Will the Appointment of an Ombudsperson Improve the Due Process Standards of the Heavily Criticised UN Terrorist Listing and De-listing Procedure?

On 7 June 2010, the UN Security Council announced and welcomed the appointment of Judge Kimberly Prost to serve as ombudsperson pursuant to Security Council resolution 1904 of December 2009. The ombudsperson is supposed to function as an independent and impartial advisor to the 1267 Security Council Sanction Committee, responsible for the listing and de-listing of persons and entities subject to the Council’s relevant sanctions measures against Al-Qaeda and the Taliban. Those who seek removal from the Committee’s so-called Consolidated List can now submit their requests to the Ombudsperson.

The appointment is an important step towards improving the listing tool of the Security Council, but will it be enough to repair the illegality and illegitimacy of the current system? The conclusion that the current sanction system can be qualified as illegal (i.e. not adopted in accordance with the powers of the UN Security Council) and illegitimate results in low effectiveness of the measure, demonstrated by the numerous court cases challenging the legality of the measures. In addition to these court cases, the listing instrument has also been criticised by numerous member states, academics and in the independent reports by the Watson Institute on the request of the Swiss, German and Swedish governments, by Bardo Fassbender on the request of the UN Office of Legal Affairs, and reports by the UN High Commissioner for Human Rights, the independent expert Robert Goldman, the UN Special Rapporteur on Human Rights and Terrorism Kalliopi Koufa, and the UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism Martin Scheinin.

Especially the lack of any conditional link between the adopted measure that targets individuals and entities and the situation that has to be qualified by the Security Council as a threat to international peace and security before it can make use of its special enforcement powers, as well as the flagrant violation of fair trial principles during the listing and de-listing procedures, undermine the credibility of this UN tool. The Sanction Committee, responsible for decisions on listing and de-listing request, is after all a political body; it is not an independent and impartial organ, which would normally decide on measures that target individuals. This practice will remain the same after the Ombudsperson takes office. Decisions will still be taken based on information that predominantly comes from secret services, which makes it difficult to check, can in most cases not be shared, and would probably as such not suffice as evidence in court cases. The burden of proving a person’s or entity’s innocence consequently lies with the targeted individual or entity. Any appeal on a decision made is not possible, and there is no arrangement for any financial compensation in the case that a decision is taken to de-list a person or entity.

How then will the appointment of the Ombudsperson change this instrument? This, first of all, has to do with the fact that the Office of the Ombudsperson will be able to receive de-listing requests from individuals and entities on the Consolidated List. Previously, requests for de-listing could be send to a focal point; the difference is that there is now a guarantee that within a certain time-limit the request will be examined. The Ombudsperson will be in charge of the information gathering from the designating state(s), the states of residence and nationality or incorporation, relevant United Nations bodies, and any other states deemed relevant by the Ombudsperson. The Ombudsperson may engage in a dialogue with the states on whether the requests should be granted and on any other questions related to the request. At the end of this period, the Ombudsperson shall draft a Comprehensive Report with the Ombudsperson’s observations and the principal findings concerning the request and forward this to the Sanction Committee.

The Ombudsperson will not decide on its own authority whether the request for de-listing should be granted; this is the responsibility of the Committee. If the Committee decides to reject the request, it shall provide the Ombudsperson with explanatory comments, any further relevant information about the Committee’s decision, and an updated narrative summary of the reasons for listing. The Ombudsperson shall communicate any decision to the petitioners. Clearly, this amendment to the procedure of listing and de-listing influences the analysis of the legality and the legitimacy of the 1267 regime. After all, one of the main criticisms has always been the lack of due process guarantees for the individuals and entities placed on the Consolidated List. Obviously, the establishment of an Ombudsperson intends to remedy some of the shortcomings in the procedural guarantees. Whether the establishment of the Ombudsperson will fully rectify these shortcomings can be disputed. Although the Ombudsperson will be an independent and impartial expert, who will provide a reasoned recommendation to the Sanctions Committee, this person will not have the authority to actually decide on the de-listing request. This decision will still be made by the Sanctions Committee, which is a political body. Nevertheless, the fact that the Sanctions Committee will have to provide adequate reasons for any denial of the request may function as a check against arbitrariness.

Although the petitioner will be engaged in a dialogue in relation to the de-listing request through the intervention of the Ombudsperson, this arrangement does not qualify as a procedure that guarantees the equality of arms principle. The new procedure, moreover, makes no arrangement for monetary compensation after a request for de-listing has been granted.

This recent development is definitely a step in the right direction. It is nevertheless important to continue the efforts to further revise the procedure, since there are still several problems to solve. Meanwhile, it would be laudable if the Sanctions Committee would allow full disclosure of the Ombudsperson’s recommendation in order to increase the transparency of the procedure.