Enhancing due process in UN Security Council targeted sanctions regimes

The United Nations (UN) Security Council provided basic due process protection for individuals designated under its counter-terrorism sanctions regime when it created the Office of the Ombudsperson for the ISIL (Da’esh) and Al-Qaida Sanctions Committee in 2009. The Office has since strengthened sanctions implementation by addressing legitimacy challenges facing the policy instrument from litigation in courts around the world and improving the quality of designations. However, the rights to due process continue to be denied for those designated under the remaining UN sanctions regimes. Of the 934 individuals and entities currently designated for sanctions by the Security Council, a majority (584) lack access to the Office of the Ombudsperson. Recommendations that the mandate of the Office be extended to other UN sanctions regimes have been resisted by some permanent members of the Security Council. A 2018 report by the Centre for Policy Research at the United Nations University (UNU) identified increasing numbers of cases of litigation against UN Security Council designations for non-terrorism related activities. The report also pointed to the instrumentality of due process as a means to improve targeting accuracy. The 2018 UNU report recommended that context-specific review mechanisms be established for individuals and entities designated for activities other than terrorism. This report picks up on the UNU proposal and presents ideas for context-specific review mechanisms that could provide comparable due process protections for situations of armed conflict, which constitute nearly three-quarters (72%) of the total non-terrorism related designations by the Council today. Beginning with a discussion of the different types of conflicts for which individual sanctions have been applied – armed conflicts, proliferation, and non-constitutional changes of government – the report recommends an initial focus on creating a mechanism for armed conflict situations, particularly conflicts without counter-terrorism aspects. Next, counter-terrorism and armed conflict sanctions regimes are contrasted, and differences in political context and the kinds of information systems that underlie the respective sanctions regimes are highlighted. These differences have implications for the profiles of the potential reviewer(s), the processes that might guide their work, as well as their possible location. Core elements of due process at both the stages of listing and delisting are discussed and the report identifies two institutional options for a context-specific review mechanism for armed conflict situations: (1) an Independent Reviewer and/or (2) Panels of Independent Reviewers. The Democratic Republic of the Congo (DRC) is recommended as an appropriate first case for the development of a new review mechanism, one that could possibly be extended to other, similar armed conflict situations without the presence of groups engaged in acts of global terrorism (such as Central African Republic, South Sudan, and Sudan). The report concludes with a draft text for a Security Council resolution, modeled after the resolution that created the Office of the Ombudsperson to ensure fundamental comparability with its due process protections, but adapted to accommodate the different experience, expertise, and procedures needed for conducting reviews in other contexts.