Jump to ContentJump to Main Navigation
The Power of ProcessThe Value of Due Process in Security Council Sanctions Decision-Making$

Devika Hovell

Print publication date: 2016

Print ISBN-13: 9780198717676

Published to Oxford Scholarship Online: March 2016

DOI: 10.1093/acprof:oso/9780198717676.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy).date: 22 August 2017

The Case for Procedural Reform

The Case for Procedural Reform

Due Process as Court Process

Chapter:
(p.9) 2 The Case for Procedural Reform
Source:
The Power of Process
Author(s):

Devika Hovell

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198717676.003.0002

Abstract and Keywords

Chapter 2 tracks the history of procedural reform in the Security Council sanctions context. It examines the gradual evolution of procedural standards in the UN sanctions regime, with particular attention to the development of listing, notification, reason-giving, and de-listing procedures. While important steps have been taken to improve the procedural framework accompanying sanctions decision-making, widespread dissatisfaction remains. The central focus of the reform debate has been on the choice of forum through which individuals might challenge sanctions decision-making and seek de-listing. This chapter examines the three competing procedural frameworks that have emerged in the reform debate: (1) an ‘international adjudicatory framework’ where a centralized judicial organ would review sanctions decision-making; (2) a ‘pluralist adjudicatory framework’, where domestic courts assume jurisdiction to review sanctions decision-making (‘pluralist adjudicatory framework’); (3) a ‘non-judicial Ombudsperson framework’ established by the Security Council in 2009.

Keywords:   procedural history, listing, notification, reasons, de-listing, Ombudsperson, domestic courts

For over a decade, groups of states, scholars, committees, and courts have engaged in protracted criticism of the due process deficiencies in the implementation of targeted sanctions. The criticism has understandably resulted in a number of proposals for procedural reform. Early recognition of the need for procedural reform appeared in a series of multilateral reform initiatives,1 which were followed up by other influential academic reports2 and academic publications.3 The sanctions regime has also been the subject (p.10) of critical comment by the General Assembly,4 the UN Secretary General,5 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,6 and the UN Human Rights Committee.7 In addition, since the commencement of the sanctions regime, over 30 challenges have been lodged by individuals and entities in national and regional courts, including the European Court of Justice, the European Court of Human Rights, the Human Rights Committee, and domestic courts in Belgium, Canada, Italy, the Netherlands, Pakistan, Switzerland, Turkey, the United Kingdom, and the United States.8 Certain courts have become increasingly sympathetic to claims regarding the procedural deficiencies of the Security Council sanctions regime, culminating in the European Court of Justice declaring the regulation implementing the relevant Security Council resolution into EU law to be invalid in the famous Kadi litigation.9 Other courts have followed suit.10

The focus of the contemporary debate is on the difficulty of the individual to challenge his or her listing.11 As the Watson Institute reported in 2009, (p.11) ‘[t]‌he rights to a fair trial and effective remedy lie at the heart of the debate on targeted sanctions violating individuals’ human rights’.12 In recent years, the debate has reached something of a stalemate between those pressing for reform to include a judicial (or quasi-judicial) review mechanism, and the Council’s refusal to entertain such a prospect. Instead, the Security Council in 2009 created an Office of the UN Ombudsperson to hear individual challenges to sanctions listings. Faced with a stand-off between the Council and those asserting that the UN Ombudsperson does not meet due process standards, domestic courts have stepped into the breach, and have started assuming jurisdiction over challenges by individuals to sanctions decision-making. It is therefore possible to discern three structural frameworks around which debate about the structure of due process in sanctions decision-making currently revolves: (1) pressure for an international court-based mechanism; (2) the ad hoc practice of domestic court review; and (3) the Office of the UN Ombudsperson created by the Security Council. In this chapter, I provide a brief overview of the history of the evolution of a procedural framework for sanctions decision-making about individuals. I turn then to examine the focus of the contemporary debate on review mechanisms in sanctions decision-making, including the three emerging dominant structural frameworks for procedural reform.

A. Procedural History: Evolution of Listing, Notification, and De-listing Procedures

In the late 1990s, concern about the devastating humanitarian impact of blanket sanctions against states led to a strategic shift in policy by the Security Council.13 Perhaps most infamously in the case of the sanctions regime against Iraq,14 the impact of traditional sanctions had been felt—not by the targeted governments, but by their innocent and often oppressed civilian (p.12) populations.15 Beginning with the sanctions regime against the UNITA rebel movement in Angola, established in 1997, the Security Council decided to start targeting sanctions measures against relevant individuals, entities, and products, rather than in blanket fashion against states.16 The traditional approach of imposing sanctions against states was replaced thereafter by the creation of a list (or perhaps more appropriately a blacklist) of individuals against which specific sanctions measures were imposed by Security Council resolutions. While there are currently sixteen targeted sanctions regimes in place,17 I will focus in this overview on the listing, notification, and de-listing procedures developed under the regime that many consider to be the ‘flagship’ of the Council’s sanctions practice (although it is in many ways atypical),18 the Al Qaeda regime established by Security Council resolution 1267 (1999) (‘the 1267 regime’).19

The aim of the shift to targeted sanctions was to minimize harm against innocent civilian populations. However, perhaps because the transformation was motivated by a policy shift focused on outcomes, rather than a conscious institutional shift in decision-making focused on process, the transformation was not accompanied by any procedural reform to protect the rights of those included on sanctions blacklists. It is interesting to compare the assumption of direct decision-making authority over individuals in the sanctions context with the other major example in which this occurred, namely the Security Council’s assumption of international criminal jurisdiction over individuals (p.13) with the establishment of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. The contrast between the procedural initiatives accompanying the establishment of the sanctions regime, on the one hand, and the ad hoc tribunals, on the other, is striking. The UN Office of Legal Affairs and the UN International Law Commission, among other legal entities, were heavily involved in advising the Security Council over the legal and procedural framework for the Yugoslav and Rwanda Tribunals, and their establishment was accompanied by detailed rules of procedure and evidence.20 By comparison, the targeted sanctions regime was established without reference to legal counsel at all.21 When a member state suggested that the UN Office of Legal Counsel should be consulted, it was told that there were no legal issues involved in the listing or delisting of individuals on sanctions blacklists.22 Though it is tempting to distinguish the international criminal tribunals in terms of their more burdensome impact on individuals, the consequence of being listed for an individual has been described as a form of ‘civic death’, and includes measures as serious as the comprehensive freezing of an individual’s assets around the globe, and the denial of international travel, visas, and educational opportunities for the blacklisted individual and their families.23

Paradoxically, a shift in policy engineered to inject greater fairness into the sanctions regime has subsequently given rise to nearly two decades of debate about the lack of due process in sanctions decision-making.24 In procedural (p.14) terms, the tale of the UN sanctions regime has been one of slow progress. For example, though the 1267 sanctions regime was established in 1999, it was not until 2002 that the 1267 Committee adopted guidelines for the conduct of its work. It was not until 2006 that the question as to how to address the fairness of the sanctions regime was said to have reached ‘the top of the 1267 Committee’s agenda’.25 It was not until 2012 that the Monitoring Team was able to report, ‘[t]‌his is the first report of the Team in several years in which due process considerations have not taken centre stage’.26 Though the Committee’s Guidelines have been amended several times in response to continued pressure, there is still a sense that the procedural framework is woefully deficient, particularly in terms of listing, notification, reason-giving, and de-listing procedures.

