Tuesday, January 29, 2013
These past two days, my home institution, the Southern Illinois University School of Law, had the pleasure of hosting a visit by Judge Kimberly Prost, United Nations Security Council (UNSC) Ombudsperson for the Al Qaida Sanctions Committee. Judge Prost is a former prosecutor from Canada, and has served as the Chief of the Legal Advisory Section in the UN Office on Drugs and Crime, as well as serving for four years as a judge ad litem at the International Criminal Tribunal for the former Yugoslavia. In 2010, the UN Secretary General appointed her as the first Ombudsperson for the UNSC Al Qaida Sanctions Committee. In that role, she is responsible for hearing and making recommendations on petitions from persons who have been listed as associating with Al Qaida and who believe they should be delisted.
Judge Prost described the history of the creation of her office and her current role and authority. The UNSC, pursuant to its Chapter VII powers, along with individual states, use "smart" sanctions to target persons who associate with Al Qaida to avoid the suffering of the general population that often accompanies broad-based sanctions programs. Persons placed on the list usually have their assets frozen and are subject to bans on travel and weapons purchases. When the sanctions programs were originally created, there was no procedure for delisting someone once the person had been placed on the targeted list. Persons who thought they were wrongfully targeted began bringing legal challenges seeking a procedure to be removed from the list. In response, the Office of the Ombudsperson was established by Security Council resolution 1904 (2009) and amended by resolution 1989 (2011).
One of the most famous, and so far, successful, challenges has been by a Saudi Arabian businessman named Kadi. He convinced the European Court of Justice (ECJ) that the program violates fundamental due process rights. As a result, the European courts have essentially instructed the European Union countries not to comply with the UN Al Qaida sanctions program unless due process rights are respected. (The Kadi decision may be found here.) Largely as a result of those legal proceedings, the UN Ombudsperson now has the power to investigate individual petitions and to make recommendations to delist a person and those recommendations are binding unless the entire UNSC votes in opposition (a reverse consensus procedure).
In carrying out her job, Judge Prost often travels to various countries to visit the petitioners and interview them in person. She also consults with governments to determine whether there is sufficient and credible information today to believe the person should remain on the sanctions list. So far, she has recommended delisting 20 persons and the UNSC has not overturned any of her recommendations.
The UNSC is to be commended for creating a more robust procedure for allowing the delisting of persons where there has been a mistake or where circumstances have significantly changed since the person was listed. The procedure still is not perfect, of course. In November 2012, Mr. Ben Emmerson, the Special Rapporteur on Human Rights and Counter-Terrorism, issued a report recommending some additional procedures, such as increased access to confidential information by the Ombudsperson and creation of a fund to pay for counsel for petitioners who cannot afford their own lawyers. In addition, due process procedures need to be extended to other international and national sanctions programs.