The role of the Office of the Ombudsperson to the ISIL and Al-Qaida Sanctions Committee

After the 1998 terrorist attacks on the US embassies in Kenya and Tanzania, as well as 9/11, the need for tackling terrorism on a global scale was imminent. The United Nations Security Council (UNSC) therefore acted under its powers vested in Chapter VII of the UN Charter, and adopted a series of resolutions aimed at tackling terrorism and preserving international peace and security. One of the measures contained in those resolutions was the imposition of sanctions pursuant to Art. 41 UN Charter, including inter alia, assets freeze, arms embargoes and travel bans to any individuals, groups, undertakings and entities associated with Al-Qaida and ISIL (Da’esh). The sanctions regime is overseen by the UNSC Committee pursuant to Resolutions 1267(1999), 1989(2011) and 2253(2015) concerning ISIL, Al-Qaida and associated individuals, groups, undertakings and entities.^[1]

Soon after people started being put into the sanctions list, grave concerns arose in relation to the human rights dimension of the sanctions and the lack of judicial review and effective remedy for people who have been listed by the UNSC. Consequently, ten years after the UNSC Sanctions Committee was established, the Office of the Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee was set up in 2009.[2] The Office has the mandate to receive individual petitions, contact the petitioner and gather all relevant information and ultimately to compose a report on the individual’s listing situation which is presented to the Sanctions Committee.^[3] The Committee’s delisting procedure aided by the Ombudsperson consists of three phases: (i) in the information-gathering phase, the Ombudsperson gathers all relevant information and seeks access to documents and intelligence from States, UN bodies and the Committee’s Monitoring Team; (ii) in the dialogue phase, the Ombudsperson engages with the petitioner, hence submitting her findings and recommendations to the Committee, and (iii) in the petition-assessing phase, the Committee evaluates the Ombudsperson’s recommendation, leading to either a retainment of the individual’s name on the list or, alternatively, its delisting (the Committee thus far has followed the Ombudsperson’s recommendations).^[4]

Following the 9/11 attacks, the number of people put under the sanctions list dramatically expanded, exposing the human suffering behind these sanctions and the fact that the targeted individuals’ fundamental rights were blatantly disrespected. The individuals were put in the list without prior notice and without any possibility for them to contest or request delisting. This raised concerns about the listed individuals’ human rights, including freedom of movement, the right to enjoy property and the right to fair process and effective remedy. This disrespect for human rights was also criticized by the Court of Justice of the European Union in the Kadi case,[5] as well as the European Court of Justice in Nada,^[6] both of which found this lack of due process and effective remedies to be incompatible with their human rights frameworks. In particular, the lack of due process, the fact that no judicial review was available to listed persons, as well as the lack of effective judicial remedies, were found to constitute a serious breach of human rights. Furthermore, it needs to be emphasized that the UNSC is an executive political body composed of States. Sanctions entail a grave interference with the individual rights of persons. It follows that, for it not to degenerate into an absolute power over individuals, this power needs to be subject to review, just like any other executive organ. Thus, as a compromise, the UNSC created the Ombudsperson’s mechanism as a means to meet the requirements of fair process, while not significantly amending its decision-making ability.^[7] Yet, even after the start of the work of the Office,  concerns are still voiced as to the fact that the Ombudsperson is “not a court”,^[8] due to the non-binding nature of the Ombudsman’s recommendations and the fact that the Office does not achieve the same level of protection as a regular court would do.

However, my opinion does not concur with the abovementioned concern. In my view, these criticisms are not entirely grounded in practice, and the creation of the Ombudsperson should be considered as an important step towards a fairer sanctions regime. More specifically, if one carefully examines the analysis provided by Hovell in her ‘Due Process in the United Nations’ article, a number of advantages compared to a judicial body become apparent. More specifically, she gives three main benefits stemming from the Ombudsperson’s framework – expertise, access to pressure points, and the capacity to negotiate specific arrangements.^[9] However, I would like to stress on three other not-so-explicit benefits which can prove crucial for ensuring due process. Firstly, the Ombudsperson provides flexibility as it is way more accessible than courts to the petitioner, by ensuring different ways of communication and reaching out to the petitioner.^[10] Secondly, the nine-months Ombudsperson’s procedure is in clear contrast with normal judicial proceedings which normally take years to conclude.^[11] Thirdly, the accessibility of the Ombudsperson for listed people is much higher than a normal judicial process due to the absence of required legal representation and costs deriving from it.^[12] Hence, even though the Ombudsperson is not by itself a ‘proper court’, it provides for an array of benefits which were tailored to its mandate (i.e. the review of individual petitions for delisting) and which provide a timely, flexible and accessible mechanism where individuals may challenge their listing.

