Fairness in Sanctions?

The United Nations is seeking an “eminent individual” for the difficult if not impossible task of bringing fairness to the UN Security Council’s Al Qaeda and Taliban targeted sanctions regime.

The effort is praiseworthy, albeit long overdue. (The Security Council only began to get serious about reforming the targeted sanctions process, which lacks minimum guarantees of transparency and due process, after a series of court challenges to the process.)

Known as the UN 1267 list for the Security Council resolution that originally established it, the consolidated list of persons and entities allegedly associated with al Qaeda or the Taliban is long. One reason for its length is that the delisting process is deeply flawed. Most famously, even people like Shamil Basayev and Noordin Top have yet to be removed: men who are not only known terrorists, but are known to be dead.

As the UN Security Council acknowledged in a 2008 report, “It is far easier for a nation to place an individual or entity on the list than to take them off.” The listed persons themselves have little power to affect the process. Some persons affected by the UN sanctions, which include a mandatory asset freeze, travel ban, and arms embargo, have spent years in litigation struggling to prove their innocence.

Both the listing and delisting processes deny their targets a fair opportunity to contest the evidence against them. The Security Council took baby steps toward addressing this fairness deficit in a series of resolutions adopted in 2006 and 2008, and made a more meaningful move in the direction of reform by passing Resolution 1904 in December 2009.

Resolution 1904 introduces a series of changes, but its most important innovation is the creation of an Ombudsperson’s Office to be staffed by the eminent person mentioned above. Assuming the right person is chosen to fill the position, the Ombudsperson could play an important role in pressing the sanctions committee to make more informed and fairer decisions.

Yet given the limitations on the new office–including its lack of real decisionmaking power–the reform still falls far short of what is necessary.

Osama bin Laden and Josef K

In a ruling issued last year, a Canadian federal court described the problem in stark terms. Under the 1267 sanctions regime, the court explained, listed persons face a situation “not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.”

What the court was referring to was the fact that listed persons have no prior notice of their listing (and so no opportunity to prevent the listing from taking place), no opportunity to review the evidence against them, no right to a hearing, and no right to judicial review of the sanctions committee’s listing or delisting decisions. At all stages of the process, the choice to list or delist a person is entirely within the discretion of the 1267 sanctions committee, a political body made up of UN Security Council members.

While some listed persons have been convicted of terrorism or other crimes, most have not. According to the sanctions committee’s guidelines, a criminal charge or conviction is not a pre-requisite to listing.

A range of courts, including the European Court of Justice and the UK Supreme Court, have condemned the unfairness of the UN sanctions process, striking down domestic measures meant to implement the sanctions. In the Abdelrasik case, decided in June 2009, a Canadian court joined the swelling chorus of demands for 1267 reform. Assessing the impact of these sanctions on Canadian citizen who was listed in 2006, the court found that the sanctions breeched the man’s rights under the Canadian Charter of Rights and Freedoms.

The Canadian judge’s views were unambiguous: “I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.”

High Moral Character, Impartiality and Integrity–But Little Real Power

Resolution 1904 represented an effort by the Security Council to respond to decisions like Abdelrasik. “Taking note of challenges, both legal and otherwise, to the measures implemented by Member States under [the 1267 sanctions regime],” the Council introduced a series of reforms, the most important of which is the Ombudsperson.

The main task of the Ombudsperson is to carry out independent and impartial investigations into delisting requests. This is a necessary change. Unfortunately the Ombudsperson’s powers are extremely limited. Not only does the Ombudsperson have no authority to limit the sanctions committee’s decisions, it does not even have formal power to recommend to the committee how to decide any given request.

Amnesty International, in a written statement responding to the resolution, called the changes “welcome but insufficient.”

According to the text of the resolution, the Ombudsperson should be “an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions.” The UN has since circulated an information note requesting interested and qualified applications to submit their CVs.

Apply now.

JOANNE MARINER is a human rights lawyer living in New York and Paris.



JOANNE MARINER is a human rights lawyer living in New York and Paris.