The Ombudsperson has submitted to the President of the Security Council her 10th Report[1], summarizing her activities covering the period from 1 February 2015 to 13 July 2015[2]. If this report is quite interesting, it is not because the observations or conclusions in this report demonstrate a real novelty compared to those recorded in previous reports made, but because this document comes at a key moment: the fifth anniversary of the Office of Ombudsperson, which is also the scheduled date of the replacement of the Ombudsperson. Thus, it is time for an assessment to be made by the “outgoing” Ombudsperson herself, and this assessment deserves special attention, both regarding her findings on the activity related to delisting requests submitted by individuals or entities and the procedure established in this regard (I), and those concerning the fundamental question of the Statute of the Ombudsperson – including independence – and unexpected difficulties related to her replacement (II).
- OVERALL ASSESSMENT OF THE OMBUDSPERSON AND COMMENTS ON THE PROCESS OF DELISTING CASES
The Office of the Ombudsperson, established pursuant to Security Council resolutions 1267 (1999) and 1989 (2011), is charged to review the delisting requests submitted by individuals and entities listed as persons associated with Al-Qaida, according to a procedure that evolved over the years[3]. As a result of this establishment and implementation, a fair and accessible recourse has been made available at international level to persons and entities listed by the Al-Qaida sanctions Committee. Thus, the Ombudsperson has authority to protect individual rights, as well as to strengthen the global efficiency and credibility of the regime of sanctions against Al-Qaida, which is obviously a way to participate to the protection of the fundamental rights for Life and Security[4].
In this perspective, it is observed by the Ombudsperson in her report that, since its creation, the Office of the Ombudsperson has regularly been used: it has received 64 delisting petitions and has submitted 59 comprehensive reports to the Security Council Committee (possibility being made to communicate this report to the “interested States” – designating State, State of nationality, residence or incorporation – which are not Committee members States), she has resolved 56 cases through the Ombudsperson process or through a separate decision of the Committee and in the 52 cases fully completed through the Ombudsperson process, 39 individuals and 28 entities have been delisted, as it can be checked in the “status of cases” annexed in the 10th Report.
The number of applications to date, 64, shows that the mechanism is clearly needed, and that the design of the process and the approach to implementation by the Ombudsperson have generated confidence in the mechanism. The Ombudsperson writes in her report: “all of the decisions made by the Committee on delisting petitions during the reporting period were premised solely on information gathered by the Ombudsperson and followed her recommendation. In no case did the Committee take a decision by consensus contrary to the recommendation, and no matter was referred to the Security Council”. It is as well significant, in this respect, that the cooperation of States with the Office of the Ombudsperson is stronger and stronger: indeed, almost all States do provide a response to requests for information presented, and all designating States and States of residence/nationality do reply in all completed cases. Concerning the issue of access to confidential or classified material – which is essential for the Ombudsperson to act properly and efficiently -, it is still a significant challenge, but progress is being made in addressing this problem : the list of “partner-States” has expanded, and formal agreements or arrangements have been entered into with 16 countries (Australia, Belgium, Costa Rica, Denmark, Finland, France, Germany, Ireland, Liechtenstein, Luxembourg, New Zealand, the Netherlands, Portugal, United Kingdom of Great Britain, Northern Ireland, Switzerland and recently Austria), knowing that even if some States have confirmed that they are unable to enter into an information-sharing agreement – for legal and policy reasons -, it is nevertheless possible for them to consider providing information on an ad hoc basis, and the Ombudsperson makes no secret that in practice, “confidential information of relevance is provided outside the framework of an agreement”.
Concerning the review process – although there are limited requirements for the submission of a delisting request and only a few rules governing the entire process[5] -, it has also evolved over time, in a way which, according to the Ombudsperson, confers undoubtedly more coherence and efficiency to it. The mechanism is indeed easily accessible, (legal representation is not compulsory, and in practice, in only 32 cases of the 64 examined, the petitioner was assisted by a legal counsel). Moreover, the petitioner has to know the case against him and to be aware of the substance of this case, to be able to respond to this case. During the dialogue phase, there is a real dialogue between the Ombudsperson and the petitioner – the Ombudsperson and her Office try to interact with all petitioners during the dialogue phase of pending cases, including through e-mail exchanges, telephone discussions and face-to-face interviews, and if possible the Ombudsperson tries to travel to interview the petitioners in person – and this is an opportunity for the petitioner to understand and respond properly the case and be heard by the decision-maker through the Ombudsperson’s comprehensive report. This information given to the petitioner is of course essential to consider the process as fair and effective, and also the interaction with this petitioner is a good way for the Ombudsperson to assess the validity of the petition and the credibility of the petitioner. In the same spirit, fixed deadlines for all the procedural stages do really help the process to be successful and contribute considerably to the credibility of the review mechanism and the external perception of this quality. It is also particularly true regarding the reasons for delisting or retention accompanying the decision taken by the Security Council. This compulsory transmittal of reasons (which must be done by the Committee to the Ombudsperson within 60-day deadline, since Security Council resolution 2161 (2014)) must be effective, whatever the final decision – delisting or retention – might be. According to the Ombudsperson, this rule contributes to remove any suspicion of arbitrary power pressing on the procedure, and increases a certain transparency. Finally, the Ombudsperson notes that since the adoption of Resolution 2161 (2014), the final report can be communicated to “interested States” (designating State, but also State of nationality, residence or incorporation) – if they ask for it and if the approval of the Committee is given-, what increases once again the transparency towards these States and strengthen the authority of the decision finally made by the Committee.