(1) Listing Procedures

The Al Qaeda sanctions regime was established by UN Security Council resolution 1267 (1999) and subsequently modified and strengthened by resolutions 1333 (2000), 1390 (2002), 1526 (2004), 1617 (2006), 1735 (2006), 1822 (2008), 1904 (2009), 1989 (2011), 2083 (2012) and 2161 (2014). As described above, its primary focus is a list of individuals (the ‘sanctions list’) against which specific sanctions measures are imposed, including an assets freeze, travel ban, and arms embargo.27 During the initial establishment of the 1267 regime, the creation of the list was self-confessedly based largely on ‘political trust’, with the 1267 Committee essentially rubber-stamping names submitted by member states.28 Responsibility for listing lies clearly with members of the 1267 Committee; however, in practice there is little or no independent (p.15) evaluation of the evidence by the Committee.29 Decisions are generally made on the papers according to a no-objection procedure, whereby a proposed name will be added to the list if no Committee Member objects to the listing within ten working days (it was initially restricted to five working days, though the period for consideration can still be shortened at the Committee Chair’s discretion for emergency and time-sensitive listings).30 While Committee members do not often object to the inclusion of names on the sanctions lists, states sometimes request for a hold to be placed on names, some of which have been maintained for years.31 The United States has defended the limited reflection given to listing decisions by the Committee on the ground that it places every designation proposal through its domestic channels. However, this is self-confessedly not to check the adequacy of the evidentiary foundations for the listing, but rather to weigh intelligence equities into the balance to ensure that US security interests are not compromised by proposed listings.32

The arbitrariness of the listings stems largely from the fact that there is no real evidentiary burden that proposals must meet. For over five years, the only criteria for listing an individual, group, or entity was on the basis of an ‘association with’ Osama Bin Laden, Al Qaeda, or the Taliban. In the post-September 11 climate in 2001 and 2002, the US Office of Foreign Assets Control (the body responsible for the majority, if not all, early designations on the sanctions list)33 is said to have been marked by ‘chaos’ and a ‘rush to designate’.34 An official in the US Treasury Department passed comment that ‘we were so forward leaning we almost fell on our face’, an express recognition that some of the evidentiary foundations for initial designations were extremely weak.35 Faced with calls for more detailed criteria, the Chairman (p.16) of the Sanctions Committee, Ambassador Alfonso Valdivieso of Colombia, responded, ‘[w]‌e are dealing with terrorism … It may be controversial, but all who have suggested alternatives are aware that we must not waste time on definitions, because the terrorists are acting’.36

The listing criteria were particularized more fully by the Security Council in 2005, but the effort to narrow the categories was undermined somewhat by the inclusion of a ‘catch-all’ provision extending the criteria to anyone ‘otherwise supporting an affiliate’ of Al Qaeda, Osama bin Laden, or the Taliban.37 Designation requests have not as a rule been refused by the 1267 Committee on the basis of insufficient information. At the beginning of 2008, seventy-seven individuals lacked even the four basic identifiers considered necessary to allow effective implementation of the sanctions measures (that is, full name, date of birth, place of birth, and nationality).38 The result of the overall approach has been to give ‘an almost unlimited latitude of discretionary powers’ to member states,39 resulting in early listings being described by the Coordinator of the UN Al Qaeda and Taliban Monitoring Team as no more scientific than a ‘back of an envelope thing’.40 In 2012, the Monitoring Team recommended that the Committee provide further guidance on its criteria for listing beyond association, on the basis that this would not only be helpful guidance for submitting states, but would also help those listed understand what they had to do to be de-listed.41

The listing of individuals routinely takes place without providing those listed with the right to a hearing. States have complained that they have (p.17) limited influence over the decisions of the Committee, and states of residence and nationality have frequently complained that the Committee has added a name without consulting them, even though they are the ones most likely to know about the case.42 Member states of the Security Council have defended the denial of the right to a hearing on grounds of the necessity of maintaining the confidentiality of the information upon which listings are based. They argue that the right of an individual to receive an oral hearing or to respond to the veracity and relevance of the underlying evidence must be denied on the basis that ‘[t]‌hose facts and that evidence, once classified as confidential or secret by the State which made the Sanctions Committee aware of them, are not, obviously, communicated to [the individual], any more than they are to the Member States of the United Nations to which the Security Council’s resolutions are addressed’.43

(2) Notification Procedures

For almost a decade, there was no requirement for the Committee or member states to notify designated individuals or entities about their inclusion on the list, nor to provide them with reasons for the listing. The initial policy of non-notification was explained quite bluntly by one member of the Permanent Five: ‘we don’t notify terrorists; we kill them’.44 Yet the policy has also been justified on the more defensible ground that it is necessary to maintain an element of surprise in listings in order to prevent the flight of individuals and assets, and the destruction of documents.45 Provision has subsequently been made for retrospective notification of listings. In 2004, a voluntary request to notify individuals and entities of their listing was included in Security Council resolution 1526 (2004). Mandatory notification requirements were not introduced until 2008 with the passage of Security Council resolution 1822 (2008). This resolution provides that, in relation to future listings, the Secretariat must notify the state of nationality and residence of (p.18) listed individuals or entities within one week of the listing. Such member states must ‘take all possible measures to notify or inform in a timely manner, the listed individual or entity of the designation and to include with this notification a copy of the publicly releasable portion of the statement of case’. The Committee itself only assumed a direct obligation to notify individuals in December 2009.46

(3) Reasons for Listing

States and other bodies continue to complain that listed parties have little opportunity to learn why they have been added to the list.47 Denial of a right to receive a statement of reasons for placement on sanctions blacklists was initially justified by ‘the need to protect secret intelligence material and sources, from which the names are usually derived, and by the desire to include suspected bad actors on the list as soon as possible’.48 It was not until 2005 that the Security Council required states to provide a statement of case describing the basis of any listing proposal.49 In 2006 and 2012, the Council provided further particulars, noting that the statement of case ‘should provide as much detail as possible on the basis(es) for the listing, including: (i) specific findings demonstrating the association or activities alleged; (ii) the nature of the information [eg intelligence, law enforcement, judicial, media, admissions by subject, etc]; and (iii) supporting evidence or documents that can be supplied’. The failure to use mandatory language demonstrates that, though highly desirable, the information is not required for the purposes of listing.50 In 2006, states were requested to identify what portions of the statement of case could be publicly released for the purpose of notifying the individual or entity subject to the listing, which strengthened into a requirement in 2008.51 Notably, none of these obligations were retrospective. Indeed, by 2008, most of the entries on the list still did not state the reason for their inclusion, with (p.19) over 400 names on the list lacking a full statement of case.52 The list at that time was described by the Monitoring Team as ‘dated and increasingly in need of a thorough overhaul’.53 Sixteen individuals were known to be dead and, as described above, seventy-seven entries had fewer than four identifiers (that is, full name, date of birth, place of birth, and nationality), considered by the Team to be the minimum necessary to allow effective implementation of the sanctions measures.

