5 November 2014
On the 23rd of October, the Security Council held an open debate on working methods. Prior to the debate, the president of the Security Council circulated a concept note which invited member states to consider two issues in particular during the session: the possibility of extending the mandate of the Office of the Ombudsperson to other sanctions regimes, and the establishment of a follow-up mechanism for situations referred to the Security Council by the International Criminal Court. Kimberly Prost, UN Ombudsperson for the Al-Qaida sanctions regime, and ICC Prosecutor Fatou Bensouda briefed the delegates on these issues.
Prost drew attention to the unfairness of existing sanctions policy. While an individual placed on the Al-Qaida list has recourse through the Office of the Ombudsperson, that same individual placed on another sanctions list has no way to question the listing. She underscored that due process is essential to the successful and credible application of sanctions regimes and argued that there is a need for a mechanism at the international level to address concerns.
Following Prost’s remarks, Bensouda observed that there are significant areas of convergence between the sanctions regimes and the work of the ICC, which would benefit from a single focal point to address them. For instance, individuals on the sanctions lists must have their travel bans lifted in order to be transferred to the ICC.
The ICC would further benefit, Bensouda stated, from a designated focal point on the Working Group on International Tribunals to improve coordination between the ICC and Security Council. Bensouda also noted that when the Security Council refers situations to the ICC without providing funds, it impedes the ability of the Office of the Prosecutor to conduct investigations.
Following these briefings, more than forty member states issued statements on the Council’s working methods.
Sanctions and the Office of the Ombudsperson
Reflecting on its experience as the chair of the Working Group on Documentation, Argentina stated that it had not been able to extend due process to all sanctions regimes. Argentina had proposed in the working group that due process be ensured for those placed on all sanctions lists through the office of the Ombudsperson. Nonetheless, Argentina expressed its desire to see due process extended to all sanctions regimes regardless of the mechanism used.
Nigeria argued that all sanctions regimes would benefit from protecting due process, and therefore the office of the Ombudsperson should be extended to all sanctions regimes. Luxembourg and Hungary stated that the mandate of the Ombudsperson must be extended in order to ensure due process in sanctions regimes other than the Al-Qaida list.
The United States, however, argued that the Al-Qaida sanctions regime should be treated differently than other sanctions lists because it targets a non-state entity. The UK agreed that each sanctions regime poses its own unique challenges; the same mechanism is not applicable to all sanctions lists. Russia was concerned that the expansion of the Ombudsperson’s mandate would “dilute” the sanctions regimes.
Speaking on behalf of the group of Like-Minded States on Targeted Sanctions, Norway acknowledged that the Ombudsperson process might not be suited to every sanctions regime. Instead, it called for the mandate of the Ombudsperson to be gradually extended to other sanctions lists on a case by case basis. Norway also proposed that the Ombudsperson be empowered to make decisions regarding the listing or delisting of individuals on the sanctions list; under existing resolutions, the Ombudsperson can only recommend a course of action to the Security Council about individual listings.
Follow-Up on Referrals to the International Criminal Court (ICC)
Nigeria, Lithuania, and Luxembourg drew attention to the failure of the Security Council to respond to a series of letters from the ICC. Emphasizing that executing arrest warrants remains one of the greatest challenges facing the ICC, Lithuania argued that by not taking action to help the ICC execute warrants, the Council indicated that it could not enforce its own decisions to refer situations to the ICC. This undermined the credibility of the Council. On behalf of Costa Rica, Hungary, the Netherlands, Slovenia and Switzerland, Liechtenstein observed that the non-cooperation of states with the ICC reflects poorly on the Court through no fault of its own, and felt that the Council should act as an enforcement mechanism in these instances.
Liechtenstein further noted that the establishment of a mechanism to implement SC referrals to the ICC would be a first step. Poland supported the establishment of a follow-up mechanism. The Accountability, Coherence, and Transparency group (ACT) and Hungary proposed the creation of a subsidiary body to help the SC follow-up on its referrals to the ICC.
Other states, however, felt that a new mechanism for coordination between the SC and ICC was unnecessary. The United States supported the existing working group on Security Council referrals to the ICC as a mechanism for follow-up. Russia noted that the ICC Prosecutor briefs the Security Council twice a year, and claimed that there are already “robust channels” of communication between the SC and ICC.
A few states issued remarks about their concerns with the Court itself. Chad stated that member states should take into account security concerns when considering the deferral of the investigation of high political officials, and urged greater dialogue with regional organizations in making these decisions. Rwanda advised Council members to avoid double-standards in their dealings with African leaders.
Other Concerns
Although the debate emphasized due process in targeted sanctions regimes and a follow-up mechanism for the ICC, member states also took the session as an opportunity to raise other concerns about the Council’s working methods.
Member States from all regions encouraged the French initiative, which calls for the permanent members of the Security Council to refrain from the use of the veto when addressing mass atrocities. Australia and Lithuania felt that the code was essential to ensure the credibility of the Council. Ireland encouraged the permanent members of the Council to agree on a code of conduct by the end of next year.
Liechtenstein observed that two negatives votes had prevented the Council from referring Syria to the ICC, and opposed the “abuse” of the veto. At the same time, it proposed that elected members should also sign on to a code of conduct. Uruguay and Peru expressed support for the French code, but perceived it as a first step toward eliminating the veto altogether.
Although the concept note had indicated that the session would be devoted exclusively to the Council’s working methods, the issue of Security Council expansion was addressed throughout the debate. Germany stated that the structure of the Council must be reformed as well as its working methods; Japan emphasized that the Council must be reformed to reflect contemporary geopolitical realities. The United Kingdom expressed support for an expanded Security Council, but noted that a larger Council would require more efficient working methods.
Several states challenged the very premise of the concept note, arguing that working methods should not be considered separately from reform of the Security Council itself. On behalf of the L69 group of developing nations, St. Lucia stated that the discussion of working methods should be in the context of overall Security Council reform, and called for expansion of both the permanent and non-permanent membership of the Council. Aligning itself with the statement by St. Lucia, India argued that both working methods and Security Council reform should be discussed during the debate. Nicaragua called for expansion in both categories of membership, and Botswana advocated for renewed negotiations on Security Council reform.
Speaking on behalf of the Accountability, Coherence, and Transparency group (ACT), Switzerland stated that the General Assembly should play a meaningful role in the selection of the next Secretary-General, as the Secretary-General does not only represent the Security Council, but the entire United Nations. Costa Rica and Maldives, which are also members of ACT, called for a more transparent and inclusive selection process.
The United Kingdom, Montenegro and Costa Rica felt that the Council should take a more preventative approach to conflict. Lithuania observed that seven out of ten Security Council presidents over the last year had held open wrap-up sessions, and that the number of public meetings had increased by 25%. Algeria and Russia felt that the Security Council’s Annual Report needed to be reformatted to include more analysis.
To read the full statements delivered by member states, as well as the briefings delivered by Kimberly Prost and Fatou Bensouda, click here.