While the international legal order as we know it seems to be tilting to a more anarchic mode, incremental changes to the UN system of collective security and specifically the UN Security Council are still materializing. In the year that Russia started the war against Ukraine, which resulted in the Council’s paralysis on many fronts, a landmark Resolution 2664 appeared, creating a humanitarian carve out to UN sanctions, recently renewed in Resolution 2761 (2024).
Last summer, in the midst of the deepening poly-, or even perma-crisis of the international system, the Security Council surprisingly achieved an important improvement to its sanctions system in terms of due process and rule of law standards. Resolution 2744, adopted on 19 July 2024, significantly enhanced the mandate of the Focal Point, originally created in 2006. Through this renewed mechanism, individuals and entities on sanctions lists other than the one on Al-Qaida and ISIS will finally have some access to a de-listing procedure. It is true that Resolution 2744 remains far from meeting all the requirements of due process rights, particularly concerning the right of judicial remedy. Moreover, the renewed mandate faces major practical challenges due to its constrained institutional design. Still, it shows that sometimes, when major international crises force an impasse on the Security Council’s decisions on world peace, in apparently more technical matters, incremental progress remains possible. This should not be underestimated in terms of the Council’s viability and credibility over time, something of great urgency in today’s turbulent international environment. In this post, we will first briefly describe the context in which Resolution 2744 has to be situated, including the background of its adoption. Second, the main features of the renewed focal point mechanism are discussed, assessing its shortcomings and delineating the areas requiring further improvement of the mechanism. We will conclude with an appraisal of this resolution in light of the promotion of the rule of law inside the Security Council.
Context and Background of Resolution 2744
While the move from generic embargoes on whole national economies to targeted sanctions on individuals and entities alleviated many design failures (as comprehensive sanctions were increasingly inefficient and even contra-productive) and injustices on affected populations and third States, they also created new challenges and abuses, especially in terms of rights protections of affected individuals and other legal entities. In particular, due process rights were practically absent as those listed in closed sessions of sanctions committees and in relative secrecy of process, barely knew the reasons for the restrictions on freedom of movement and on their property rights suffered as a consequence of being listed. The story is well-known, and the court rulings that resulted from these situations have been widely analysed by scholars, including in this blog (see here and here, for instance). UN member States’ initiatives, like the Inter-Laken and the Bonn-Berlin processes, increasingly drew attention to these problems. In cooperation with academia, they elaborated proposals to improve UN sanctions. Court rulings, particularly the famous “Kadi saga,” put tremendous pressure on the Council, leading to the creation of the Ombudsperson in December 2009 through Resolution 1904. The establishment of the Ombudsperson by the Security Council has been described as a “paradigm shift”. It was truly revolutionary for an organ which strictly operates under a self-comprehension of being “the master of its own procedure.” The de-listing procedure of the Ombudsperson was even further improved in 2011, bringing it closer to what is generally required by due process standards. The recommendations of the Ombudsperson to delist can now only be revoked if all the members of the Committee agree to do so. Otherwise, the issue has to be decided at the plenary level of the Security Council, following its usual procedures, in what has been termed the “reverse veto” or, more accurately, the “reverse consensus procedure.”
According to strict legal criteria, the de-listing process of the Ombudsperson may remain insufficient, as clarified by courts of law (most clearly and shortly after the adoption of Resolution 1904, see the UK Supreme Court’s Ahmed and Others judgment of January 2010). As its recommendations ultimately remain non-binding, the Ombudsperson cannot be equated to an independent judicial organ. Yet, given the political nature of the Council and the wide legal powers endowed to it by Chapter VII of the UN Charter to fulfil its main responsibility to maintain international peace and security, expectations based on judicial analogies bear the risk of distracting from the importance of actually viable and useful “alternative means of adjudication.” In practice, no recommendation of the Ombudsperson has ever been overridden by the Committee, turning the procedure into an effective remedy, even if not a proper judicial one. The EU General Court has by now recognized the relevance of the Ombudsperson and the possibility of having one’s name removed via that procedure, for instance in the 2016 Al-Ghabra judgment.
The most problematic issue surrounding the Ombudsperson remained its limitation to the Al Qaida and ISIS sanctions regime only. As the case of the Somali citizen Ali Ahmed Nur Jim’ale showed, individuals who have been delisted from the 1267 regime following a recommendation by the Ombudsperson, are still vulnerable as they can be “relocated” to other sanctions committees. Jim’ale was delisted from Al-Qaida sanctions only to be almost immediately “re-listed” in the Somalia sanctions regime (formerly Somalia-Eritrea) due to alleged financial support to Al Shabab, linked to Al Qaida. Another limitation is that the Ombudsperson only has a mandate to receive petitions from individuals, not from entities such as, for instance, the group Syrian Hayat Tahrir al-Sham (HTS), which has taken over power in Syria and features on the list since 2014. As HTS is likely to dissolve or be merged into the Syrian formal army, the absence of petitioning power becomes moot for that specific group, but it does retain relevance from a general rule of law perspective.