In 2008, the Security Council called on the Sanctions Committee to carry out a ‘Comprehensive Review’ of the sanctions lists in order ‘to ensure the Consolidated List is as updated and accurate as possible and to confirm the listing remains appropriate’.54 This review, completed in July 2010, led to what was described as a ‘much-needed paring down and updating of the sanctions list’, including the de-listing of twenty-four individuals and twenty-one entities.55 It proposed updates to 391 of the 488 entries then on the list, including changes to 217 narrative summaries of reasons for listing.56 Narrative summaries of reasons have now been completed for all list entries, though these summaries have been criticized for containing less than obvious justification for an initial listing, let alone for its continuation.57 Even after the Comprehensive Review in 2010, the Monitoring Team reflected with regret that many of the least revealing narrative summaries remained unchanged.58

Under Security Council resolutions 1822 (2008) and 2083 (2012), the Sanctions Committee is now mandated to conduct an annual review of those listings that have not been the subject of examination within a period of three or more years. The Sanctions Committee also conducts periodic reviews of the names of individuals reported to be deceased and of entities reported to be defunct. A similar review of entries lacking identifiers necessary to ensure effective implementation was mandated under Security Council resolutions 1904 (2009) and 2083 (2012). However, as the Monitoring Team noted, the outcome of all these reviews is highly dependent on the view of the designating state.59 A recommendation by the Monitoring Team to implement (p.20) automatic de-listing where the designating state fails to argue for continued listing or provide detailed reasons for the listing was rejected by the Sanctions Committee.

(4) De-listing Procedure

The de-listing procedure has proved to be the most contentious issue affecting the UN sanctions regime, marked by a great deal of reluctance to implement reform on the part of the Permanent Five. Individuals and entities historically had no direct access to the Sanctions Committee to challenge their listings. It was initially the case that listed individuals and entities were dependent on the agreement of their state of nationality or residence to take up their case on their behalf, usually through diplomatic negotiations with the designating state. Sweden took up the case of three Swedish-Somali nationals listed in 2001, one of whom (Mr Abdirisak Aden) was an election candidate of the governing Social Democratic Party. The situation generated widespread publicity: prominent Swedes defied sanctions regulations by taking up a collection for their legal fees, and the editor of Sweden’s premier business daily gave Mr Aden a job.60 Sweden finally succeeded in negotiating their removal from the sanctions list in August 2002.61 Those individuals unfortunate to come from countries who were either unwilling or unable to take up their case, or with whom Council members were unwilling to negotiate, had no access to the Sanctions Committee. It was said of the 1267 sanctions regime in 2008 that listed individuals ‘stand even less chance of escaping this fate than they do of being released from Guantánamo Bay’.62

It is only belatedly that the Committee has introduced formal intermediaries through which individuals can petition the Committee. In December 2006, the Security Council established the ‘focal point’, an initiative that was intended to serve as a non-state-based forum to which designated individuals or entities could submit a request for de-listing.63 This development was heralded by members of the Security Council as ‘considerable progress in (p.21) terms of equity and transparency’ (France); ‘the best possible result at present’ (Denmark); and a measure brought forward ‘in the defence of human rights and in raising awareness of the need to fight terrorism from the point of view of respect for law and human rights’ (Argentina).64 However, in practice, the focal point turned out to be little more than a glorified postbox. Upon receiving a de-listing request from an individual, the focal point sent it to the designating state, the state of residence, and the state of nationality. It was only if one of those states supported the request that it was placed on the Committee’s agenda.65 Where a de-listing request was placed on the Committee’s agenda, the focal point was entitled to attend deliberations, though played no role representing the individual’s interests in the course of the decision-making. At the conclusion of the deliberations, the focal point would send a standard letter to the individual, setting out the result of their de-listing request, though not the reasons for the decision. The impact of the focal point on the due process rights of individuals was minimal. Between March 2007, when the focal point became operative, and 2009, when the Office of the UN Ombudsperson was established, the focal point received twenty-five de-listing requests relevant to the 1267 Committee (relating to eighteen individuals and twenty-two entities), leading to the removal of three individuals and seventeen entities.66 Though the focal point was originally intended to be a full-time position, the initial holder of the post spent only one third of her time on focal point issues, and was subsequently appointed to an additional position serving two sanctions committees in the Department of Political Affairs in the UN Secretariat. Growing perceptions about the inadequacy of the focal point as a procedural safeguard for individuals led the Council to establish the Office of the UN Ombudsperson in 2009. The Ombudsperson has initially been established to serve only the 1267 regime. Calls to extend the Ombudsperson to the other sanctions regime have so far been rejected.67 As the strongest (p.22) procedural measure introduced by the Security Council, it is examined in further detail later in this chapter.

B. The Contemporary Reform Agenda: A Court-Centred Conception of Procedural Justice

The evolution of listing, notification, and de-listing procedures evidences that important steps have been taken to improve the procedural framework accompanying Security Council decision-making. However, widespread dissatisfaction remains. There are continuing perceptions that the capacity of an individual to challenge his or her listing is inadequate. As discussed, the central focus of the contemporary debate has been on the choice of forum through which individuals might challenge sanctions decision-making and seek de-listing. The reform debate is currently weighted heavily in favour of a judicial or adjudicatory procedure for review of sanctions decision-making. While the structure of the body differs, the proposals are largely united in their agreement on the fact that such a tribunal would (1) have to be impartial and independent of the Security Council and (2) have the power to issue binding decisions. Those favouring an adjudicatory procedure can be divided loosely into two camps, with some favouring the adoption of an internationalized organ (reviewing sanctions decision-making under international law), and others advocating a decentralized arbitral option (under which domestic courts would assume jurisdiction to review sanctions decision-making under domestic law). Against the tide of the broader debate, the Security Council has established the Office of the UN Ombudsperson, a non-judicial alternative for the protection of the rights of individuals affected by sanctions decision-making. The contemporary debate can therefore be seen as divided between three competing procedural frameworks through which individuals might challenge sanctions decisions: (1) an internationalized judicial procedure; (2) a pluralist domestic-court-based judicial procedure; and (3) the non-adjudicatory Ombudsperson procedure.

