December 2012 Monthly Forecast

Posted 30 November 2012
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PEACEMAKING, PEACEKEEPING AND PEACEBUILDING

Counter-Terrorism

Expected Council Action

In December, the Council is expected to renew the mandate of the Ombudsperson and the Analytical Support and Sanctions Monitoring Team assisting the 1267/1989 Al-Qaida Sanctions Committee.

The mandates of the Ombudsperson and the Monitoring Team expire on 15 December.

Background

The Council initially established the Office of the Ombudsperson in resolution 1904 (2009) for a period of 18 months. This was done after political and legal backlash occurred, caused by lack of due process in the listing and delisting procedures, especially from states trying to implement the sanctions. The Ombudsperson was mandated to receive delisting requests from petitioners and to act in an independent and impartial manner. After interacting with the petitioner, relevant states and organisations with regard to the request, within an established time frame, the Ombudsperson is to present a comprehensive report to the 1267/1989 Committee with the principal arguments concerning the specific delisting request.

The mandate of the Ombudsperson was renewed and expanded on 17 June 2011 in resolution 1989. The resolution contains several innovations. First, it encourages past and future designating states to publicly identify themselves as such. Second, it extends the mandate of the Office of the Ombudsperson for 18 months and adds that it shall present the 1267 Committee with observations and recommendations on the delisting requests received. Where the Ombudsperson recommends retaining a listing, states continue to be bound to apply sanctions to the relevant individual, unless a member of the Committee submits a delisting request, which the Committee must approve by consensus. Where the Ombudsperson recommends delisting, sanctions cease to apply to that individual 60 days after the Committee completes consideration of the comprehensive report of the Ombudsperson, unless the Committee decides to the contrary by consensus. During that time period, a Committee member may request that a decision on delisting be brought before the Security Council (where the consensus requirement does not apply). The same procedure applies when a delisting request is made by the designating state.

The current Ombudsperson is Kimberly Prost (Canada), who was appointed by the Secretary-General on 3 June 2010.

On 5 October, following the recommendation of the Ombudsperson, the Committee delisted Yasim Kadi.

The Kadi case has been the most notable legal challenge to the 1267 sanctions regime and concerned an EU regulation implementing the Council-mandated sanctions. Kadi and others sought the regulations’ annulment by the European Court of Justice (ECJ) on the grounds, inter alia, that it infringed on their rights to property, to a fair hearing and to an effective judicial remedy—all rights provided for in the European Convention on Human Rights. The Court of First Instance (now called the General Court) held that the obligations of EU members to implement sanctions under a Chapter VII resolution prevailed over fundamental rights as protected by the EU, with the exception of infringement on jus cogens norms—norms accepted and recognised by the international community of states as a whole as those from which no derogation is permitted. Prime examples are slavery, genocide and crimes against humanity.

On appeal in the Kadi case, the ECJ took a different approach. On 3 September 2008, it struck down the EU implementing regulation because the appellant had not been afforded due process by not being able to challenge the listing in a court. Following the ruling, and adopting a different procedure in an effort to comply with the ECJ, the European Commission re-imposed the measures on Kadi, who once again challenged the listing before the European courts (Kadi II case). In its judgment of 30 September 2010, the General Court, following on the ECJ, again struck down the listing. The case is currently under appeal before the ECJ. On 16 October, the ECJ held hearings on the appeal in the Kadi II case. A judgment is expected sometime in 2013.

Key Recent Developments

Prost submitted her fourth report (S/2012/590) to the Council on 30 July. She noted that state cooperation was generally strong and efforts were ongoing to overcome some of the most difficult problems, including the question of access to confidential or classified information. During the reporting period, the Office of the Ombudsperson has made arrangements for access to classified or confidential information with five states: Australia, France, Germany, Liechtenstein and Portugal. In addition, the Office has signed its first formal agreement with one state, Austria, on the sharing of information. Together with the existing arrangements (with Belgium, Costa Rica, New Zealand, Switzerland and the UK), this brings the total number of agreements or arrangements to 11. Also during the reporting period, the US expressed willingness, and demonstrated an ability, to share confidential information on an ad hoc basis.