Finally, academics and practitioners have focused their criticism on the form and procedure of the Ombudsperson’s mechanism, as well as the non-binding nature of its recommendations. However, in my opinion, its main weakness lies in the limited scope of its mandate. The Ombudsperson’s mandate is indeed limited to sanctions issued by the UNSC Sanctions Committee concerning ISIL (Da’esh), Al-Qaida and associated individuals, groups, undertakings and entities. The UNSC has failed to extend the scope of this office’s mandate to cover other sanctions regimes,^[13] such as the Somalia Sanctions Committee or the 1518 Sanctions Committee. Different arguments can be made as to why the mandate was limited. Surprisingly, this failure has attracted very limited opposition and virtually no opposition in the UNSC.^[14] Perhaps, there have been an array of political reasons such as the fact that the ISIL and Al-Qaida Sanctions Committee is central to the ‘war on terror’ and is directly linked to the immediate security interests of certain P5 states. Another reason might be that this specific Committee has the biggest listing. Regardless of such arguments, it needs to be highlighted that a difference between the sanctions regimes must not be made and all targeted people should be provided with remedies. Lastly, it would be my proposal that a global Ombudsperson to review the work of all active sanctions committees is established, in order to provide targeted people with due process and effective remedies and to minimize the infringement of human rights by the UNSC.

This article is written in the author’s personal capacities and does not reflect the views of the institutions which they may be affiliated with.

[1]  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267; UNSC Res 1989 (17 June 2011) UN Doc S/RES/1989 and UNSC Res 2253 (17 December 2015) UN Doc S/RES/2253.
[2] The Office of the Ombudsperson was established by UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 and its mandate was extended by UNSC Res 1989(17 June 2011) UN Doc S/RES/1989, UNSC Res 2083(17 December 2012) UN Doc S/RES/2083 , UN Res 2161(17 June 2014) UN Doc S/RES/2161 , UNSC Res 2253(17 December 2015) UN Doc S/RES/2253 and UNSC Res 2368(20 July 2017) UN Doc S/RES/2368.
[3] UNSC Res 2161 (17 June 2014) UN Doc S/RES/2161, Annex II.
[4] UNSC Res 2368(20 July 2017) UN Doc S/RES/2368 , paras. 60-80; Committee Guidelines (last amended 5 September 2018), accessible at: <https://www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/guidelines_of_the_committee_for_the_conduct_of_its_work_0.pdf>,  Sections 4 and 7.
[5] Joined Cases C–402/05 P and C–415/05 Yassin AbdullahKadi and Al Barakaat International Foundation v Council of the European Union and European Commission  [2008] ECLI:EU:C:2008:461.
[6] Nada v Switzerland App no 10593/08 (ECtHR, 12 September 2012).
[7] N. Wexels-Riser, The Security Council’s ISIL (Da’esh) and Al-Qaida Sanctions Regime: The Human Dimension, Presentation at the Max Planck Institute for Foreign and International Criminal Law (2 December 2017), p. 3.
[8] D. Hovell, ‘Due Process in the United Nations’ (2016) 110 AJIL 1, p.9, referring to, inter alia, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi (Kadi II), [2013] ECLI:EU:C:2013:518; Al-Dulimi v Switzerland App no 5809/08 (ECtHR, 26 November 2013); UNGA, Second Report on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism(26 September 2012) UN Doc A/67/396.
[9] Hovell (n8), p. 28-29.
[10] Ibid., p. 24.
[11] Ibid., p. 24.
[12] Ibid., p. 24.
[13] Ibid., p. 10.
[14] Ibid., p. 10 referring to rejection of proposals for the extension of the Ombudsperson’s mandate, e.g. UNSC 7285th Meeting (23 October 2014) UN Doc S/PV.7285.