(1) Internationalized Judicial Framework

The majority of reform proposals continue to push for a centralized arbitral body to be established within the UN with the power to compel de-listing (p.23) through the issuing of binding decisions. Proponents of such a framework include academics,68 courts,69 and even one state legislature.70

Representative of the academic viewpoint is Bardo Fassbender’s report, which concludes that an essential element of any procedural framework is ‘the right of [a listed] person or entity to an effective remedy against an individual measure before an impartial institution or body previously established’.71 While he does not specifically require the arbitral institution to be a judicial body, he states clearly his view that the remedy would not be ‘effective’ unless the relevant body had the power to issue binding decisions.72 Both the UN High Commissioner for Human Rights73 and the UN Special Rapporteur on (p.24) human rights and counter-terrorism74 have determined that the 1267 sanctions regime falls short of internationally recognized standards of due process because there is no recourse to independent judicial or quasi-judicial review either of a decision to list or denial of a request to de-list. The International Commission of Jurists has also advocated the ‘introduction of a genuinely independent judicial or quasi-judicial complaint mechanism’ into the UN sanctions regime.75

Those domestic and regional courts that have upheld challenges to the sanctions regime have largely done so on account of the absence of a judicial review mechanism. In Kadi II, the CJEU held that ‘the improvements’ (of which the Ombudsperson procedure was the most notable) do not provide the listed person with ‘the guarantee of effective judicial procedure’,76 affirming views expressed by the European Court of Human Rights and the EU General Court that the Ombudsperson ‘cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee’.77 The UK Supreme Court also explicitly considered whether the establishment of the Ombudsperson’s office remedied due process concerns, but held that ‘[w]‌hile these improvements are to be welcomed, the fact remains that there was not when the designations were made, and still is not, any effective judicial remedy’.78 Some domestic and regional courts have themselves purported to provide a form of judicial review, informally instating themselves as ‘agents’ of the international community and assessing the legality of sanctions decision-making under international law.79 For example, in Kadi, the Court of First Instance assumed a power to review the validity of the Council’s decision to list Mr Kadi under international law. This case (p.25) is an interesting concrete example by which to assess the feasibility of an international court-based solution, and will be examined in further details in future chapters.

For the sake of completeness, it should be noted that courts have not been the only domestic organs to emphasize the need for a court-based process in sanctions decision-making. In March 2010, the Swiss Parliament adopted a motion declaring that it intended to refuse to apply sanctions to any targeted individual who had not been given judicial access after three years, was unable to appeal his or her listing before a judicial body, and had not had any further accusations made against him or her.80

(2) Pluralist Judicial Framework

The alternative proposal is for a decentralized court-based procedure under which domestic courts would exercise judicial review over sanctions decision-making under domestic law. A number of academics have made such a proposal.81 However, support for such a framework has also emerged more organically, with a number of domestic courts agreeing to hear challenges from individuals caught up in the sanctions net. In the face of continued reluctance on the part of the Security Council to institute what is considered ‘adequate’ reform, these courts have become increasingly sympathetic to claims from individuals regarding the procedural deficiencies of the Security Council sanctions regime.

Two examples will be used to illustrate this trend. The European Court of Justice (ECJ) took a different approach from the Court of First Instance in the Kadi litigation discussed above, assuming jurisdiction to engage in full review of the legality of Community acts under European (p.26) law, regardless of the origin of those acts in a Security Council resolution. The ECJ in Kadi thereby recognized its power to review the regulation implementing UN sanctions into European law for consistency with the fundamental rights of the European legal order. I refer to the European Courts as ‘domestic’ courts in this book because they position themselves in the Kadi litigation as courts of a ‘quasi-domestic’ legal order autonomous from the international legal order.82 The approach of the ECJ was subsequently followed by the General Court (formerly the Court of First Instance) and the CJEU in Kadi II.83 In HM Treasury v Ahmed, a majority of the UK Supreme Court similarly recognized that UK courts were entitled to engage in judicial scrutiny of Security Council actions as to whether they were incompatible with the basic premises of the UK legal order.84 These cases shall be returned to in subsequent chapters as valuable test cases for the capacity of domestic courts to enhance the legitimacy of Security Council decision-making by engaging in review of Council decisions against domestic legal standards.

(3) International Non-Judicial Framework

The call to incorporate judicial review into UN sanctions decision-making has so far gone unheeded by the Security Council. The five Permanent Members of the Security Council remain staunchly opposed to any form of judicial or independent oversight on the basis that their own submissions have been carefully checked and reviewed by their respective governments.85 The underlying issue is the reluctance on the part of these governments to allow foreign nationals, however well qualified, access to their secret information and confidential sources, particularly if this entails examination of the likely veracity of these sources.86 One US official has indicated that the (p.27) United States would stop submitting names to the Council in the event that full review was instituted.87

While the Council has remained impervious to calls for a judicial or quasi- judicial procedure, it continues nevertheless to respond to criticism of the UN sanctions regime. In December 2009, the Security Council adopted resolution 1904 (2009), establishing the Office of the Ombudsperson. The first office-holder, Judge Kimberly Prost, assumed the position on 3 June 2010.88 Given the reluctance of the Security Council to institute procedural reform, the creation of the office was described as a ‘miracle’, though was also recognized as ‘crucial to the survival’ of the targeted sanctions regime.89 The development was self-confessedly a response to the ‘challenges, both legal and otherwise, to the measures implemented by Member States’.90 Resolution 1904 and its annexes are directed at ‘improving the gathering of relevant information pertaining to listings, expanding the flow of information between the Sanctions Committee and listed persons and entities, and ensuring that requests for delisting are more fully considered by the Sanctions Committee’.91

The Ombudsperson is not an adjudicatory process, but instead fulfils something of a fact-finding or inquisitorial role. Upon receiving a de-listing request, the Ombudsperson engages in a four-month period of information gathering (extendable for a further two months if necessary), during which she transmits the delisting request to relevant parties including the Committee, the designating state, and the state of nationality, seeking any additional information relevant to the request. In addition, the request is forwarded to the Monitoring Team, which is required to assemble a portfolio of relevant information drawn from court decisions, news reports, and fact-based assessments of the information provided by the petitioner. The Ombudsperson then engages in a two-month period of engagement, which may include a dialogue with the petitioner, to gain any additional information that may help the Committee with its decision. At the end of this process, the (p.28) Ombudsperson prepares a comprehensive report outlining the information she has obtained, and laying out the principal arguments concerning the delisting request. The Committee has thirty days to consider this report. The report is to be presented in person to the Committee, during which the Ombudsperson can answer any questions the Committee members may have regarding the request. If the Ombudsperson recommends de-listing, the individual or entity will be removed from the list unless, within sixty days, the Committee decides by consensus to maintain the listing. Under procedures introduced in resolutions 2083 (2012) and 2161 (2014), the Committee is now required to provide reasons for rejecting the request and provide an updated narrative summary of reasons for listing for the Ombudsperson to transmit to the petitioner within sixty days. The Ombudsperson must send the petitioner a letter within fifteen days communicating the Committee’s decision, the reasons for its decision, and describing to the extent possible the process and publicly releasable factual information gathered by the Ombudsperson.

Under the first office-holder, the Ombudsperson procedure has produced results. The Ombudsperson has received fifty-five cases (of which forty-six have been concluded), leading to the de-listing of thirty-four individuals and twenty-seven entities. Three individuals were de-listed prior to the conclusion of the Ombudsperson process, though resort to the Ombudsperson process was a trigger for their de-listing. During this time, the de-listing of six individuals has been denied, though Ms Prost believes that in each of these cases, the individual received a fair process.92 Though initially appointed for an eighteen-month period, Ms Prost’s term has been renewed twice, most recently in January 2013 for a period of thirty months. Her term of office concludes in July 2015.

