Archive /
Security Council passes resolution 1904 increasing due process protection in sanctions regime
The Security Council unanimously adopts resolution 1904 (2009), revising its guidelines concerning the listing of individuals and entities linked to Al-Qaida and the Taliban.
On 17 December 2009, the Security Council unanimously adopted resolution 1904, which introduces measures to increase the fairness and transparency of the sanctions regime imposed on Al-Qaida, Usama bin Laden and the Taliban. This resolution responds to calls for improving due process protection for the regime and thereby strengthening the rule of law at the international level.
On the process of listing individuals and entities onto the “Consolidated List” (i.e. those subject to the sanctions), for the first time, the resolution encourages Member States to specify whether the Sanctions Committee may make known a Member State’s status as a designating State and allows the Committee to extend, with exceptions, the time period for consideration of listing proposals to better ensure those proposed do merit inclusion in the List.
On the process of delisting, the resolution establishes the Office of the Ombudsperson, which builds on and replaces the focal point mechanism created by Security Council resolution 1730. The Ombudsperson is an independent officer who will be able to intervene on behalf of individuals or entities placed on the List. The Ombudsperson is required to inform the petitioner of, and answer his or her specific questions on, the delisting procedure; ensure statements from the petitioner are received by the Committee; initiate where necessary a process for gathering information relevant to delisting requests, followed by a period of engagement which may include dialogue with the petitioner; and draft a report which includes the principal arguments concerning the delisting request. The timeframe for the Ombudsperson to complete his or her work on a request is limited to six months unless otherwise extended. The text further calls on Committee members to provide reasons for objecting to requests, which the Ombudsperson may convey to the petitioner, as appropriate.
One of the earliest calls for enhancing due process protections in the sanctions regime emanated from the 2004 report of the Secretary-General’s High-level Panel on Threats, Challenges and Changes (A/49/565), which noted that the “way entities or individuals are added to the...list…and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions.” The 2005 World Summit Outcome Document (A/RES/60/1) reflected these concerns wherein Member States called upon the Security Council “to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them”.
The Secretary-General responded in June 2006 in a letter to the President of the Security Council [referred to in the Security Council debate on 22 June 2006 (UN Doc. S/PV.5474 (2006)], setting out four basic elements that had to be achieved for the system to meet the minimum requisite standards of fairness and transparency: firstly, listed parties have the right to be informed of the case against them; secondly, they have the right to be heard within a reasonable time by the decision-making body; thirdly, they have the right to review by an effective review mechanism and fourthly, the Security Council should itself periodically review targeted individual sanctions.
Beyond the UN system, the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights of the International Commission of Jurists found, in 2008, that “ no effective means for challenging a listing decision once made [exists] because, despite some reforms, the listed individual or entity seeking de-listing or exemptions must continue to rely on the goodwill of a State, and has no possibility of directly petitioning the Committee. The decision to remove someone from a list is essentially a political one, in that it is taken by consensus by the Sanctions Committee whose membership corresponds to that of the Security Council, allowing any Member State the power to veto a de-listing decision. There is no option for independent review. Once listed by the UN, there is no time-limit to the listing, and de-listing will prove extremely difficult, since it requires the agreement of all five permanent members.” In the same year, the European Court of Justice (Grand Chamber) ruled in Kadi and Al Barakaat v. Council of the EU and EC Commission that the application of the sanctions regime in the EU breached the applicants’ right of defence and right to an effective legal remedy – the authorities were not required to provide either the reasons or the evidence for the listing nor did they have to hear out the parties prior to any listing.
Resolution 1904 is a critical step towards addressing the concerns raised, building on the measures already undertaken by the United Nations to advance due process protection including the passing of resolutions 1730 (2006), 1735 (2006) and 1822 (2008). Indeed, as the Secretary-General noted in his 2009 Annual Report on strengthening and coordinating United Nations rule of law activities (A/64/298), pursuant to resolution 1822 (2008) a review of all the names on the Consolidated List, will be completed by 30 June 2010 with a regular review carried out thereafter, in order to ensure the List is as updated and accurate as possible and to confirm that listing remains appropriate.