Playing Fair With Sanctions: Is There a Method to the Madness?
by Enrico Carisch
Criticisms over a lack of fairness of United Nations sanctions and inconsistencies in their application are frequent and routine — and not without justification. For decades, human-rights experts have pointed to the paradox that unreliable practices, in the words of one expert, render „the UN sanctions system noncompliant with the UN’s human rights standards.“
This unacceptable paradox is mostly due to unbridled power-politics played by the permanent-five members (P5) of the Security Council — Britain, China, France, Russia and the United States — who blunt the aspirations of the 10 elected members to correct these failures.
According to a new study by United Nations University, a wave of „47 fair process challenges to UN sanctions from 12 jurisdictions“ clog courts, revealing how often individuals and companies are confronted with an assets freeze or travel ban despite questionable evidence.
Due process standards are intended to regulate how violators are listed for targeted sanctions measures and how to remove them from such lists. A major improvement was the establishment of an independent and impartial Office of the Ombudsperson in 2009, tasked with reviewing delisting requests from UN sanctions. Never loved by the P5 and because of internal personnel shifts, the office has been vacant since August 2017.
Ideally, due process is reinforced with solid evidentiary standards that help UN experts conclude who may have violated sanctions. The standards are also strengthened by reliable methodologies for the work of experts and delegations of the Security Council’s sanctions committees. Periodic lapses in methodology or evidentiary standards — caused in almost in all cases by pressure from the P5 — leave concerns about due process, sometimes in seemingly inconsequential contexts.
One recent example is the methodology section of reports by the panel of experts on South Sudan. The experts regularly omit that there is actually no arms embargo in place in South Sudan, a result of an unresolved standoff between the proponents — Britain and the US — and Russia on the opposing side.
This presents peculiar challenges to the experts‘ work because their arms specialist is nevertheless mandated to „gather, examine and analyse information regarding the supply, sale or transfer of arms and related materiel, including through illicit trafficking networks.“
The obvious contradiction of monitoring illicit trafficking without an arms embargo opens up unprecedented complexities that should be addressed with a tailored methodology. So far, readers of the reports by the South Sudan expert group must guess the basis in which the arms expert categorizes trafficking networks as licit or illicit and which networks should be reported or not.
Not surprisingly, in the experts‘ most recent report (S/2017/326), „networks“ are variously described with adequate factual information or a tangle of innuendo. For example, a series of paragraphs describes a possible attempt to sell Panthera armored vehicles to South Sudan by a company based in Cairo. In one paragraph, the allegation is debunked by two unspecified „sources“ claiming that the alleged transaction was part of an embezzlement scheme. The expert declares in the next paragraph that the role of Egypt in the conflict of South Sudan was „a frequent source of tension in the region.“
Yet nothing in the report justifies the leap from conjectures about a private company’s activities to the expert’s swipe at Egypt. When the report was published, the Egyptian delegation at the UN was justifiably enraged but received little sympathy from the P5.
It is an unfortunate reality that allegations based on unsubstantiated affiliations or circumstantial evidence are found in UN expert monitoring reports more often than they should.
The most recent case is found in the latest report of the expert group on Yemen. On the one hand, the experts say of ballistic missiles fired by Yemen’s Houthi fighters into Saudi Arabia that „as of yet, [they have] no evidence as to the identity of the supplier, or any intermediary third party.“
Yet in the next paragraph, the experts cite „the Islamic Republic of Iran as non-compliant with the UN sanctions.“
The experts base their allegation on the routine, technical recapitulation (paragraph 14 of Resolution 2216) found in many sanctions resolutions that reminds all countries to „take the necessary measures to prevent the direct or indirect supply, sale or transfer of embargoed goods to targeted individuals and groups.“ Because no enforceable norms defining „necessary measures“ are spelled out, this provision has never been used in 20 years of UN sanctions to accuse a member state of negligence.
Nevertheless, 11 of the 15 members of the Security Council recently went along with a British draft of a resolution that reiterated the experts‘ contrived allegation that the „Islamic Republic of Iran is in non-compliance.“ Perhaps unaware of the potential risks to future sanctions of embracing aberrations of evidentiary norms, the 11 members joined Britain, forcing a Russian veto and then a different vote to adopt a more balanced Russian-authored resolution.
