I have the honour of addressing the Council on behalf of the informal group of like-minded countries which has taken a specific interest in strengthening fair and clear procedures for targeted sanctions and making the UN sanctions regimes more effective. This group is comprised of Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and my own country, Switzerland.
Let me join others in thanking the Chairs of the three Committees for their informative briefing. As the focus of our group lies on targeted sanctions and fair and clear procedures, my remarks will concentrate on the Sanctions Committee established pursuant to Council resolution 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities. In this regard, I should underline that the group supports and fully recognizes that targeted sanctions are a useful and necessary tool to effectively combat international terrorism. Our position on the issue of sanctions reform is guided by the aim of strengthening the Al-Qaida sanctions regime.
Let me begin by welcoming the adoption of resolution 1989 in June this year. The resolution enhances due process both for listing and delisting procedures. It reasserts that listings should be accompanied by a statement of case which should be made available upon request. This makes it more likely that a petitioner will learn what is held against him or her. In the same vein, the designating State is strongly encouraged to reveal its identity, narrative summaries of the reasons for listings are sought for all cases, and there is considerable effort brought to bear on weeding out entries that lack the necessary identifiers.
As with regard to delistings, the reforms are even more noteworthy. If a delisting request is objected to, reasons must be given. The resolution renews the mandate of the Office of the Ombudsperson for another 18 months. All States are strongly encouraged to share all relevant information with the Ombudsperson, including confidential information, to enable a fair assessment of a petitioner’s case. Most significantly, both the Ombudsperson and the designating State now have the authority to recommend delistings under the same procedure. Their recommendations will be carried out unless there is consensus within the Sanctions Committee to reject them within 60 days or unless the Security Council rejects them upon appeal by a member of the Committee.
The like-minded group can only stress the significance of these latest reforms towards granting an independent and effective remedy to anyone who believes him- or herself to be wrongfully labelled as being associated with Al-Qaida. Read against the background of past improvements to the 1267 sanctions regime, notably the establishment of the focal point, the introduction of narrative summaries, the comprehensive review undertaken and followed by detailed periodic reviews of the consolidated list and different categories of listings, and of course the establishment of the Office of the Ombudsperson itself, the new amendments have contributed considerably to the overall fairness and effectiveness of the Al-Qaida sanctions system.
Likewise, the like-minded group takes this opportunity to commend the Ombudsperson, Judge Kimberly Prost, for the excellent quality of her work since she took office in summer last year. There is now a strong built-in presumption, which is widely shared, that the Ombudsperson’s presentations are based on in-depth analysis, well founded and well received by the Committee when deciding delisting requests presented by her Office. The result is an Ombudsperson that is more likely to gain access to case-relevant information, and a designating State that is more likely to be able to implement what its own national or regional courts require it to do.
Now that these reforms have been put into place, there is a strong need for all actors involved to cooperate and ensure that they deliver the envisaged results. The Ombudsperson cannot be successful without the support of Member States. Cooperation with the Office of the Ombudsperson, including the provision of confidential information in individual cases, will therefore be key. Legal and practical ways of allowing the Ombudsperson’s access to all relevant information regarding a particular listing should be actively explored, such as through the conclusion of confidentiality agreements or arrangements. Among the like-minded countries, Switzerland, Belgium and Costa Rica already have arrangements in place with the Office of the Ombudsperson. They stand ready to answer – on a bilateral basis – any question the wider membership might have in that respect.
Of equal importance is the provision of adequate resources to the Ombudsperson. We therefore call upon all Member States to look favourably upon the budgetary requests of the Office of the Ombudsperson for additional staff and additional resources so as to enable her to continue to process the increasing number of petitions fully, effectively and in a timely manner. Adequate resources are essential for the Ombudsperson to be able to fulfil her reinforced mandate in full accordance with fundamental requirements of the rule of law, such as the translation of relevant documents into a language familiar to the petitioner.
Finally, we note that the effectiveness of the Al-Qaida sanctions regime will also be judged by the number of appeals to the Security Council. The Council retains the authority to oppose a delisting recommendation under its ordinary decision-making rules. We appeal to the members of the Sanctions Committee that such appeals, if any, will not be made unless there are exceptionally compelling and comprehensible reasons. The perception of fairer and clearer procedures as obtained through resolution 1989 (2011) could be compromised if appeals were to become a common and successful routine.
The 1267 sanctions system continues to be perceived as failing to conform to due process standards. National parliaments as well as national and regional courts tend to scrutinize the regime critically. Examples of recent challenges to the implementation of UN sanctions decisions in Europe include the Kadi decision of the General Court of the EU of September 2010, which is still under appeal, and the case of Nada v. Switzerland, which is pending before the Grand Chamber of the European Court of Human Rights. On the basis of the aforementioned, the group of like-minded States encourages the Security Council to proactively continue its efforts to improve fair and clear procedures. We recall our recommendations in our letter of April this year, including the idea of introducing a sunset clause for all listings.
In this context, the group takes note of the decision by the Security Council to establish a separate, country-specific sanctions regime for those constituting a threat to peace, security and stability in Afghanistan, in particular the Taliban and associates. We note further that some of the institutional features designed to increase the fairness of procedures in the Al-Qaida sanctions regime, including the authority of the Ombudsperson, do not apply to the new regime pursuant to resolution 1988 (2011). We take note of the different procedures in different sanction regimes. The like-minded countries reaffirm their strong view that the question of fair and clear procedures is relevant for all Sanctions Committees and any improvement in the fairness of procedures will not only contribute to the observance of human rights but also to the legitimacy and effectiveness of the Security Council’s action.
Thank you, Mr. President.