Responding to complaints about the lack of due process protections in the terrorist sanctions, and the listing and delisting procedures, the United Nations Security Council (UNSC) established the Office of the Ombudsperson in Security Council Resolution 1904 in 2009. The Ombudsperson is empowered to gather information and to interact with the petitioner, relevant states and organizations with regard to delisting requests.
The Ombudsperson’s mandate has since been extended through a series of UNSC resolutions. Most recently, in December 2015, the UNSC unanimously adopted Resolution 2253, which updates the listing and delisting criteria for its terrorist sanctions regime and extends the mandate of the Ombudsperson until December 2019 (paragraph 54). This measure renames the “Al-Qaida Sanctions List” to the “ISIL (Da’esh) & Al-Qaida Sanctions List,” thus expanding the office of Ombudsperson’s scope and reaffirming its mandate to impose an asset freeze, travel ban and arms embargo on all individuals and organizations associated with the two organizations.
NOTE: All citations below are from Resolution 2253, unless stated otherwise.
Despite the improvements of UNSC Resolutions 1904 and 1989, critics of the sanctions regime have remained skeptical. Ben Emmerson, UN Special Rapporteur on Counterterrorism and Human Rights, released a report in September 2012 that highlighted deficiencies of the Ombudsperson position from a human right perspective. In particular, he noted that the Ombudsperson’s office is not strong enough because it cannot make its own decisions on delisting, nor can it force member states to provide information. He also argued that the process does not meet international due process standards.
Calling themselves the “Like Minded States,” a coalition of countries submitted recommendations to improve fairness and transparency in the targeted sanctions regime to the Security Council and the Secretary-General in early November 2012. These included having “sunset clauses” for some listings after 36 months, letting the accused see the evidence against them to assist with legal challenges to the listing, improvements to procedures affecting the delisting process, and empowering the office of the Ombudsperson. One recommendation called for allowing individuals to submit their own applications for “humanitarian exemptions” through the Ombudsperson. The responsibility of advancing an individual’s request lies with the country that made the listing. But, “in order to guarantee full respect for fundamental rights,” the Like Minded States wrote, “individuals and entities themselves should have the right to petition for an exemption.” Led by Austria and Switzerland, the Like Minded States included Belgium, Finland, Norway, Costa Rica, Liechtenstein, Netherlands, Sweden and Germany. (Read the full list of recommendations here).
Within Resolution 2253, the Security Council expresses concerns with its Member States’ “lack of implementation” of earlier resolutions regarding the sanctions regime (paragraph 15). This reflects the concerns expressed by the outgoing Ombudsperson, Kimberly Prost (Canada), in her letter to the Secretary-General in July 2015, over the limited power of the Office to enforce cohesive action. The current Ombudsperson is now Catherine Marchi-Uhel (France).
The December 2015 resolution urges its Member States to aid the work of the Ombudsperson by “participate[ing] actively in maintaining and updating the ISIL (Da’esh) & Al-Qaida Sanctions List by contributing additional information pertinent to current listings, submitting delisting requests when appropriate, and by identifying and nominating for listing additional individuals, groups, undertakings, and entities.”
Under Chapter VII of the Charter of the United Nations, Resolution 2253 reaffirms the previous measures for sanctions imposed on those listed under the Ombudsperson’s criteria and notes that these punishments “shall also apply to the payment of ransoms to individuals, groups, undertakings or entities on the ISIL (Da’esh) & Al-Qaida Sanctions List, regardless of how or by whom the ransom is paid” (paragraph 8). Under Measures Implementation, the Resolution reconfirms Member-States’ responsibilities to the Office of Ombudsperson and “urges Member States to provide full coordination in such investigations or proceedings, especially with those States where, or against whose citizens, terrorist acts are committed, in accordance with their obligations under international law, in order to find and bring to justice, extradite, or prosecute any person who supports, facilitates, participates or attempts to participate in the direct or indirect financing of activities conducted by ISIL, Al-Qaida and associated individuals, groups, undertakings and entities” (paragraph 12).
As with previous resolutions concerning the sanctions regime, the Security Council welcomed recent reports from the Financial Action Task Force (FATF) and strongly urges Member-States “to implement the comprehensive international standards embodied in the Financial Action Task Force’s revised Forty Recommendations on Combating Money Laundering and the Financing of Terrorism and Proliferation, particularly Recommendation 6 on targeted financial sanctions related to terrorism and terrorist financing” (paragraph 16). During the Security Council meeting to adopt Resolution 2253, the President of the FATF, Je-Yoon Shin, took to the floor to explain that disrupting financial transactions is key to counter terrorism efforts because “money is its [ISIL] biggest vulnerability.” (United Nations Press Coverage – Read the full Briefing here.)
Resolution 2253 also formalizes the time-line of procedures for delisting requests made to the Ombudsperson (Annex II). These measures reaffirm that “the Secretariat shall, after publication but within three working days after a name is added to the ISIL (Da’esh) & Al-Qaida Sanctions List, notify the Permanent Mission of the State or States where the individual or entity is believed to be located and, in the case of individuals, the state of which the person is a national” as well as requests “the Secretariat to publish on the Committee’s website all relevant publicly releasable information, including the narrative summary of reasons for listing, immediately after a name is added to the ISIL (Da’esh) & Al-Qaida Sanctions List” (paragraph 52). These measures are intended to provide greater transparency, as well as share information and communication between the Office of the Ombudsperson, the Security Council and its Member States.