While the Ombudsperson procedure has received strands of support in the reform debate,93 the assessment of the Office from a due process perspective has been mainly critical.94 The main concern is that the Ombudsperson is (p.29) ‘not a court’, which seems to be short-hand for the dual criticism that the Ombudsperson is not sufficiently independent of the Security Council, and that it has no power to bind the Sanctions Committee. The Chair of the 1267 Committee acknowledged in August 2010 that de-listing decisions remain ‘a political decision based on a political process’.95 The CJEU held in Kadi II that ‘the improvements’ (of which the Ombudsperson procedure was the most notable) do not provide the listed person with ‘the guarantee of effective judicial procedure’,96 affirming views expressed by the European Court of Human Rights and the EU General Court that the Ombudsperson ‘cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee’.97 The UK Supreme Court in Ahmed found that, while the establishment of the Office of the Ombudsperson was to be welcomed, ‘the fact remains that there … still is not any effective judicial remedy’.98 In September 2012, Ben Emmerson, the Special Rapporteur on the protection of fundamental rights while countering terrorism, condemned the targeted sanctions regime as a ‘ready means by which individual States can make executive decisions with far-reaching consequences, apparently unconstrained by domestic judicial review, or the international human rights treaties by which they are bound’.99 It is clear that the perception in many quarters is that the procedural framework for sanctions decision-making remains deficient because of its non-judicial nature.

(p.30) C. Conclusion

Over a decade after the 1267 regime was established, the Security Council is still mired in a debate about the need to provide greater procedural fairness to individuals in sanctions decision-making. There is presently something of a deadlock between those who consider that a court-based process is an essential pre-requisite to the legality of Security Council decision-making, and the Security Council, which remains impervious to calls for court-based reform. The Analytical Support and Sanctions Monitoring Team identified the problem in its 2008 Report:

The [Sanctions] Committee has made a series of incremental improvements to its procedures which have addressed many of the concerns expressed about the fairness of the sanctions but one major issue remains: the suggestion that listing decisions by the Committee be subject to review by an independent panel. It is difficult to imagine that the Security Council could accept any review panel that appeared to erode its absolute authority to take action on matters affecting international peace and security, as enshrined in the Charter.100

My book takes the starting point that the problem is predominantly one of methodology. Reform proposals have relied chiefly on international law source methodology in defence of their insistence that procedural fairness requires a system of judicial or quasi-judicial review. Not only has this methodology failed to persuade the Security Council of the need for reform, it has also resulted in a distorted understanding of the concept of procedural fairness as it applies to the Security Council sanctions context. In the next chapter, I consider the methodology underlying the relevant reform proposals, and the myths and misconceptions about procedural fairness that have emerged in the international setting on account of this methodology.

Notes:

(1) [Interlaken process] Swiss Federal Office for Foreign Economic Affairs, ‘Expert Seminar on Targeting UN Financial Sanctions’ (Interlaken, 17–19 March 1998), 71; Swiss Federal Office for Federal Economic Affairs, ‘Second UN Seminar on Targeting United Nations Financial Sanctions’ (Interlaken, 29–31 March 1999), 211; [Bonn-Berlin process] Bonn International Centre for Conversion, ‘Results of the Bonn-Berlin Process: Design and Implementation of Arms Embargoes and Travel and Aviation-Related Sanctions’ (Bonn, 2001), 109; [Stockholm Process] Peter Wallensteen et al, ‘Making Targeted Sanctions Effective: Results from the Stockholm Process on the Implementation of Targeted Sanctions’ in Results from the Stockholm Process on the Implementation of Targeted Sanctions (Uppsala University, 2003), §43, §64.

(2) Thomas Biersteker and Sue Eckert, Strengthening Targeted Sanctions through Fair and Clear Procedures (Watson Institute Targeted Sanctions Project, Brown University 2006); Iain Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-terrorism Sanctions (Committee of Legal Advisers on Public International Law 2006); Bardo Fassbender, Targeted Sanctions and Due Process (Council of Europe Committee of Legal Advisors on International Law 2006); International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (2009); George Lopez et al, Overdue Process: Protecting Human Rights while Sanctioning Alleged Terrorists (Fourth Freedom Forum, Kroc Institute for International Peace Studies, University of Notre Dame 2009); Thomas Biersteker and Sue Eckert, Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (Watson Institute for International Studies 2009).

(3) Recent books and articles include: Ali Z Marossi and Marisa R Bassett (eds), Economic Sanctions Under International Law: Unilateralism, Multilateralism, Legitimacy, and Consequences (TMC Asser Press 2015); Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (Oxford University Press 2011); Guglielmo Verdirame, The UN and Human Rights: Who Guards the Guardians? (Cambridge University Press 2011); Lisa Ginsborg and Martin Scheinin, ‘You Can’t Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime’ (2011) 8 Essex Human Rights Review 7; Grant L Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown Journal of International Law 673; Jared Genser and Kate Barth, ‘When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform’ (2010) 33 Boston College International and Comparative Law Review 1; Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads’ (2010) 42 George Washington International Law Review 217.

(4) The World Summit Outcome document called upon the Security Council ‘to improve its monitoring of the implementation and effects of sanctions, to ensure that sanctions are implemented in an accountable manner’ and ‘to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them’: UN General Assembly Resolution 60(1) (24 October 2005) UN Doc A/RES/60/1.

(5) ‘Non-paper of the Secretary General’ referred to in debate on ‘Strengthening International Law: Rule of Law and Maintenance of Peace and Security’ (22 June 2006) UN Doc S/PV.5474.

(6) Martin Scheinin, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism’ (16 August 2006) UN Doc A/61/267.

(7) UN Human Rights Committee, Sayadi and Vinck v Belgium (Communication No 1472/2006, 29 December 2008) UN Doc CCPR/C/94/D/1472/2006.

(8) ‘Ninth report of the 1267 Monitoring Team’ (13 May 2009) UN Doc S/2009/245, Annex 1; ‘Eleventh Report of the 1267 Monitoring Team’ (13 April 2011) UN Doc S/2011/245, Annex 1.

(9) Joined Cases C-402/05 P and C-415/05 P Kadi v Council of the European Union [2008] ECR I-0000.

(10) Her Majesty’s Treasury v Ahmed [2010] UKSC 2 (UK Supreme Court); Abousfian Abdelrazik v Minister of Foreign Affairs 2009 FC 580 (Federal Court of Canada).

(11) The narrow focus of the debate about procedural deficiencies in sanctions decision-making is a worthy subject of further academic exploration, though this book is necessarily responsive to the current debate. For criticism of the narrowness of the debate, see Annalisa Ciampi, ‘Security Council Targeted Sanctions and Human Rights’ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (Oxford University Press 2011), 98–140; Larissa Van den Herik, ‘Peripheral Hegemony in the Quest to Ensure Security Council Accountability for its Individualized UN Sanctions Regimes’ (2014) 19(3) Journal of Conflict and Security Law 427, 435.

(12) Thomas Biersteker and Sue Eckert, Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (Watson Institute for International Studies 2009), 10.

(13) The shift in strategy was motivated by a consensus among states on the need to adopt a ‘more prompt and effective response to present and future threats to international peace and security … designed so as to maximize the chance of inducing the target to comply with Security Council resolutions, while minimizing the negative effects of the sanctions on the civilian population’: ‘Report of the Secretary-General on the Work of the Organization’ (30 August 2000) UN Doc A/55/1, 13 para 100.

