International Criminal Court Prosecutor, Ombudsperson of Al-Qaida Sanctions Committee also Brief Members
In a day-long open debate today that heard from more than 55 speakers, the Security Council considered improvements to the way it followed up on its referrals to the International Criminal Court, as well as the manner in which due process was applied in targeting sanctions.
The Council opened its fifth annual discussion of working methods with briefings by Kimberly Prost, Ombudsperson established pursuant to Security Council resolution 1904 (2009), and Fatou Bensouda, Prosecutor of the International Criminal Court, both of whom laid out ways the 15-member body could enhance its interaction with their institutions and better assume its duties within the international justice system.
The imposition of targeted sanctions — without availability of an independent review body that could deliver effective remedy — was inconsistent with fundamental human rights obligations, said Ms. Prost, whose office evaluates requests for removal from the Council’s Al-Qaida Sanctions Committee List. There was no evident rationale as to why an independent review mechanism was made available to one set of individuals facing targeted sanctions — those on the Al-Qaida list — but not to others.
She said her experience had affirmed that a fair process was essential to the implementation of sanctions with the cooperation of national authorities. She had seen examples of that fact, including a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.
The main challenge to her Office was the absence of substantive reasons for listing and delisting, she said. While a petitioner received much-needed information about the case against him or her through the dialogue phase, the only view into the decision-making process was in those reasons. Unfortunately, there remained a reluctance to provide disclosure.
Along similar lines, Ms. Bensouda supported extending the Ombudsperson’s mandate to all sanctions committees, as almost all of the sanctions regimes that overlapped with situations under investigation by the Court included individuals against whom arrest warrants had been issued.
“There are important areas of convergence between the sanctions regimes and the work of the [International Criminal Court] as a whole, which would benefit from a single focal point to address them,” she said, noting the need to confidentially lift travel bans for persons who had been transferred to the Court. The work of the Council and the Court could similarly benefit from a focal point, which could take the form of a working group for international tribunals.
She voiced concern about the Council’s follow-up on cases it referred to the Court, noting that few of the 55 resolutions on Sudan had been implemented. The Council should consider using stronger language in its referrals, as the Darfur and Libya resolutions had left “a fair amount” of ambiguity as to whether all States were obliged to cooperate. Stronger language related to the privileges and immunities afforded to the Court’s staff and vis-à-vis States that had not responded positively to Court requests for assistance would be helpful.
Throughout the day, speakers expressed differing views on the need to expand the Ombudsperson’s purview to cover all sanctions regimes. While some favoured extending the mandate and safeguards, others cautioned that each regime was different and could require a tailored approach. The representative of Rwanda, echoing remarks by several delegates, supported extending the Ombudsperson’s mandate to all sanctions regimes, saying: “It is just common sense.”
The representative of France, however, urged vigilance in implementing sanctions in the fight against al-Qaida and Daesh, as well as respecting the fundamental freedoms of listed individuals. Each sanctions regime was specific and he supported the creation of a focal point within the Secretariat that could receive delisting requests.
Still others questioned expansion of the mandate altogether. The representative of the Russian Federation expressed concern over the extension of the mandate to other sanctions regimes, as the Office was not always up to the task before it in the context of the fight against terrorism. Rather, it would be more important to enhance existing sanctions mechanisms.
On the issue of cooperation between the Council and the Court, speakers said the relationship demanded “a fresh look,” as the Council had made referrals to the Court, yet failed to act on repeated Court notifications.
The representative of Liechtenstein, on behalf of the informal “Group of Like-Minded States on Targeted Sanctions”, said the Council’s repeated failure to enforce its own resolution that imposed an unambiguous obligation for Sudan to cooperate with the Court undermined its credibility. Creating a follow-up mechanism would be a first step in the right direction.
Many speakers also commented on the more integral aspects of working methods, supporting a French proposal for the five permanent members — China, France, Russian Federation, United Kingdom and United States — to restrain their veto use on decisions aimed at ending or preventing mass atrocities. Driving that point home, the representative of Côte d’Ivoire said it was a consensus resolution in 2011 that brought about an end to the post-electoral crisis in his country. “Imagine if the veto had been used!” he said. “We would be looking back on all the genocide in Côte d’Ivoire.”