That resolution does not mention the poorly substantiated missile issue, but it correctly calls out the preponderance of evidence for the heavy humanitarian price Yemenis are paying for the Saudi bombardments on civilians.
Deteriorating methodologies reverberate throughout the structure of sanctions implementation and monitoring, as illustrated by the Libya sanctions. After the well-designed Resolution 1970 was turned into the controversial regime-change and no-fly zone Resolution 1973 in March 2011, the situation in Libya turned into a humanitarian calamity. This tragic turn of events required the Security Council in 2014 to add a sanctions-designation criterion for violators of human rights and international humanitarian law.
Yet no expert with the requisite human-rights training has ever been appointed to the Libya expert group. Given the inherent complexities of human rights and international humanitarian law investigations in conflict regions, the question remains how the experts should develop evidence against potential abusers of human rights and humanitarian law.
Perhaps the Ombudsperson vacancy and random interpretations of evidentiary standards and working methodologies are symptomatic of creeping neglect by Council members or simply a sense of being overwhelmed by the due process challenges to UN sanctions?
Concrete ideas to improve clear and fair procedures throughout the UN’s sanctions system exist. In addition to reanimating the Ombudsperson office, advocates of due process should also focus on preventing innocent individuals, companies or state officials from being targeted in the first place.
The table below summarizes ways to enhance the implementation and monitoring system of sanctions. (The table is annexed to the assessment report that the Australian government supported financially.)
This article introduces a new column, P5 Monitor, looking at how the permanent members of the UN Security Council — Britain, China, France, Russia and the United States — handle UN sanctions.
|Situation||Responsible sanctions actors||Due process requirements|
|Start of mandate||Expert group, sanctions committee||Develop and adopt evidentiary standards, working methods for collection and handling of evidentiary material, as well as reporting standards|
|Decision to initiate a specific monitoring/ investigation||Expert group, sanctions committee||Credible prima facie information must meet reasonable standards that justify experts’ inquiries and information requests
Consider all exculpatory information
|Monitoring or investigations of specific situations||Expert group, sanctions committee||Verify prevalence of evidence
Review exculpatory information
Ensure right of reply is provided to target, while taking all precautions to preserve the effectiveness of an eventual asset freeze and respecting any Member State’s national security prerogatives
Ensure evidence for culpability meets expert groups’ methodology standards
|Reporting of findings||Expert group||Report all pertinent evidence, including exculpatory information
Report substance of replies by target
Describe conditions under which the right of reply was granted
|Consideration of expert group reporting and evidence in confidential annexes||Sanctions committee||Verify that presented evidence was collected in accordance with United Nations and experts’ own methodologies and standards
Verify authenticity of reported evidence
Verify that right of reply was granted and exercised
Verify that efforts were undertaken to seek and report exculpatory information
|Post-designation||Sanctions committee||Ensure that target is informed about designation
Ensure that target is advised about opportunity to communicate new information to the expert group
|Ensure that target is aware of Focal Point and Ombudsperson
Ensure periodic review of designation criteria
|Petitions to Focal Point/ Ombudsperson||Sanctions committee||Ensure that relevant expert group is consulted Communicate decisions and their reasons to target|
|Granting of exemption||Sanctions committee||Ensure that relevant Member States inform law enforcement organizations and related organizations about specific exemptions|
|Post-designation monitoring||Sanctions committee, expert group||Maintain continual monitoring of designee to ensure that reasons and criteria for designation remain valid|
|Delisting||Sanctions committee||Ensure that delisting decision is communicated to all relevant Member States
Ensure that all relevant United Nations documents reflect the delisting
Enrico Carisch is the co-author of the just-released book „The Evolution of UN Sanctions: From a Tool of Warfare to a Tool of Peace, Security and Human Rights.“ He is also a co-founder and partner of Compliance and Capacity Skills International (CCSI), a New York-based group specializing in all aspects of sanctions regimes (http://comcapint.com).
Among other organizations, Carisch has worked for the UN Security Council as a financial and natural-resources monitor and investigator on sanctions violations by individuals and entities in Africa and elsewhere. Previously, he was an investigative journalist for print and TV for 25 years.