The Assessment is however not completely positive, and there is no doubts about the procedural improvements which are needed and which are strongly underlined in the Report of the Ombudsperson. First, transparency is not complete: it could be strengthened by expanding the notion of “interested State” to any State from which information is sought or provided in the case concerned. The applicant should also be allowed to consult the comprehensive Report, so as the public (judges and academic authorities), after having modified the content of this comprehensive report, particularly with respect to sensitive or confidential information possibly contained (any issues of confidentiality which arise could easily be addressed through redaction). Moreover, contrarily to what was claimed by the Ombudsperson in many reports she made – aiming to make her function more consistent and efficient -, the responsibility for conveying requests for humanitarian exemptions within the Al-Qaida sanctions is still not assigned to the Ombudsperson. This essential process remains in the hands of the Focal point, what, despite the diligent efforts of this later, the Ombudsperson considers as unduly complex, inconsistent and inefficient. She explains that “the Committee’s procedures for considering requests for humanitarian exemptions are complex in nature and the process becomes confusing for an individual who has no exposure to the working methods of the Secretary Council, so that it seems counterproductive to further complicate the scenario by having two different authorities within the regime addressing various requests which relate to the same listing”. The question of the reasons for delisting or retention accompanying the final decision made by the Security Council also remains subject to criticism. Indeed, in her 10th Report, the Ombudsperson deplores the fact that reasons are insufficient where delisting is pronounced – attempting the regularity and fairness of the process – following the absurd argument advanced that “in delisting cases the petitioner do not require substantive reasons in that he has already received a fair process through the result” ; according to her, a fair process – by its nature and nomenclature – relates not to the result achieved, but to the fairness of the process by which the outcome was attained, and – to this end – a reasoned explanation for the decision taken is relevant and necessary to fairness. This is also true for retention cases; there are still concerns which arise with respect to reasons, in the eyes of the Ombudsperson: “as the listing is maintained on the basis f the recommendation of the Ombudsperson, which in turn is premised on the analysis contained in the comprehensive report, it is crucial for the fairness of the process that the reasons provided be consistent with the observations, analysis and findings of the Ombudsperson. The reasons must also properly convey the comprehensive nature of the report submitted and address all of the arguments advanced by the petitioner in the delisting petition and through exchanges with the Ombudsperson”. Finally, the Ombudsperson considers that, given the structure of the Ombudsperson process, responsibility for providing reasons, in both delisting and retention cases, should be entrusted to the Ombudsperson, with appropriate safeguards regarding the release of confidential material, except in the case of a Committee reversal or a security Council decision, where the Committee or the Council should be respectively accountable for the reasons. In her idea, only this structure would properly reflect the process as a whole and would significantly enhance its fairness, transparency and efficiency. Lastly, the budgetary issue remains central and always delicate, and directly influences quantitatively the human resources and staff in the Office of the Ombudsperson.
Still, beyond these negative aspects or necessary “improvements” concerning the activity and procedure, major criticisms and fears of the Ombudsperson do rely on her status, particularly the independence of the Ombudsperson which has been highlighted at the time of her replacement.