(14) Save The Children, Iraq Sanctions: Humanitarian Implications and Options for the Future (2002), ch 2.

(15) Press Release of UN Secretary General Kofi Annan, SG/SM/7625, 15 November 2000. See also Robin Geiss, ‘Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-up Assessment of Long-Term Effects’ (2005) 18 Harvard Human Rights Journal 167. See also Michael Reisman, ‘Assessing the Lawfulness of Nonmilitary Enforcement: The Case of Economic Sanctions’ (1995) 89 American Society of International Law Proceedings 350, 351.

(16) UN Security Council resolution 1127 (28 August 1997) UN Doc S/RES/1127; UN Security Council resolution 1173 (12 June 1998) UN Doc S/RES/1173. At the height of the UNITA sanctions regime, 157 individuals were subject to asset freezes and travel bans.

(17) The sixteen sanctions regimes impose sanctions against blacklisted individuals in relation to events in Somalia and Eritrea, Iraq, Liberia, the Democratic Republic of the Congo, Cote D’Ivoire, Sudan, Lebanon, North Korea, Iran, Libya, Guinea-Bissau, the Central African Republic, Yemen, South Sudan, and in the only two non-state-based regimes, against those associated with Al Qaeda and the Taliban.

(18) It is atypical because it is the only regime without a territorial connection directed predominantly at non-state actors and is presently the only sanctions regime to have access to the UN Ombudsperson.

(19) The 1267 regime was established by UN Security Council resolution 1267 (1999) and modified and strengthened by subsequent resolutions, chiefly 1333 (2000), 1390 (2002), 1526 (2004), 1617 (2006), 1735 (2006), 1822 (2008), and 1904 (2009). It was initially known as the Al Qaeda and Taliban sanctions regime, but in 2011 was divided into two separate sanctions regimes, dealing respectively with Al Qaeda and the Taliban: UN Security Council resolutions 1998 and 1999 (17 June 2011) UN Doc S/RES/1998 and UN Doc S/RES/1999.

(20) Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted in UN Security Council resolution 827 (25 May 1993) UN Doc S/RES/827; Statute of International Criminal Tribunal for Rwanda, adopted in UN Security Council resolution 955 (8 November 1994) UN Doc S/RES/955.

(21) Remarks by Hans Corell, ‘Is the Security Council Bound by Human Rights Law’ (103rd Annual Meeting of the American Society of International Law, Washington DC, 27 March 2009).

(22) Confidential communication, 24 January 2006; cited in Simon Chesterman, ‘The Spy Who Came in from the Cold War: Intelligence and International Law’ (2006) 27 Michigan Journal of International Law 1071, 1117.

(23) Individuals have spoken about being turned into ‘international pariahs’, with their reputations destroyed, and arguably placed in considerable danger because of the effect the listing process has had on immigration and asylum decisions: International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism: Counter-terrorism and Human Rights (2009), 117.

(24) Influential books and articles include Peter Gutherie, ‘Security Council Sanctions and the Protection of Individual Rights’ (2004) 60 NYU Annual Survey of American Law 491; Eric Rosand, ‘The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions’ (2004) 98 American Journal of International Law 745; Iain Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-terrorism Sanctions (Committee of Legal Advisers on Public International Law 2006); Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 European Journal of International Law 881; Larissa Van den Herik, ‘The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual’ (2007) 20 Leiden Journal of International Law 797; Jeremy Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press 2007); Michael Bothe, ‘Security Council’s Targeted Sanctions against Presumed Terrorists: The Need to Comply with Human Rights Standards’ (2008) 6 Journal of International Criminal Justice 541; Jared Genser and Kate Barth, ‘When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform’ (2010) 33 Boston College International and Comparative Law Review 1; Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads’ (2010) 42 George Washington International Law Review 217; Grant L Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown Journal of International Law 673.

(25) Fifth Report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolutions 1526 (2004) and 1617 (2005) (20 September 2006) UN Doc S/2006/750, para 2.

(26) Twelfth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc S/2012/729, 1 October 2012, pp 4, 7.

(27) Since 2006, the assets freeze also applies to the provision of Internet hosting or related services: Security Council resolution 1735 (2006).

(28) Eric Rosand, ‘The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions’ (2004) 98 American Journal of International Law 745.

(29) Iain Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-terrorism Sanctions (Committee of Legal Advisers on Public International Law 2006), 5.

(30) Al Qaeda Committee, ‘Guidelines of the Committee for the Conduct of its Work’, available at <http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf> (‘1267 Committee Guidelines’), section 6(n).

(31) This situation has been ameliorated somewhat by sections 4(d) and (f) of the 1267 Committee Guidelines, which provide respectively that no matter may be left pending for longer than nine months, and that any holds placed by a Member will cease to have effect at the time its membership of the Committee ends (although this will not, of course, apply in relation to Permanent Members).

(32) Adam Szubin (US Office of Foreign Assets Control), ‘The Terrorist Designation Process in the United States’ (Countering Terrorism through Domestic and International Targeted Sanctions Conference, American University Washington College of Law, 15 September 2008).

(33) Eric Rosand, ‘The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions’ (2004) 98 American Journal of International Law 745, 249.

(35) Ibid.

(36) ‘A Nation Challenged: Sanctions and Fallout’, New York Times, 26 January 2002, A9.

(37) UN Security Council resolution 1617 (29 July 2005) UN Doc S/RES/1617; reaffirmed in UN Security Council resolution 1904 (17 December 2009) UN Doc S/RES/1904, paras 2 and 3 and UN Security Council resolution 2083 (2012), paras 2 and 3.

(38) During the review, only one of these names was removed for lack of sufficient information, while additional information was included in relation to thirty-eight entries: ‘Report of Analytical Support and Sanctions Monitoring Team on Outcome of Comprehensive Review’ (29 September 2010) UN Doc S/2010497, paras 10, 52.

(39) Francesco Francioni, ‘The Right of Access to Justice to Challenge the Security Council’s Targeted Sanctions: After-thoughts on “Kadi” ’ in Ulrich Fastenrath, From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011), 913.

(40) Richard Barrett, ‘Fair and Clear Procedures in Sanctions Listing: An Insider Perspective’, Countering Terrorism through Domestic and International Targeted Sanctions Conference, American University Washington College of Law, 15 September 2008. It is interesting that this ‘rush to list’ was repeated in the case of the Libyan sanctions regime established pursuant to resolution 1970 (2011) in relation to which ‘Council members recall that there was little discussion of due process in deciding on the initial listings’: Security Council Report, Cross-cutting Report on the Rule of Law (2011), 44.

(41) ‘Thirteenth Report of the 1267 Monitoring Team’ (31 December 2012) UN Doc S/2012/968, para 41.

(42) ‘Report of Analytical Support and Sanctions Monitoring Team on Outcome of Comprehensive Review’ (29 September 2010) UN Doc S/2010497, para 24.

(43) Joined Cases T-306/01 and T-315/01 Kadi v Council and Commission [2005] ECR II-0000, [276].