Also speaking today were the representatives of Republic of Korea, Australia, Chile, China, Nigeria, Chad, Lithuania, Jordan, Luxembourg, United States, United Kingdom, Argentina, Switzerland (on behalf of the Accountability, Coherence and Transparency Group), Saint Lucia (on behalf of the L.69 Group for Security Council Reform), Costa Rica, Japan, Thailand, Romania, Guatemala, Brazil, Sweden (on behalf of the Nordic countries), Mexico, Netherlands (also on behalf of Belgium), Italy, Germany, Pakistan, Kazakhstan, Nicaragua, Uruguay, Czech Republic, Estonia, Portugal, Indonesia, Iran (on behalf of the Non-Aligned Movement), Malaysia, Norway, Spain, Peru, Morocco, Maldives, Bosnia and Herzegovina, Ireland, India, Egypt, New Zealand, Botswana, Algeria, Poland, Ukraine, Montenegro and Hungary.
The meeting began at 10:07 a.m. and ended at 6:35 p.m.
KIMBERLY PROST, Ombudsperson established pursuant to Security Council resolution 1904 (2009), speaking on the enhancement of due process in sanctions regimes, particularly on the extension of the Ombudsperson mandate to other regimes, said that, although international law continued to evolve, it was clear that the imposition of targeted sanctions without the availability of an independent review mechanism that could deliver an effective remedy was inconsistent with fundamental human rights obligations. In that context, it had been pointed out that her mandate might not go far enough, as decisions of her Office were not binding. However, when its recommendations were followed, it provided a fair process and delivered an effective remedy.
In that light, she said, there was no evident rationale as to why an independent review mechanism was made available to one set of individuals facing targeted sanctions — those on the Al-Qaida list — but not to others. The other regimes did benefit from the Focal Point mechanism, but that mechanism could not function as an independent review mechanism that could deliver an effective remedy. Her experience had affirmed that a fair process was essential to implementation of sanctions measures with the cooperation of national authorities. In her outreach activities, she had seen concrete examples of that fact, including a possible reduction in legal challenges to the application of sanctions at the regional and domestic level. It was clear that, when cases were filtered off to the Ombudsperson process, the fundamental unfairness that provided grounds for the legal challenges was no longer present.
The greatest challenge to the Office of Ombudsperson was the lack of provision of substantive reasons for listing and delisting, she said. While a petitioner received much-needed information about the case against him or her through the dialogue phase, the only view into the decision-making process was in those reasons. Unfortunately, there remained a reluctance to provide disclosure. Regardless of the result of the process, transparency was necessary for fairness. In addition, given the confidential nature of the sanctions process in general, providing such reasons could only serve to enhance the credibility.
An additional challenge, she said, was the fact that, while her Office continued to deliver on its mandate and operate independently, it did so with the good will of all actors. Structurally, the Office did not exist and the current contractual arrangements did not provide institutional safeguards for independence. It was imperative that her mandate was implemented in a manner that was sustainable. She had been called obsessed with fair process; she felt that was an appropriate characterization for someone in her position. The purpose of the sanctions regime was, after all, to safeguard human rights, life and security.
FATOU BENSOUDA, Prosecutor of the International Criminal Court, said she was pleased to see increased cooperation between her Office and the Council on both formal and informal levels. It was important that States parties think proactively about how the Council could work in concert with the Assembly of States parties and the Court to advance crucially important goals.
She supported extending the mandate of the Ombudsperson to all sanctions committees, as almost all of the sanctions regimes that overlapped with situations under investigation by the Court included individuals against whom arrest warrants had been issued. That was true for situations of the Democratic Republic of the Congo, Côte d’Ivoire and the Central African Republic. The biggest exception to that rule had been the Darfur situation: none of the four individuals under arrest warrants had been included in the Darfur sanctions list.
“There are important areas of convergence between the sanctions regimes and the work of the [International Criminal Court] as a whole, which would benefit from a single focal point to address them,” she said, noting the need to confidentially lift travel bans for persons who had been transferred to the Court. The work of the Council and the Court could similarly benefit from a focal point, which could take the form of a working group for international tribunals. It could also make sense to identify a mechanism similar to the Ombudsperson for sanctions regimes, with someone who could help secure resources of the Secretariat, States and other actors to address follow-up challenges on a case-by-case basis.
