Context
Decisions regarding the Security Council’s ISIL (Da'esh) and Al-Qaida sanctions regime rest exclusively with the Security Council. With respect to the ISIL (Da'esh) and Al-Qaida Sanctions List, the Security Council has mandated the ISIL (Da'esh) and Al-Qaida Sanctions Committee with making determinations regarding listing and delisting in accordance with the overarching criteria set out by the Council. The creation of the Office of the Ombudsperson has not altered that decision making structure, though it has introduced a new process. As a corollary, it is clearly for the Security Council and the Committee to determine what standards it will apply in taking its decisions in this context.
However, the Ombudsperson has been assigned an important role to assist the Committee in its determinations on delisting. In that role, to ensure that the analysis, observations and recommendation of the Ombudsperson are provided in a fair and consistent manner from case to case, it is necessary to clearly articulate the approach being employed and the standard by which the information is to be assessed.
Both the approach and standard must be informed by the unique context of decisions being taken by a body of the Security Council and the particular role of the Ombudsperson. Further, the method and test employed must take into consideration the threat to international peace and security underlying the sanctions, as well as the serious nature of the sanctions measures when applied to individuals and entities.
Approach
The Security Council has mandated the Ombudsperson to assist the Committee with delisting requests by, inter alia, providing an analysis of, and observations on, all information available to the Ombudsperson relevant to the delisting request. The Ombudsperson also provides the Committee with a recommendation on delisting.
This statement provides clear guidance as to the nature of the analysis and observations expected. As the role of the Ombudsperson is to assist with delisting decisions, any comments provided should obviously relate to the question that the Committee must answer in deciding on a delisting request.
The Security Council has not defined separate criteria which must be met for delisting to occur. While Resolution 1735, in paragraph 14, sets out factors of a non - exclusive nature, which the Committee “may consider”1, in deciding on delisting, these cannot be categorized as criteria which must be met for delisting to occur.
Rather, it is evident from the relevant resolutions that the Committee, in reviewing a delisting request, will consider all of the relevant circumstances, with a view to determining whether the individual continues to meet the criteria for listing set forth by the Security Council. In essence, the test for delisting is the opposite of the test for listing. Therefore, in my view, the analysis and observations of the Ombudsperson should similarly focus on that question.
In addition, the Security Council has, in my opinion, unmistakably signaled that a delisting decision will be a de novo one which looks at the circumstances, as they stand at the time of the delisting request, to determine the appropriateness of a continued listing. In this regard, the Security Council’s inclusion in resolution 1735 (2006), of ‘disassociation’ as a factor which may be considered with reference to delisting, evidences this approach. Similarly, the reference in resolution 1989 (2011) to the removal from the Al-Qaida Sanctions List of “members and/or associates of Al Qaida who no longer meet the criteria” 2 supports a consideration of circumstances which have changed since the original listing. Further, the Security Council has plainly directed the Ombudsperson to analyze all the available information. 3 The absence of restrictions, particularly temporal ones, makes it evident that the assessment should address all the pertinent material, whether relied on in the context of the original decision or not.
At the same time, it is obvious that any assessment of the totality of information at present will include the historical context of the listing and, in particular, the circumstances surrounding the original designation. It is also evident that in the context of a comprehensive analysis, the absence of recent information is in no way determinative. It is simply one factor which needs to weighed and assessed on the basis of the particular circumstances in each case.
In conclusion, as the role of the Ombudsperson is to assist the Committee in its decision making process, the analysis conducted and observations provided should relate substantively to the question to be determined by the Committee – whether an individual or entity continues to meet the criteria for being included on the ISIL (Da'esh) and Al-Qaida Sanctions List. To accomplish this, in my opinion, the analysis and observations of the Ombudsperson, as well as the principal arguments set out and the Ombudsperson’s recommendation, should address, to the defined standard, whether today the continued listing of the individual or entity is justified based on all of the information now available.