II. PROTECTION OF THE INDEPENDENCE OF THE OMBUDSPERSON AND QUESTIONS AROUND THE TRANSITION PHASE
In its resolution 1904 (2009), the Security Council decided that “when considering delisting requests, the Committee shall be assisted by an Office of the Ombudsperson“, which meant probably, beyond the appointment of an Ombudsperson – whose guarantees of sustainability and independence were already limited[6] -, that structural measures had to be taken quickly into the United Nations, including strengthening the independence of this institution and enabling it to fully integrate the structure of the United Nations itself. However, despite the numerous requests of the Ombudsperson in her successive reports, and despite the content of the resolution 2161 (2014) by which the Security Council emphasized its original intention by requesting the Secretary-General to continue to strengthen the capacity of the office of the Ombudsperson to “ensure its continued ability to carry out its mandate in an independent, effective and timely manner”, no institutional provision was ever made for this. So, the independence of the Ombudsperson could be analyzed as seriously compromised, what would compromise the exercise of her mission, writes the Ombudsperson in her 10th Report. In April 2014 and 2015, the Group of like-Minded States on targeted sanctions had stressed this issue[7], regretting the lack of autonomy of the Office regarding the budget, recruitment and personnel management, and calling in particular to attribute a permanent status to the Ombudsperson, as well as to review the contractual provisions applicable. This last point is indeed sensitive and has original effect because, from the beginning, the General Secretariat relied upon a consultancy contract to fulfill the requirements of successive resolutions relating to the Ombudsperson – no consideration has been given by the Security Council Affairs Division of the Department of Political Affairs to adopting another form of contractual arrangement in order to alleviate the problems which have been identified or to change the function into a real internal structure of the office inside the Organization – until January 2013, where the application of guidelines developed exclusively for the recruitment and administration of the consultants who serve as experts on groups/panels assisting sanctions Committees was extended to the Ombudsperson. Considering this, several complaints are made by the Ombudsperson in her report about her status: on the one hand, she criticizes the turn to a consultancy contract to make the Ombudsperson act and she calls for a structural institutionalization of the function within the UN, on the other hand, however, noting that contractual status, amended in 2013, is aligned on that of the experts, she regrets not having been informed or consulted as for this change, and especially notes that “the guidelines were applied without consideration as to their appropriateness for the Ombudsperson given the unique role of the position and its fundamental differences from the experts panels in all core respects”. Further, she discloses that the new provisions of the contract are incompatible with the independent status of the Ombudsperson, and demonstrates this through the obligation of certification of her office by the Security Council Affairs Division of the Department of Political Affairs: obviously, this certification implies that “the performance of the Ombudsperson is subject to an evaluation with reference to undefined conditions by unidentified officials within the Division of the United Nations responsible for supporting and assisting the Security Council and the Al-Qaida sanctions Committee, including with respect to the imposition, enforcement and implementation of sanctions. These are the very bodies in relation to which the Ombudsperson must maintain independence. In the absence of certification, the Ombudsperson will not be paid“. Similarly, she deplores that the general terms of consultancy contracts prohibit any participation by the Ombudsperson in management functions with respect to budget, resource and staff issues and even selection process and concludes “therefore, the contract pre-empts the structural establishment of any form of Office of the Ombudsperson, independently managed by the Ombudsperson, as foreseen by the Security Council”. During the last period, the Ombudsperson has recounted at least two incidents in this regard that – albeit minor in practice – illustrate the fragility of the independence of the Ombudsperson, under this inadequate contractual and administrative status. The Ombudsperson therefore recommends, in addition to the broader changes to this contractual and administrative structures, an urgent consideration to be given to “transferring administrative responsibilities for the Ombudsperson and the related support positions of Administrative assistant and Legal Officer to another part of the Organization not directly related to the work of the Security Council, sanctions panels or sanctions more generally”.