Follow-up on referrals was a concern, she said, noting that very few of the Council’s 55 resolutions on Sudan had been implemented. If those calling for disarmament of the Janjaweed had been respected, for example, that would have almost certainly impacted her Office’s investigation. She called on the Council to consider using stronger language in its referrals, as the language of the Darfur and Libya resolutions had left a “fair amount of ambiguity” as to whether all States were obliged to cooperate. Stronger language on obligations regarding privileges and immunities afforded to the Court’s staff would also be helpful.
Continuing, she said non-States parties to the Rome Statute that had not responded positively the Court’s requests for assistance were providing a safe haven for people against who arrest warrants had been issued. She urged the Council to use stronger language on that matter, as it played — and must embrace — its crucial role in the emerging system of international criminal justice. If a focal point took the lead on tracking and documenting the whereabouts of such accused persons, for example, and monitored State responses, such information could better inform Council discussions on promoting follow-up. It also could address the question of the Council’s outstanding response to the Court’s findings of non-cooperation.
With that, she said the lack of State or United Nations financing for Council referrals had a real impact on her Office’s ability to investigate the Darfur and Libya situations, underlining the urgent need to revitalize both of those investigations.
PAIK JI-AH (Republic of Korea), citing improvements, noted greater transparency among the subsidiary bodies and enhanced consultations with troop- and police-contributing countries. The Ombudsperson had improved the fairness of the Al-Qaida sanctions regime and she supported further discussion to improve that Office’s independence. In that context, due process and the effectiveness of sanctions must be taken into account. The Court, along with ad hoc criminal tribunals, was the core of the international justice system. Those bodies lacked enforcement mechanisms, which was why the Rome Statute outlined a close working relationship with the Council. The Council’s decisions to refer situations to the Court deserved more practical follow-up. The Republic of Korea was ready to work with others on the modalities of such work, including the establishment of a separate subsidiary body. On working methods, she recalled her Government’s chairmanship of the 1540 Committee, saying it had conducted outreach to improve implementation of resolution 1540 (2004).
GARY QUINLAN (Australia) said the Council must bring more voices from the front lines, particularly civil society. Arria formula meetings had brought significant human rights information to the Council and enabled civil society voices to be heard. Open debates, an expansive approach to Rule 37 and the holding of wrap-up sessions in public contributed to the 15-member body’s dialogue with the broader membership, but the Council must also have meaningful dialogue with troop- and police-contributing countries. He welcomed France’s initiative to restrict the use of the veto in situations of mass atrocity, also drawing attention to an Article 27 provision that a Council member must refrain from voting in a matter in which it is a party to the dispute. The Council had failed to extend its full support to the Court, and therefore, the establishment of a permanent forum with the Council was essential to discuss support for the Court. Australia had improved the transparency of the Council’s sanctions-related activities, including in the committees it chaired on Al-Qaida, the Taliban and Iran. He proposed to convene a briefing during Australia’s Council presidency next month to enable a discussion on sanctions issues.
CRISTIÁN BARROS (Chile), endorsing the statement delivered by Switzerland on behalf of the Accountability, Coherence and Transparency group, said that the Council's working methods had a large impact on the body's effectiveness and democratic operation. Transparency, inclusiveness and accountability were particularly important in that regard. He expressed appreciation for the work of the Ombudsperson and could consider the extension of such a mechanism to other sanctions regimes. On the International Criminal Court referrals, the Council must follow up more effectively on its decisions through more extensive communication with the Court. On Council reform, there should be a serious debate in the General Assembly on the French proposal to limit the veto in the case of serious crimes and enhancement of conflict prevention methods.
WANG MIN (China) said that the Council's working methods had measurably increased in recent years, particularly in the area of transparency and communication with Member States and regional organizations. As the international situation was increasingly complex, continuous improvement was needed, so that the Council could meet the high expectations of the international community. The tools of prevention and mediation should be better used by the Council to promote political dialogue and reconciliation. It was particularly important that all United Nations bodies fulfil their respective mandates so that the Council could focus on international peace and security, and not stray too far into other areas. He underlined also the importance of work towards consensus on all issues, adequate time for delegations to read documents before decisions were made, greater cooperation with regional organizations, serious consideration of extending the Ombudsman, and the need for all referrals to the Court to relate to security issues and respect the principle of complementarity.