Ever since the Ombudsperson was created, there have been calls for further institutional improvement. Several member States have continuously called for the expansion of the Ombudsperson’s mandate to the rest of the sanctions regimes. This call has been recurrently denied or postponed due to major resistance, including by P5 States. Geopolitical tensions between the Western permanent members (P3), on the one hand, and Russia and China, on the other, only augmented the perception that another major change to the Council’s procedures and institutional infrastructure was out of reach. The adverse political ambience notwithstanding, the demands to expand the mandate of the Ombudsperson to all UN sanction regimes continued to be reiterated over the years by the wider UN membership, mostly through the Like-Minded Group on Sanctions and Fair and Clear Procedures. Concrete proposals to improve all UN sanctions in terms of fair and clear procedures have been elaborated by scholars and academic institutions, such as the UN University and the Geneva Graduate Institute – the latter under the leadership of Professor Thomas Biersteker and with the involvement of the authors of this blog. An important suggestion has been to make sanctions’ review mechanisms “context-sensitive”, that is better attuned to the specificities of each type of sanctions, given the important differences between sanctions regimes dealing with non-proliferation of WMD, armed conflicts, or terrorism.
Also driven by a new wave of judicial proceedings on sanctions-related issues, mostly in Europe, the call for fair and clear procedures for all sanctions regimes gained new momentum. In 2022, Resolution 2653, establishing the new sanctions regime on Haiti, mentioned in the preamble the “intent to consider authorizing the Ombudsperson to receive (…) delisting requests.” A year later, the renewal of the Haiti sanctions regime included in its operative part the intention “to support the further development of fair and clear procedures for individuals and entities designated pursuant resolution 2653 (2022), including through the Focal Point for Delisting established by resolution 1730 (2006).” As attempts to expand the Ombudsperson mandate had not succeeded, an alternative path was chosen in considering the renewal, remaking indeed, of the Focal Point, a figure created before the Ombudsperson which unsuccessfully tried to answer to human rights problems of all targeted sanctions. As originally created in 2006, its functions were basically limited to the sending of petitions of sanctioned individuals to the UN Secretariat (the Subsidiary Organs Branch of the SC Affairs Division), which, on its part, forwarded them to the sanctions committees without any assessment or recommendation. The 2006 Focal Point was, therefore, not viewed as an adequate review mechanism and was commonly referred to as a “mailbox.”
The Enhanced Focal Point Mechanism for Delisting
Resolution 2744 (19 July 2024) remodelled the Focal Point Mechanism to make it more due-process compliant. The aim of the remodelling was to address the outstanding due process issues in relation to all UN sanctions regimes other than the Al Qaeda/ISIS one. By revamping the Focal Point, due process for those listed in the other regimes could be improved without extending the mandate of the Ombudsperson beyond the Al Qaeda/ ISIS regime.
The process of the Focal Point Mechanism is, to some extent, patterned upon the process that was developed over time by the Ombudsperson. Individuals who are listed can turn to the Focal Point with a request to be delisted. When such a request is submitted, there is an information-gathering period, a dialogue process and the drafting of a confidential and comprehensive report by the Focal Point that will be shared with the sanctions committee and relevant states. Notably, and different from the Ombudsperson, this report may not include an explicit recommendation.
The enhanced Focal Point is an upgrade when compared to the original mailbox-type-mechanism. It is, however, a less potent body than the Ombudsperson, particularly because of the absence of the power to make recommendations. In fact, Resolution 2744 (2024) has created a two-tiered system for delisting with the Ombudsperson in place for one specific sanctions regime, and the Focal Point for all the other sanctions regimes. Hence, while on the one hand an upgrade, the enhanced Focal Point can also be regarded as a downgrade in that it renders the Ombudsperson, which is the better mechanism from a rule of law perspective, the outlier rather than the norm.
There is also a risk that the efforts to further strengthen the Ombudsperson, as for instance described in the letter of the Group of Like-Minded States on UN Targeted Sanctions of 28 May 2024 (UN Doc. S/2024/412), are sidelined by a focus on the enhanced Focal Point. From the perspective of procedural integrity, it is thus of utmost importance that the processes of the Ombudsperson and the Enhanced Focal Point are harmonized as soon and as much as possible, and that the Focal Point operates in such a way that it integrates the procedures developed by the Ombudsperson in its own working methods.
Conclusion
In a time that seems marked by a retreat from the rule of law, Resolution 2744 offers a modest ray of hope. It shows that sometimes, when high-world politics go through turbulent times, incremental improvements proper to multilateral diplomacy do pay off – in a way, reminding us of codification progresses in the midst of the Cold War. Whether this Resolution will indeed offer effective procedural protection remains to be seen. This will depend on many factors, including the institutional embedding of the Focal Point in the UN system.
Also, Resolution 2744 should by no means be seen as an endpoint. The like-minded states that paved the way for this Resolution will need to continue to hold hands for further improvements, including alignment of the Focal Point with the Ombudsperson. They also need to address other outstanding issues, such as institutionalized periodic assessment of all UN designations, which is crucial to keep listings fit for purpose. In addition, there are important calls for the creation of possibilities for pro bono legal counsel for listed persons, as well as legal assistance to delisted persons to move beyond their past listings. As regards the latter, it is important to recall that after their adoption by the Security Council, sanctions acquire a life of their own through private actors and very powerful global security bodies like the Financial Action Task Force (FATF) and the Global Counterterrorism Forum (GCTF). Sanctions may thus remain in place even after persons have already been delisted from UN sanctions lists. There is therefore a need to address this whole-life-circle of sanctions.
Elected members inevitably play a particularly important role in taking steps to realize such further improvements. It is only through persistent and concerted efforts that elected members of the Security Council, with their tradition of rule of law promotion inside this organ and together with other interested states, can improve the Council’s institutional strength. And institution-building, even if against all odds, is much needed in the geopolitical winter that is setting in.