(44) Eric Rosand, ‘Panel Discussion on UN Terrorist Designations and Sanctions: a Fair Process and Effective Regime?’ (Center for Strategic and International Studies, Washington DC, 5 June 2008).

(45) In the early years of the targeted sanctions regime, there were instances when individuals and entities designated by sanctions committees reportedly found out about their listings from non-official sources: Thomas Biersteker and Sue Eckert, Strengthening Targeted Sanctions through Fair and Clear Procedures (Watson Institute Targeted Sanctions Project, Brown University 2006), 7.

(46) UN Security Council resolution 1904 (17 December 2009) UN Doc S/RES/1904, Annex, para 15(b); 1267 Committee Guidelines, section 6(o).

(47) ‘Ninth Report of the Analytical Support and Sanctions Monitoring Team Submitted Pursuant to Resolution 1822 (2008) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities’ (13 May 2009) UN Doc S/2009/245, para 47.

(48) Eric Rosand, ‘The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions’ (2004) 98 American Journal of International Law 745, 749.

(49) UN Security Council resolution 1617 (29 July 2005) UN Doc S/RES/1617, para 4.

(50) Annalisa Ciampi, ‘Security Council Targeted Sanctions and Human Rights’ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (Oxford University Press 2011), 107.

(51) UN Security Council resolution 1735 (22 December 2006), UN Doc S/RES/1735, para 6; Security Council resolution 1822 (30 June 2008) UN Doc S/RES/1822, para 12.

(52) ‘Report of Analytical Support and Sanctions Monitoring Team on Outcome of Comprehensive Review’ (29 September 2010) UN Doc S/2010497, para 19; Security Council Report, ‘Counter-terrorism: Al Qaida and Taliban’ (Update Report No 9, 26 June 2008).

(53) ‘Report of Analytical Support and Sanctions Monitoring Team on Outcome of Comprehensive Review’ (29 September 2010) UN Doc S/2010497, para 10.

(54) Security Council resolution 1822 (30 June 2008) UN Doc S/RES/1822, para 25.

(55) ‘Report of Analytical Support and Sanctions Monitoring Team on Outcome of Comprehensive Review’ (29 September 2010) UN Doc S/2010497, para 43.

(56) Ibid.

(57) Ibid, para 57.

(58) Ibid.

(59) ‘Fourteenth Report of the Analytical Support and Sanctions Monitoring Team’ (2 August 2013) UN Doc S/2013/467, para 24.

(60) Serge Schmemann, ‘A Nation Challenged: Sanctions and Fallout’, New York Times, 26 January 2002, A9.

(61) ‘US Drops Names of 2 Swedes from Al Qaeda List at UN’, New York Times, 23 August 2002, A8.

(62) ‘UN Law: Coming up Trumps’, The Economist (31 January 2008).

(63) Some states such as France designated the focal point as the exclusive point of contact for their nationals and residents, declining to receive requests directly and requiring that all requests should go through the focal point.

(64) ‘Security Council Adopts Measures to Ensure Clear and Fair Procedures Exist for Delisting from Sanctions Committees’ (19 December 2006) UN Press Release No SC/8913.

(65) Notably, in the event of conflicting opinions, such that one of these states supports and another objects to the request, the objection takes precedence. This has happened on at least three occasions. On the first occasion conflicting opinions arose, where the objecting state was a member of the Committee, the issue was subject to discussion within the Committee, and a precedent was set. The same result would likely follow even if the objecting state was not a member of the Committee.

(66) Statistics available at <http://www.un.org/sc/committees/dfp.shtml>.

(67) Consider, for example, the repeated rejection of proposals by the Group of Likeminded States and others to extend the Ombudsperson’s mandate: Concept Paper on Security Council Working Methods (8 October 2014) UN Doc S/2014/725, discussed at the debate on Security Council Working Methods, 7285th meeting of Security Council (23 October 2014) UN Doc S/PV.7285; (10 May 2013) UN Doc S/PV.6964; (9 November 2012) UN Doc S/2012/805.

(68) Grant L Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown Journal of International Law 673, 737, 743–5 (‘effective due process relies on three principal concerns: the independence of the decision-maker, accessibility of the decision-maker to the individual, and the power of the decision-maker to grant effective relief … [T]‌he fact that listed individuals still do not have the right … to judicial review … leaves the regime not in compliance with commonly accepted international due process standards’); Jared Genser and Kate Barth, ‘When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform’ (2010) 33 Boston College International and Comparative Law Review 1, 37 (‘[a]n independent tribunal composed of security-savvy judges and selected by the UNSC, which has the power to hear target complaints and issue binding delisting decisions on the Sanctions Committee, constitutes the mechanism best-suited to the task’); Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads’ (2010) 42 George Washington International Law Review 217, 265, 275 (criticizing the failure on the part of the UN ‘to provide a judicial remedy for those who have been wrongly listed’); Johannes Reich, ‘Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999)’ (2008) 33 Yale Journal of International Law 505, 510–11; Larissa Van den Herik, ‘The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual’ (2007) 20 Leiden Journal of International Law 797, 806–7; Iain Cameron, ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights’ (2003) 72 Nordic Journal of International Law 159, 210 (‘to satisfy the human rights objections, the decision of the arbitral body would have to be binding on the sanctions committee’); John Dugard, ‘Judicial Review of Sanctions’ in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer Law International 2001).

(69) Case T-85/09 Kadi v European Commission [2010] EUECJ, [128]; Her Majesty’s Treasury v Ahmed [2010] UKSC 2 (UK Supreme Court).

(70) Rapport de la Commission de Politique Extérieure du Parlement Suisse, ‘Les Fondements de Notre Ordre Juridique Court-Circuités par l’ONU’ (2010), translated in Council of Europe Parliamentary Assembly, Committee of Legal Affairs and Human Rights, ‘Compatibility of UN Security Council and EU [terrorist] Black Lists with European Convention on Human Rights requirements’ (7 December 2010).

(71) Bardo Fassbender, Targeted Sanctions and Due Process (Council of Europe Committee of Legal Advisors on International Law 2006), 30.

(72) Ibid, 31, para 12.12.

(73) ‘Report of the United Nations High Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (15 December 2010) UN Doc A/HRC/16/50, para 21.

(74) ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (2 August 2010) UN Doc A/65/258, paras 56–7.

(75) International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (2009).

(76) European Commission v Kadi [2013] ECR not yet reported, [133].

(77) Case T-85/09 Kadi v European Commission [2010] EUECJ, [28]. See also Nada v Switzerland [2012] ECHR 169, [209]–[214]; Al-Dulimi and Montana v Switzerland (App No 5809/08), ECHR, 26 November 2013, [119]; Case T-85/09 Kadi v European Commission [2010] EUECJ, [128].

(78) Her Majesty’s Treasury v Ahmed [2010] UKSC 2, [413]–[414].

