forward by monitoring mechanisms, many are being left without any action taken for a long period of time.  For example, there are more than 50 recommendations of the Al-Qaida and Taliban sanctions Monitoring Team, some of which have been before the committee for as much as a year without being acted upon. 
  • On the establishment of the roster of experts, which includes criteria for their selection, the Working Group recommended transparency in the selection process for the Secretariat’s roster and periodic review to determine availability of experts.

Working methods of Sanctions Committees
The Working Group recommended improved working methods and increased transparency for the committees.  Its recommendations also included harmonisation of guidelines, providing a template for reporting and disseminating them to states. 

This would help to remove the delays experienced by new sanctions committees in adopting guidelines, and the confusion caused in states’ reporting requirements.

The potential impact of the Working Group Report
The Working Group’s recommendations seem likely to provide a useful benchmark to be achieved by the Council, the committees and monitoring mechanisms.  Some members of the Council, particularly new members that may be unfamiliar with various recent sanctions initiatives (such as Interlaken, Bonn-Berlin and Stockholm) now have a reference point to help the effectiveness of sanctions regimes, and may improve the working methods of the committees and monitoring mechanisms.

However, it is clear from the Working Group report that there remains unfinished work on sanctions issues, especially to ensure the consistent application of the Working Group recommendations across the various committees.  Despite this, the Council disbanded the Working Group. A new mandate to develop methodology and guidance to sanctions committees on how best to implement the Working Group’s recommendations, including the drafting of standard guidelines for all committees, would have been an option.  But in the absence of the Working Group, members wishing to pursue such issues will have to raise it in the Council itself.  

Thinking outside the box: 1267 Monitoring Team engages Bankers’ Group
An interesting development on sanctions implementation that was separate from the Working Group’s report, but very much in line with its spirit, comes from the Monitoring Team of the Al-Qaida and Taliban Sanctions Committee (1267 Committee).  It is reaching out to bankers, bankers’ associations and other private-sector financial experts in an effort to find ways to improve the effectiveness of international financial sanctions applicable to Al-Qaida and the Taliban and their associated entities.  This initiative was launched by the Monitoring Team in September when it sent a letter to possible candidates inviting them to participate in a “Bankers’ Group” for this purpose.  The Group’s first meeting will be held on 2 February.

In its latest, but still unpublished, report, the Team recommended that the Committee re-examine the assets freeze process. More effort will be needed to properly supervise and implement the freeze since terrorist groups and their financiers are deploying new techniques to disguise assets.  The team concluded that so far, monitoring and supervision costs far exceed the amount of assets being identified and are disproportionate to the amount of assets located and frozen. 

Following from that, the Council in Annex II to resolution 1735 authorised the Monitoring Team “to consult with relevant representatives of the private sector, including financial institutions, to learn about the practical implementation of the assets freeze and to develop recommendations for the strengthening of that measure.” 

With this new mandate, the Monitoring Team has proposed the formation of a working group from among the Bankers’ Group, which would include major players from the financial sector.   It is proposed that at this meeting a working group comprised of members of the Bankers’ Group and the Monitoring Team would participate in discussions leading to the drafting of a report that would contain recommendations to the Council. 

Issues on the meeting’s agenda will include the following:

  • the Council’s expectations from the assets freeze;
  • ways in which national authorities should implement the assets freeze;
  • actions demanded of financial institutions;
  • the extent to which each such action is likely to achieve the Council’s expectations;
  • ways to better meet the Council’s expectations; and
  • the main impediments to effective sanctions implementation through financial institutions.

Selected participants, including representatives of the International Monetary Fund and the World Bank, will join discussions in the working group.  Any recommendations from the working group, if adopted by the Council, would also have a bearing on the work of all sanctions committees monitoring assets freezes.

UN Documents

Selected Security Council Resolutions

  • S/RES/1735 (22 December 2006) inter alia, adopted new listing guidelines, a format for listing information, renewed the mandate of the 1267 Committee Monitoring Team and directed the Team to consult with the financial private sector.
  • S/RES/1732 (21 December 2006) decided that the Working Group had fulfilled its mandate and noted its recommendations.
  • S/RES/1730 (19 December 2006) established the delisting “focal point” in the UN Secretariat.
  • S/RES/1616 (29 July 2005) established the group of experts on the DRC sanctions.
  • S/RES/1526 (30 January 2004) established the Monitoring Team on the Al-Qaida and Taliban sanctions.

Other Selected Documents

  • S/2006/997 (22 December 2006) was the Sanctions Working Group final report.
  • S/2005/841 (29 December 2005) was a note by the Council president establishing the renewed mandate for the Working Group.
  • S/2000/319 (17 April 2000) was a note by the Council president establishing the Working Group.
  • S/1999/92 (29 January 1999) was a note by the Council president on proposals to improve the work of sanctions committees.

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