ALEXANDER A. PANKIN (Russian Federation) stressed that improvement of working methods, while important, was strictly under the responsibility of the Council itself. He also expressed concern that the Council had been intruding on the competences of other United Nations bodies in its consideration of such issues as health. Preventive diplomacy should be a stronger focus. His country had participated in the group on improving some working methods, such as use of the Arria formula and the format of the Council's annual report, which should provide more analysis in its introduction. On the Ombudsperson, he expressed concern over the extension of the mandate to other sanctions regimes, as the mechanism was not always up to the task before it in the context of the fight against terrorism. It would be more important to enhance existing sanctions mechanisms. On referrals to the International Criminal Court, he noted that the Council was consistently dealing with the problem of impunity and the Court was meant to be a partner in that area. The key problem for the Court was national fulfilment of obligations. There were robust channels for communication with the Court on such issues, but the Council could not automatically take on enforcement of Court decisions, as it had not created the Court, unlike the international tribunals.
KAYODE LARO (Nigeria), associating with the “L.69 Group”, said the Council’s working methods had evolved towards greater transparency and closer engagement with non-members. Yet, there was “considerable” room for improvement, he said, citing the enhancement of due process with sanctions regimes, the latter of which should be employed with clarity vis-à-vis listing and delisting criteria. The Council should place all sanctions regimes under the Ombudsperson’s purview. He strongly supported establishment of a separate office of the Ombudsperson and measures to strengthen its autonomy. On follow-up actions, the Council had failed to respond to the seven letters it had received from the Court’s Prosecutor. It would benefit from a mechanism to handle follow-up action on referrals.
OLIVIER NDUHUNGIREHE (Rwanda), associating with the “L.69 Group”, said the Council had yet to live up to the expectations of the 2005 World Summit, notably vis-à-vis efficiency, transparency and implementation of decisions. He looked forward to progress on the issue of penholders, based on the Council President’s note, S/2014/268, which recognized the right of any Council member to hold that role. Veto use should be reformed on the basis of the French proposal, with the permanent Council members agreeing to refrain from its use in cases of mass atrocities. He supported extending the Ombudsperson’s mandate to all sanctions regimes. “This is just common sense,” he said. Urging the Council to respond to the letters it had received from the Court Prosecutor, he also recalled that requests by African Heads of State and Government made since 2009, requesting the deferral of the case against the President of Sudan, had gone unanswered. Also, Council meetings where the Prosecutor presented the Court’s report were the appropriate forums for addressing situations in Sudan and Libya.
BANTE MANGARAL (Chad), associating with the Group of 77 Developing Countries and China, said listing and delisting criteria, criticized for lack of precision and fairness, had been improved, while the Ombudsperson had facilitated transparency. While the Informal Working Group aimed to improve the Council’s work, there was still a lack of transparency vis-à-vis procedures in the application of sanctions. The Ombudsperson should enjoy greater independence in order to yield greater justice, fairness and transparency. It should be extended to other organizations. On Council referrals, action would help protect civilians during conflict. The Court’s work would deter conflict actors from acting beyond the limits of international humanitarian law. Security considerations must be borne in mind in referring high officials to the Court and the views of regional organizations should be taken into account.
RAIMONDA MURMOKAITĖ (Lithuania) noted that, so far, the number of public meetings of the Council this year increased 25 per cent from 2013, with 7 of 10 of its presidents opting to hold wrap-up sessions. Briefings to the United Nations general membership on the monthly programme of work, as well as end-of-month briefings, had been common this year. The link between the Council and the Court demanded a fresh look and new ideas. While the Council made referrals to the Court, it had failed to act on repeated Court notifications. The Office of Ombudsperson had proven to be an effective mechanism for improving the credibility of steps taken against the Al-Qaida sanctions regime. Those targeted under other sanctions regimes should have the same access to redress mechanisms. On the Council’s annual report, she wondered if spending $2,500 per page was the best use of scarce resources, when most aggregated information was already available online. While the Council’s dialogue with troop- and police-contributing countries had improved, one formal annual meeting with force commanders might no longer be enough. Engaging them more regularly was vital to a transition from numbers-based peacekeeping processes to capacity-based planning. Lastly, she strongly supported France’s initiative on limiting the use of veto in cases of mass atrocities.
