What's In Blue

Posted Wed 22 Oct 2014

Working Methods Debate

Tomorrow morning (23 October), the Security Council will hold its fifth annual open debate on Council working methods. Ambassador María Cristina Perceval (Argentina), the chair of the Informal Working Group on Documentation and Other Procedural Questions, will brief. , There will also be briefings by the Ombudsperson for the Al-Qaida Sanctions Committee, Kimberly Prost, and the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda as Argentina has suggested in its concept paper (S/2014/725) that the open debate focus on cooperation with the ICC and due process in targeted sanctions However, it is likely that many of the tomorrow’s participants will focus on more integral aspects of working methods, including restricting the use of the veto in mass atrocity situations, the Council’s role in conflict prevention, wrap-up sessions, as well as Council interaction with troop and police-contributing countries.

The previous annual open debates on working methods have generated a high level of interest among the membership at large with between 20 and 38 member states taking the floor in addition to Council members.

Cooperation with the ICC
Bensouda is likely to focus on the importance of cooperation and stress the need for consistent Council attention on state cooperation. Argentina’s concept note recalls the open debate held on 17 October 2012 that focused on the Council’s relationship with the ICC, where a number of member states called for a more efficient and vigorous follow-up on cases referred by the Council to the Court as an essential element of the Council’s attempt to foster justice and accountability for serious crimes of international concern.

To date, the Council has referred two situations to the Court: the situation in Darfur (resolution 1593 (2005)) and the situation in Libya (resolution 1970 (2011)). In making the referrals, the Council decided that authorities of the countries concerned should cooperate fully with and provide any necessary assistance to the Court and the Prosecutor and, while recognising that states not party to the Rome Statute had no obligation under the Statute, urged all states and regional and other international organisations concerned to cooperate fully.

Argentina’s concept note makes the point that without Council follow-up on the fulfilment of referrals, the referrals and the resolutions containing them may become ineffective. This is a point that Bensouda is also likely to stress.

The concept note also views the open debate as an opportunity for member states to continue to discuss the establishment of a mechanism for cooperation with the ICC, including by considering whether the Informal Working Group on International Tribunals should be tasked with dealing with issues pertaining to Court referrals or establishing a specific subsidiary body.

In terms of greater cooperation with the ICC, in recent years some Council members, for example Rwanda, have not been favourable to any language that expands the role of the ICC vis-à-vis the Council. Several Council members, including Russia and China see the Working Group on International Tribunals as an inappropriate forum for ICC briefings, as originally it was set up to cover the work of the tribunals established by the Council. Others see the working group as a convenient forum for discussions on cooperation with the Court and do not object to expanding the current scope of the working group.

Targeted Sanctions and Expanding the Mandate of the Ombudsperson
Prost in her briefing is expected to draw on her four-year experience as Ombudsperson to offer views on fair process improvements of the Council sanctions system. Council members have in past expressed differing views on the need to expand the mandate of the Ombudsperson to cover all sanctions regimes with individual listings. While some, including the group of like-minded states on targeted sanctions–which includes Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland—favour extending the mandate and safeguards of the Ombudsperson to the other sanctions regimes, others believe the expansion of the mandate to all sanctions regimes is unnecessary (as not all lists produce due process concerns) and may be counterproductive as it will likely create insurmountable demands on the existing resources. In addition there are members who in the past have indicated that the Ombudsperson has pushed the limits of her mandate and are not likely to want to see this position replicated in other sanctions regimes.

In the past, the implementation of Council-imposed sanctions, in particular the Al-Qaida/Taliban sanctions regime, had been heavily criticised for cases of mistaken identity, stripping people of their freedom of movement their assets and social benefits, at times based on little or wrong information and with no possibility to challenge the measures. Legal challenges of the Al-Qaida sanctions regime in domestic and regional courts created pressure on the Council for improvements in terms of due process. This eventually prompted the adoption of resolution 1904 (17 December 2009), which established the Office of the Ombudsperson for the Al-Qaida sanctions regime. (The Ombudsperson is tasked with receiving and processing de-listing requests from listed individuals and entities and to make recommendations on retaining a listing or de-listing. De-listings for other sanctions committees take place through a “focal point” within the Secretariat that receives delisting requests from petitioners. As a result of this procedure–currently applicable to all sanctions regimes except the Al-Qaida sanctions regime—if any sanctions committee member recommends a delisting, it would be put on the agenda for consideration and would require a decision by consensus for a delisting to take place.)

Other issues that may be raised by participants relate to notes issued by the president of the Council during the last year. A 14 April note encouraged wider participation of Council members in drafting Council documents and asserted that any member of the Council could be a penholder (S/2014/368). This was followed on 5 June by a note on the appointment of chairpersons on subsidiary bodies (S/2014/393). These two matters are particularly topical given the election of the five new members last week. As a result filling the chairperson posts vacated by the members who are leaving at the end of the year, as well as specific interests in penholder or co-penholder positions on the part of the incoming members will likely be on many minds. The chairs of the subsidiary bodies have in recent years been appointed by the P5, following informal, usually bilateral, consultations with the non-permanent members. This system has been criticised on numerous occasions and the Working Group on Documentation and Other Procedural Questions has taken up the matter. The note by the president of the Council issued last June lays down a consultative and earlier appointment process and sets out steps to be taken to ensure an efficient handover between the outgoing and incoming chairs. There may be calls to apply these recent understandings to the upcoming process of the annual appointment of these chairs as well as for a more inclusive system of penholders.

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