But the highlight of the criticism of the independence was achieved this summer, when it came to replacing the current Ombudsperson, Ms. Kimberly Prost. Indeed, the guidelines developed for the experts serving on panels impose a five-year contractual limitation, which has been retroactively applied to the Ombudsperson, and, on this basis, the Secretariat has initiated a process for the replacement of the Ombudsperson. This, apparently, surprised the Ombudsperson who recalled that, in resolution 1904 (2009), responsibility for the appointment of an Ombudsperson – i.e. a person with sufficient skills and experience who could perform the duties of Ombudsperson -, in fulfillment of the Security Council mandate, rests with the Secretary-General, in close consultation with the Committee. She also insisted on the fact that it should be ensured that no pending cases will be prejudiced by the transition and that there will be no damage to the fairness, effectiveness or credibility of the regime. And following this, she twice presented to the Security Council, a transition plan, which, with a minimal two-week extension of the incumbent, would have provide all the necessary guaranties. But, the Security Council Affairs Division has preferred to choose the rigid application of the five-year contract limit, and has finally refuted such an analyze. Considering this, Ms Prost has declared that “precedence has explicitly been given to this administrative arrangement over ensuring the rights of individual petitioners, preserving the fairness of the Ombudsperson process, protecting the security interests of the regime and safeguarding the credibility of the Security Council mechanism”. In this perspective, she was supported by the informal group of like-minded States on targeted sanctions, which had addressed a letter to the President of the Security Council, in June, in which the group focused “on the short- and medium-term challenges regarding the transition in the Office of the Ombudsperson”, explaining that “it is indisputable that such a transition has to be accomplished in an orderly and timely fashion that neither leaves the office a single day unoccupied nor may render an unfinished delisting case vulnerable to claims of a lack of due process”[8]. Anyway, at the time of reporting, – which was also the last day of the mandate of Ms Prost as the Ombudsperson -, no replacement had been appointed by the Secretary-General, no extension had been granted and no alternative transition plan had been out in place…, which amounted to the leaving-Ombudsperson to conclude dramatically that “fair process mechanism will be rendered non-functional for an unknown period; the potential damage to pending cases will be dependent on timing”. The reality of the situation seems however a little bit different, since – even if it would be too much to speak about a “happy ending” -, on July the 13th, the Secretary-General appointed Ms. Catherine Marchi-Uhel, as the new Ombudsperson, and asked her to start office by July the 27th. If one can deplore a “vacancy”, this one has been limited to 14 days, and it must still be noted that those 14 days were days of installation of the new Ombudsperson, not days without an Ombudsperson appointed, which is an essential difference. Furthermore, this appointment seems more than serious and the new Ombudsperson seems really to be a “qualified” person: indeed, Ms. Marchi-Uhel previously served as Head of Chambers at the International Criminal Tribunal for the Former Yugoslavia (ICTY). From July 2014 to April 2015, Ms. Marchi-Uhel was seconded to the United Nations Mission in Liberia (UNMIL) as Principal Rule of Law Officer, advising the Special Representative of the Secretary-General and the Deputy Special Representative of the Secretary-General for Rule of Law on justice and security matters. Ms. Marchi-Uhel has also served as a full-time international judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and was a Senior Legal Officer with the ICTY Appeals Chamber. In addition, she served as International Judge of the Pre-Trial Chamber of ECCC, Reserve International Judge of the Supreme Court Chamber of ECCC and International Judge with the United Nations Mission in Kosovo. Ms. Marchi-Uhel also worked in the French Ministry of Foreign Affairs, Legal Affairs Division, Human Rights Section. The resumption of the Ombudsperson’s functions seems also effective and of quality, so that one might think that the continuation of the mission of the Ombudsperson is properly taken back.
Nevertheless, the events linked to the replacement of the Ombudsperson – traced in the 10th report, and thus made public – still damage the credibility of the mechanism. As bitterly emphasizes the now former Ombudsperson in this famous 10th report “finally, the fact that the transition has been carried out without consideration of pending cases and the possibility of a gap in functionally affects the credibility of the mechanism as sustainable independent review mechanism. In particular, it raises issues as to its autonomy if it can be rendered non-functional by actions of the Secretariat in circumstances where that result was foreseeable and preventable” and it is true that this unfortunate episode shows how little protection is given to the independent review process by the existing structural arrangements. Let us hope that the new Ombudsperson will address this vulnerability, firmly arguing for a change in the contractual and administrative arrangement governing the Ombudsperson, for the establishment of institutional safeguards and a review of how to replace the incumbent. As correctly pointed out by the former Ombudsperson in her last report: “when mechanism involves fundamental rights and is time-bound, the transition process should be approached with flexibility and priority must be given to the protection of the rights and to preservation of the fairness of the proceedings.“
[1] S/2015/533 (See http://www.un.org/fr/sc/ombudsperson/).
[2] Pursuant art. 20 c) Annex II of the Resolution 2162 (2014).
[3] See Lisa DUMOULIN « Black Lists et gel des avoirs : bilan et perspectives du Médiateur du Comité 1267 des nations unies », in RSC n°1 janvier-mars 2013, page 23.
[4] See Lisa DUMOULIN « Les droits fondamentaux et le gel des avoirs dans le cadre des mesures antiterroristes », in « Droits fondamentaux, ordre public et libertés économiques » directed by F. Collart Dutilleul, ed. Intsitut Universitaire Varenne, coll. Colloques et Essais 2013 page 89.
[5] See Lisa DUMOULIN « Black Lists et gel des avoirs : bilan et perspectives du Médiateur du Comité 1267 des nations unies », espec. page 30.
[6] See Lisa DUMOULIN « Black Lists et gel des avoirs : bilan et perspectives du Médiateur du Comité 1267 des nations unies », espec. page 40.
[7] S/2014/286 and then S/2015/459.
[8] S/2015/459.