DINA KAWAR (Jordan) said that the international community expected a Security Council that was better able to face the increasingly complex challenges of the times, such as those in the Middle East. For that purpose, there was a need to further increase transparency and coordination with the Assembly, with regular meetings of the respective presidents and more open meetings. As implementation of sanctions required cooperation of Member States, communication with States was essential. The Ombudsperson's work had enhanced such communication, as well as credibility and the expansion of the mandate should be considered, while obstacles to the Ombudsperson's work should be removed. Close cooperation between the Council and the Court was also essential; the proposal to establish a follow-up mechanisms on referrals was worthy of consideration in that light.
SYLVIE LUCAS (Luxembourg) said that it was important to increase the flow of information that could strengthen the Council's work in prevention of conflicts. In the effort to prevent mass atrocities, the French proposal to refrain from use of the veto should also be considered. She praised the implementation of the Ombudsperson's position, reporting that it made it easier for her country to cooperate with the sanctions regime. The provisions of resolutions on listing and delisting must be fully abided by, and the mandate of the Ombudsperson should be extended to other sanctions regimes. The Council must improve follow up to the Court’s referrals, including on States' refusals to cooperate with the Court, about which the Court had sent eight formal letters to the Council without receiving a response. Whatever option was chosen to respond to the problem, the Council must act because its credibility was on the line.
Ms. JONES (United States) welcomed discussions on how to implement sanctions in a more effective way. She supported the enhancement of listing and delisting procedures that had been carried out including the focal point procedures and the Ombudsperson. Nevertheless, the Al-Qaida sanctions were unique in targeted individuals in a non-State group that pose a global threat. Therefore, she opposed extending the Ombudsperson's mandate to other sanctions regimes. However, other procedures that improved clarity and fairness should be considered. She welcomed also creative procedures to encourage cooperation with the Court and was willing to consider a mechanism the Council to better follow up on its referrals to the Court.
MARK LYALL GRANT (United Kingdom) said the Council was the most adaptable of United Nations bodies, having interacted with non-governmental organizations and others through formats such as Arria Formula meetings and interactive dialogues. It could develop more interactivity during informal consultations. It also had the scope to cut back its formal agenda to create space for addressing new challenges. Some items on the agenda had not been discussed for 60 years. The Council should do more to follow up on referrals to the Court, he said, stressing the need to hold perpetrators of atrocities to account. He regretted the Council had not responded to the Court’s seven letters, which had been blocked by small group of States that were not parties to the Court. The United Kingdom had strongly supported clear procedures for sanctions regimes. Each regime had specific challenges, which might require solutions tailored to those circumstances. He saw scope to develop the role of the focal point. He strongly supported Council reform and improved working methods, especially as an expanded Council would require more efficient working methods.
FRANÇOIS DELATTRE (France) supported opening the Council to speakers who could inform it on mass crimes, including the Special Adviser on the Prevention of Genocide. On the international criminal justice system, he said: “The Court doesn’t wait for weapons to fall silent before acting.” Interaction between the bodies should strengthen the Council’s follow up on Court decisions. France supported a follow-up mechanism that could be a Council subsidiary body. He urged vigilance in implementing sanctions in the fight against al-Qaida and Daesh, as well as respecting the fundamental freedoms of listed individuals. Regimes should have appropriate safeguards. Each regime was specific and he supported the creation of a focal point for individuals to demand delisting. The Syrian crisis had highlighted the excessive veto use in the Council. France’s President had advocated a code of conduct governing its use and his country had led discussions on a collective, voluntary suspension of veto use in situations of mass atrocities. “We won’t abandon it,” he said.
MARÍA CRISTINA PERCEVAL (Argentina), Council President for the month, turned first to the Council’s working methods, evoking the image of a toolbox. “We have to throw out the ones that are useless and keep the ones that are necessary,” she said, underlining the importance of dialogue and reducing opaque aspects of operation. The Council’s relationship with the Court could not be limited to receiving the Prosecutor’s reports without providing follow-up to the issues she raised. On the sanctions regimes, Argentina had proposed extending the principle of due process through the Office of the Ombudsperson, which had not met with the necessary support. Her Government would continue to support due process in all sanctions committees. The substantive aspects of the Informal Working Group on Documentation and Other Procedural Questions, chaired by Argentina, included issues of openness, “flexible and inclusive” decision-making, strategic action plans and accountability mechanisms.