(79) Her Majesty’s Treasury v Ahmed [2010] UKSC 2 per Lord Philips and Lord Rodger; Abousfian Abdelrazik v Minister of Foreign Affairs 2009 FC 580; Joined Cases T-306/01 and T-315/01 Kadi v Council and Commission [2005] ECR II-0000; Nada v SECO 133 BGE II 450 (2007). Such a role has been envisaged more generally for national courts by, among others, Hersch Lauterpacht, ‘Decisions of Municipal Courts as a Source of International Law’ (1929) 10 British Yearbook of International Law 65, 67, 93; Richard Falk, The Role of Domestic Courts in the International Legal Order (Syracuse University Press 1964), 4, xii; Antonio Cassese, ‘Remarks on Scelle’s Theory of “Role-Splitting” (déboulement fonctionnel) in International Law’ (1990) 1 European Journal of International Law 210, 228, 230–1.

(80) Rapport de la Commission de Politique Extérieure du Parlement Suisse, ‘Les Fondements de Notre Ordre Juridique Court-Circuités par l’ONU’ (2010), translated in Council of Europe Parliamentary Assembly, Committee of Legal Affairs and Human Rights, ‘Compatibility of UN Security Council and EU [terrorist] Black Lists with European Convention on Human Rights requirements’ (7 December 2010), 6.

(81) David Cortright and Erika de Wet, Human Rights Standards for Targeted Sanctions (Sanctions and Security Research Program 2010), 8; Jean L Cohen, ‘A Global State of Emergency or the Further Constitutionalization of International Law: A Pluralist Approach’ (2008) 15 Constellations 456, 474; Jessica Almqvist, ‘A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions’ (2008) 57 International and Comparative Law Quarterly 303; Peter Gutherie, ‘Security Council Sanctions and the Protection of Individual Rights’ (2004) 60 NYU Annual Survey of American Law 491, 535. See also European Parliamentary Committee on Legal Affairs and Human Rights, UN Security Council and European Union Blacklists (2007), add, in which the Special Rapporteur on Legal Affairs and Human Rights for the Parliamentary Assembly of the Council of Europe expresses his hope that ‘national courts could actually compel the UN authorities to improve their procedures and so help to increase the legitimacy of these lists’.

(82) André Nollkaemper, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: Three Replies to Pasquale De Sena and Maria Chiara Vitucci’ (2009) 20 European Journal of International Law 853, 863.

(83) Case T-85/09 Kadi v European Commission [2010] EUECJ.

(84) Her Majesty’s Treasury v Ahmed [2010] UKSC 2, per Lord Hope, Lord Phillips, Lord Rodger, and Lord Mance.

(85) Security Council Report, ‘Counter-terrorism: Al Qaida and Taliban’ (Update Report No 9, 26 June 2008), 2.

(86) ‘Tenth Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Security Council Resolutions 1526 (2004) and 1617 (2005) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities’ (2 October 2009) UN Doc S/2009/502. The Ombudsperson has herself acknowledged that one of her biggest challenges will be ‘access to classified or confidential information’ possessed by states: ‘Report of the Office of the Ombudsperson Pursuant to Security Council Resolution 1904’ (24 January 2011) UN Doc S/2011/29, paras 33–5.

(87) Adam Szubin (US Office of Foreign Assets Control), ‘The Terrorist Designation Process in the United States’ (Countering Terrorism through Domestic and International Targeted Sanctions Conference, American University Washington College of Law, 15 September 2008). See also ‘Eighth Report of the Analytical Support and Sanctions Monitoring Team’ (14 May 2008) UN Doc S/2008/324, 17 (‘It is difficult to imagine that the Security Council could accept any review panel that appeared to erode its absolute authority to take action on matters affecting international peace and security, as enshrined in the Charter’).

(88) UN Security Council resolution 1904 (17 December 2009) UN Doc S/RES/1904.

(89) US Embassy Confidential Cable, ‘Commission Terrorism Sanctions Legal Challenges’, 10USEUBRUSSELS 212 (24 February 2010).

(90) UN Security Council resolution 1904 (17 December 2009) UN Doc S/RES/1904, Preamble.

(91) David Cortright and Erika de Wet, Human Rights Standards for Targeted Sanctions (Sanctions and Security Research Program 2010), para 10.

(92) Presentation by Kimberly Prost, ‘Debating Kadi II’, LSE/Matrix Seminar Series, 13 February 2014 (London School of Economics).

(93) Opinion of Advocate General Bot, European Commission v Kadi (19 March 2013), [81]–[87].

(94) [Cases] European Commission and Council v Kadi [2013] ECR not yet reported, [133]; Al-Dulimi and Montana v Switzerland (App No 5809/08), 26 November 2013, [119]; Nada v Switzerland [2012] ECHR 1691, [209]–[214]; Her Majesty’s Treasury v Ahmed [2010] UKSC 2, [145]–[156] per Lord Phillips; [184]–[185] per Lord Rodger; [246] per Lord Mance; [Reports] Martin Scheinin, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (6 August 2010) UN Doc A/65/258, paras 56–7; David Cortright and Erika de Wet, Human Rights Standards for Targeted Sanctions (Sanctions and Security Research Program 2010), 10; Ben Emmerson QC, ‘Report of UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism’ (26 September 2012) UN Doc A/67/396, paras 14, 201; [Articles] Vanessa Arslanian, ‘Great Accountability Should Accompany Great Power: The ECJ and the UN Security Council in Kadi I and II’ (2012) 35 Boston College International and Comparative Law Review 1, 11, 15; Fremuth, ‘Ein Prozess … : Zum Ausgleich zwischen der effektiven Bekämpfung des Terrorismus und der Beachtung der Menschenrechte in der Sanktionspraxis des Sicherheitsrates’ [2012] Die öffentliche Verwaltung 81, 87 ff; Lisa Ginsborg and Martin Scheinin, ‘You Can’t Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime’ (2011) 8 Essex Human Rights Review 7, 11–12, 19; Grant L Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’ (2011) 42 Georgetown Journal of International Law 673, 745; Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads’ (2010) 42 George Washington International Law Review 217, 219, 264–5, 275; Jared Genser and Kate Barth, ‘When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform’ (2010) 33 Boston College International and Comparative Law Review 1, 26, 41; Adele Kirschner, ‘Security Council Resolution 1904 (2009): A Significant Step in the Evolution of the Al Qaida and Taliban Sanctions Regime?’ (2010) 70 ZaöRV 585, 602, 604–5.

(95) UN Department of Public Information, ‘Press Conference on Security Council Al-Qaida and Taliban Sanctions Committee’ (2 August 2010).

(96) European Commission v Kadi [2013] ECR not yet reported, [133].

(97) Case T-85/09 Kadi v European Commission [2010] EUECJ, [28]. See also Nada v Switzerland [2012] ECHR 169, [209]–[214]; Al-Dulimi and Montana v Switzerland (App No 5809/08), 26 November 2013, [119].

(98) Her Majesty’s Treasury v Ahmed [2010] UKSC 2, [145]–[156] per Lord Phillips; [184]–[185] per Lord Rodger (Lady Hale agreeing); [246] per Lord Mance.

(99) Ben Emmerson QC, ‘Report of UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism’ (26 September 2012) UN Doc A/67/396, paras 14, 20–1.

(100) ‘Eighth Report of the Analytical Support and Sanctions Monitoring Team’ (14 May 2008) UN Doc S/2008/324, 17.