Standard
In aid of coherent analysis and observations from the Ombudsperson, the information gathered and the reasoning applied to it, must be assessed to a consistent standard. This standard must be one which is appropriate to the unique context of decisions by a Committee acting under the express direction of the Security Council. It must take into account the purely international framework, where the benchmark used cannot be premised on the precepts of one particular legal system or tradition. It must instead focus on concepts generally accepted as fundamental across legal systems. In order to arrive at an appropriate standard for the Ombudsperson to apply, I have looked to national and regional law and jurisprudence, particularly in the context of asset freezing or other restrictions in counter terrorism regimes. 4 This research has helped to inform the development of an appropriate test in the context of the ISIL (Da'esh) and Al-Qaida sanctions regime.
The standard must also reflect the express intent of the Security Council with regard to the purpose of the sanctions namely “that the measures…are preventative in nature and are not reliant upon criminal standards set out under national law”. 5 At the same time, it must be a measure of adequate substance to sustain the serious restrictions imposed on individuals and entities through the application of the sanctions.
In this regard, it is evident that the standard applicable in criminal proceedings, nationally, regionally or internationally, is not appropriate for assessing the information and circumstances related to a listing by the Committee. The sanctions are not intended to punish for criminal conduct. Rather, relevant Security Council resolutions demonstrate that the aim is twofold – to hamper access to resources in order to impede, impair, isolate and incapacitate the terrorist threat from ISIL (Da'esh) and Al-Qaida, and to encourage a change of conduct on the part of those who are members of this group or ‘associated with’ it. In these circumstances, the standards applicable to a determination of criminal guilt or innocence are obviously of a different nature and serve a distinct purpose from that of the sanctions.
At the same time, the sanctions flowing from inclusion on the ISIL (Da'esh) and Al-Qaida Sanctions List are of a significant nature. When implemented on an international scale they have a direct and considerable impact on the rights and freedoms of individuals and entities. They are also of an indeterminate length, with no specified end date. Therefore, there must be some substance and reliability to the information upon which such sanctions are applied to these individuals and entities. Mere “suspicion” or reliance upon statements without any consideration as to underlying information or some assessment of credibility is equally inapt in this context.
Finally, the standard must be informed by the wide variance of circumstances and types of information, relevant to these cases, particularly given the international nature of the listing process.
Taking into account the need to balance these factors, in my view, the standard for the Ombudsperson’s analysis, observations and recommendation should be whether there is sufficient information to provide a reasonable and credible basis for the listing.
“Sufficiency” provides the necessary flexibility in terms of assessing different types of information from distinct sources, quantitatively, qualitatively and in substance. The criteria of “reasonableness and credibility” ensure that the combined circumstances provide a rational base for the listing, which is reliable enough to justify the imposition of the sanctions measures. These factors of sufficiency, reasonableness and credibility also offer appropriate benchmarks for analyzing, as far as possible, underlying information, and the reasoning which is applied to it in relation to the listing. In my opinion, it is a standard which recognizes a lower threshold appropriate to preventative measures, but sets a sufficient level of protection for the rights of individuals and entities in this context.
1 “Decides that the Committee, in determining whether to remove names from the Al-Qaida Sanctions List, may consider, among other things…” (emphasis added).
2 Paragraph 30 of resolution 1989 (2011)
3 Paragraph 7(c) of Annex II to resolution 1989 (2011) which reads in part” Based on an analysis of all the information available to the Ombudsperson…”
4 Several states use their normal criminal or other judicial procedure for the freezing of terrorist assets and so rely on standards applicable to the initiation of a criminal investigation or prosecution or application for a judicial warrant for freezing, for example that there is "sufficient evidence" or a "strong suspicion". In the domestic designation of terrorist entities in a number of common law jurisdictions, a form of “reasonable grounds or a basis/to believe /suspect/be satisfied of” involvement in or commission of terrorist acts or activities is used. The Financial Action Task Force also recommends the alternatives of “reasonable grounds or basis/to suspect/to believe”, as does the Commonwealth’s Model Legislative Provisions on Measures to Combat Terrorism (reasonable grounds to suspect or to believe). In one interesting common law deviation the legislation used to designate terrorist groups, requires demonstration of “sufficient cause” to uphold an unlawful association listing. The European Union uses different language again: the Council lists a person where there is precise information or material which indicates that a decision has been taken by a competent authority of a Member State based on “serious and credible evidence or clues.” In a different context, article 1F of the Refugee Convention provides that protection can be refused to an individual where there are "serious reasons to consider" they have committed an international crime.