PAUL SEGER (Switzerland), speaking on behalf of the Accountability, Coherence and Transparency Group, a cross-regional group of 23 States, said that in 2013, only 55 per cent of the Council’s sessions had been made public and its response to requests for open debates remained limited. He supported the proposal for permanent members to voluntarily refrain from veto use aimed at blocking Council action to prevent atrocity crimes. The Council also should adopt a conflict prevention perspective. The Peacebuilding Commission could assume the role of a forum where critical situations were discussed early, in an inclusive manner with all relevant stakeholders. Repeated calls had been made for more transparency in the appointment of the next Secretary-General in 2016. Transparency of that process, as well the implementation of relevant General Assembly resolutions, should be enhanced.
MENISSA RAMBALLY (Saint Lucia), speaking on behalf of the L.69 Group for Security Council Reform, expressed hope that today's discussion would result in concrete steps. The question of working methods must be discussed, however, as part of the overall question of Council reform and not in isolation. If the membership of the Council continued to reflect the post-World War II architecture, not much could be expected in terms of improvement. The Council had not acted to harness fully the capabilities of the wider United Nations membership, which was made evident by its preference for coercive measures that had proved to be counterproductive. The argument that permanent members had the sole right to determine working methods was not valid because the Charter made it clear that the Council acted on behalf of the wider membership. The Council must improve its cooperation with regional organizations such as the African Union, providing assistance as requested by them and "not only when some permanent members deem it in their interest".
MARITZA CHAN (Costa Rica), endorsing the statements of Switzerland and Liechtenstein, said that improvement of the Council's working methods related directly to its effectiveness in conflict prevention and efforts to "get ahead of events" and not merely react in crisis mode. In that light, her country had called for the formal adoption of the Provisional Rules of Procedure. Welcoming the adoption of resolution 2171 (2014), she said that the tools laid out therein for conflict prevention — particularly those regarding acting on warning signs — must be utilized. Horizon scanning briefings, Arria Formula briefings and action on human rights crimes were important in that context. She welcomed France's proposal for a code of conduct around the use of the veto in that light. In addition, she called for a more transparent process of selection of the next Secretary-General. In all those areas, political will was needed to enhance the effectiveness of the Security Council.
STEFAN BARRIGA (Liechtenstein), speaking on behalf of the informal Group of Like-Minded States on Targeted Sanctions , said that that the Council's follow-up mechanisms on the work of the ad hoc tribunals for the former Yugoslavia and Rwanda had been extremely valuable. In regard to referrals to the Court, he stressed that the Council could and should act as a powerful enforcement mechanism. Its repeated failure to enforce its own resolution that imposes an unambiguous obligation for Sudan to cooperate with the Court undermined the credibility of the Council. Creating a follow-up mechanism would be a first step in the right direction. In addition, the veto was part of the United Nations Charter, but was not meant to be used contrary to the Charter's other principles, he said, pointing out that two no votes kept the situation in Syria from being referred to the Court. He reiterated the call on permanent members to refrain from using the veto in situations involving genocide, crimes against humanity and war crimes. A Council "code of conduct" to that end, as proposed by France, could have a preventative function and help the Council stop horrendous crimes from happening in the first place.
YOSHIFUMI OKAMURA (Japan) said that more efficient and transparent procedures were required when the Council made its decisions. It was essential that listing and delisting were conducted on the basis of the principle of due process. Noting that the Council did not have a specific follow-up mechanism in case it referred a situation to the Court Prosecutor, it was appropriate for the Council to find out what measures should be taken through dialogue with interested countries. While improving working methods was important, it was not enough to strengthen the legitimacy of the Council. The geopolitical reality of the twenty-first century had to be reflected, and his Government had a strong desire for Council reform that would make the body more broadly representative, efficient and transparent.