The Ombudsperson continued to request that her mandate be expanded to cover instances of continued application of sanctions measures against individuals already delisted and would also like a mandate to refer requests from listed individuals for humanitarian exemptions to the Council.

Regarding resources, the Ombudsperson noted an improvement after two staff positions for her office were approved. She noted the lack of funds for the translation of materials and communications that are not in one of the six official UN languages.

Of 19 cases processed by the Ombudsperson since the establishment of the position and upon which a decision was taken by the 1267/1989 Committee, one was denied by the Council; one was amended and a name of an entity was removed as requested; and 16 were delisted. (The Al-Qaida sanctions list currently includes 232 individuals and 62 entities and other groups or undertakings associated with Al-Qaida.

Human Rights-Related Developments  

During the presentation of his report to the General Assembly on 2 November, Ben Emmerson, the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, urged the Council to bring the Al-Qaida sanctions regime into conformity with international human rights norms, stressing that placement on the sanctions list is not subject to judicial review. He called on the Council to increase the powers of the Office of the Ombudsperson, including in imposing an obligation on states to disclose information to the Ombudsperson on conditions of confidentiality. He also called for granting a right to legal representation in the delisting procedure. Emmerson added that the Security Council should reconsider a sunset clause that would impose a time limit on the duration of all designations.

Key Issues

The key issue for the Council in December is renewing the mandate of the Ombudsperson and the Monitoring Team.

In this context, an important issue is assessing the implications of the wider mandate of the Ombudsperson under resolution 1989 and whether the mandate should be further adjusted.

Options

One option for the Council is to renew both mandates without changes and for the customary 18-months period.

Another option is to make several adjustments in the mandate of the Ombudsperson. Some of these could  include a longer mandate term for the Ombudsperson (of at least 3 years); proper resources for the functioning of the office, including sufficient funds for translations and proper staffing; and better arrangements for the sharing of information by states with the Ombudsperson. 

Council and Wider Dynamics

At press time, the US—which holds the pen on the 1267/1989 mandate renewal—has yet to circulate a draft resolution. Meanwhile, it has met bilaterally with several Council members to discuss the text of the resolution.

At present, it seems that Council members are in agreement that both mandates should be renewed, yet there may be disagreements over the specifics of the mandates.  One issue that is likely to be negotiated are possible adjustments to the role and resources of the Office of the Ombudsperson.

Some Council members are of the view that several improvements in the mandate of the Ombudsperson are warranted. Some of these positions are reflected in the views of the informal group of like-minded countries on targeted sanctions (current Council member Germany is among the like-minded countries).

Some permanent Council members feel that the Council went to great lengths to improve the due-process procedures in resolution 1904 and that only minimal adjustment are called for in the current mandate renewal.

UN Documents

Security Council Resolutions  
17 June 2011 S/RES/1989 This resolution empowered the Ombudsperson to make delisting recommendations to the 1267/1989 Committee.
17 December 2009 S/RES/1904 This resolution renewed the mandate of the 1267 Committee Monitoring Team for 18 months. The resolution also included significant changes to the administration of the 1267 regime, including the creation for an initial period of 18 months of an Office of the Ombudsperson, which is intended to serve as a point of contact for individuals and entities requesting that they be delisted.
15 October 1999 S/RES/1267 This resolution established the Al-Qaida and Taliban Committee and its sanctions mandate.
Security Council Meeting Records  
10 May 2012 S/PV.6767 This debate followed breifings by the chairs of the three counter-terrorism committees—the 1267/1989 Committee, the 1373 Committee and the 1540 Committee.
Other  
5 October 2012 SC/10785 This press statement announced the delisting of Yasin Abdullah Ezzedine Qadi.
26 September 2012 A/67/396 This was the report of the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
30 July 2012 S/2012/590 This was the Ombudsperson, Kimberly Prost’s, fourth report to the Council.

Additional Useful Resources

The April letter from the group of like-minded countries on targeted sanctions, which contained proposals to improve the 1267 sanctions regime

Other Relevant Facts

1267/1989 Committee Chair

Ambassador Peter Wittig (Germany)