NORACHIT SINHASENI (Thailand) supported the imposition of targeted sanctions on individuals or entities, rather than against a State. An independent, accessible and transparent mechanism for criteria and procedures for the listing and delisting of sanctions was needed and must apply to all Council subsidiary bodies with such powers. The inclusion of individuals and entities on the “List” must be done with utmost care. He encouraged the sanctions committees, Panel of Experts and the Ombudsperson to interact with all relevant parties to refine the process. After sanctions were imposed, effective monitoring mechanisms must be put in place. Determining the end of sanctions opened questions over who would decide whether objectives had been met. Sanctions regimes would not succeed without implementation by States and coordination with relevant stakeholders.
SIMONA MIRELA MICULESCU (Romania) said that on the issue of sanctions, her country, as a European Union member, had acquired substantial experience in balancing security and fundamental rights. According to the European Union Court of Justice, any decision that affected a person individually had to be taken on a sufficiently solid factual basis. Turning to matters related to the International Criminal Court, her Government took the view that it would be a positive step to establish a mechanism on the follow-up of referrals made by the Security Council in accordance with the Rome Statute. A strong coordination between the two institutions was required.
MÓNICA BOLAÑOS PÉREZ (Guatemala) called for full implementation of previous notes concerning the working methods of the Council. In addition, he called for more interaction with the Peacebuilding Commission and countries that contributed to peacekeeping, more analysis in the annual report, more transparency and further discussion of selection criteria for experts of the subsidiary bodies for broad geographical representation. The mandate of the Ombudsperson must be extended by expansion to other sanctions regimes and by serving as a filter during the elaboration of lists and performing other roles in the sanctions process. There should be a forum to discuss all aspects of the relationship between the Council and the Court. When the Council referred a situation it must be prepared for the Court to fulfil its mandate. When the Court did and was then denied cooperation by States, the failure of the Council to act projected indifference in upholding the rule of law.
ANTONIO DE AGUIAR PATRIOTA (Brazil) said that the establishment of an Ombudsperson was a step forward in strengthening due process in sanctions regimes, but more had to be done in that context, including consideration of extending the Ombudsperson mechanism to other regimes. It must always be kept in mind that sanctions were simply a tool at the disposal of the Council "to give effect to its decisions". On referrals to the Court, he said it was critical that the same principles applied equally to all. The expenses of the Court related to referrals by the Council must be met by the United Nations and not fall upon the parties to the Rome Statute, and the Organization must support implementation of its referral decisions. In general, the Council must be more transparent and accountable to the broader membership, with new ways to improve participation of troop-contributing countries, regional organization countries hosting peacekeeping operations and other relevant actors in its decision-making process. In addition, the Council must cooperate better with other United Nations bodies in regard to their respective responsibilities.
PER THÖRESSON (Sweden), speaking on behalf of the Nordic countries, urged the Council to actively consider how due process guarantees similar to the Ombudsperson for the Al-Qaida sanctions committee could be introduced under other sanctions regimes. The informal Group of Like-Minded Countries had repeatedly emphasized the importance of taking such a broader perspective. A gradual approach would yield the best results. Regarding the cooperation between the Council and the Court, an effective follow-up mechanism for referrals by the Council would strengthen international justice and bolster the relevance and integrity of Council decisions. On the issue of penholders, all Council members, permanent or non-permanent, should have a real possibility of drafting and presenting products. The Council’s cooperation with the Peacebuilding Commission could be further developed, given the broad socioeconomic implications for the whole region of the horrendous public health catastrophe in West Africa.
JORGE MONTAÑO (Mexico) said his Government had supported the Ombudsperson’s establishment, as its mandate was essential to address human rights violations of those facing sanctions by the 1267 Committee. Without a review mechanism, State support could be irreversibly eroded. It was important to create an internal mechanism to ensure follow-up to the Council’s referrals to the Court. Thought should be given to the status of people who had been detained, as well as to the protection of victims. Authority should be used exclusively in cases where peace and justice contradicted each other. State cooperation was among the greatest challenges to the Court’s performance, perpetuating impunity for serious crimes. Mexico and France had supported restricting the permanent members’ veto use in cases of war crimes and crimes against humanity.
KAREL JAN GUSTAAF VAN OOSTEROM (Netherlands), also speaking for Belgium, expressed support for strengthening due process in sanctions regimes through a separate and permanent Office of the Ombudsperson whose independence should have more safeguards. Member States should improve their sharing of information and there should be greater transparency in the process of listing individuals and entities. Further, the mandate of the Office of the Ombudsperson should be extended beyond the Al-Qaida regime to all other sanctions regimes. He then stressed the importance of follow-up to the Council’s referrals of situations to the Court, underscoring the need for more frequent interaction between those two bodies. Expanding the mandate of the Informal Working Group on International Tribunals to include the Court could provide that function. In addition, the Court’s Relationship Agreement envisaged that the Court would be reimbursed by the United Nations for costs incurred in connection with referrals from the Council. Finally, in the context of improving working methods, he expressed support for the French proposal for a collective and voluntary code of conduct to refrain from using the veto when the Council made decisions with regard to mass atrocities.
SEBASTIANO CARDI (Italy) commended improvements made by the Council in interaction with Member States and its attention to cooperation with the European Union, but affirmed that more needed to be done. In that context, he proposed regular consultations and detailed reports for the general membership, deeper involvement of regional organizations and other interested parties, more contacts with other United Nations bodies and more interaction with troop-contributing countries and commanders on the ground. There should also be a forum where follow-up on cases referred to the Court was regularly discussed. Concerning the role of the Ombudsperson, ensuring respect for the rule of law and human rights was an essential part of countering terrorism; the Ombudsperson’s work should receive full support and cooperation. In addition, he supported the call for a voluntary code of conduct on the use of the veto in regard to mass atrocities. His country was ready to engage in constructive dialogue on that matter as soon as possible.
HARALD BRAUN (Germany) said that the Ombudsperson for the Al-Qaida sanctions regime set a positive precedent in the context of ensuring high standards of rule of law and transparency in the implementation of sanctions. There was also a need to improve due process in other United Nations sanctions regimes. His Government recommended exploring the possibility of applying procedural safeguards to other sanctions regimes as well. The referral of cases by the Council to the Court was not a one-way street. The Council should establish a follow-up mechanism for the referrals. The form of that mechanism was a topic requiring in-depth discussion. Indicative inputs could come from the Informal Working Group on the International Tribunals for the former Yugoslavia and Rwanda. But those courts were United Nations organs and therefore the working method of the Group could not be copied exactly to the independent Court.
MASOOD KHAN (Pakistan) said that the Council was perhaps the most efficient body in the United Nations, but its effectiveness still needed improvement. He welcomed progress in openness and communication that had taken place in the past several years, but was awaiting full implementation of all related decisions. The Council should consult more closely with the troop-contributing countries so that mandates were adapted to the situation on the ground. For that purpose, mandates could go through two stages of formulation, with the latter agreed upon after troop contributors were identified. The selection process for experts should also be improved. On the Ombudsperson's Office, he said that the mechanism should be extended to other sanctions regimes after necessary improvements had been made. The Council should also have more interaction with the Court on cases referred, with due regard for maintaining the Court’s independence.
KAIRAT ABDRAKHMANOV (Kazakhstan) called for more open meetings of the Council and its greater collaboration with troop-contributing countries. The veto should not be used in cases of genocide, crimes against humanity and serious crimes against international humanitarian law. Fundamental differences in defining perceptions of those acts must be bridged. The incoming non-permanent members should be allowed to attend all meetings of the Council and its subsidiary bodies as well as the informal consultations of the whole during the interim period following their election or at least for the six weeks before the start of their terms. His delegation requested extending the mandate of the Ombudsperson and creating an independent advisory body to provide inputs to the work of the sanctions committees. The Council’s annual report must be more analytical, instead of being a long summary of the year.
MARÍA RUBIALES DE CHAMORRO (Nicaragua), endorsing the statement made on behalf of the L.69 Group, called for improvements in the Council’s working methods to be integrated into a programme of comprehensive reform of the body. It needed to be expanded and become more transparent, accountable and effective through a broad consultative process before decisions were taken and other practices adopted. Improvements should not be merely cosmetic. The trend of holding closed meetings should be reversed. Recommendations made in the Assembly should be circulated widely so that necessary reforms to the Council could be made in time for the United Nations seventieth anniversary.
ÁLVARO CERIANI (Uruguay), endorsing the statement made on behalf of the Accountability, Coherence and Transparency Group, said that some situations with which the Council was seized were not addressed in the Council's annual report, which was established by the same provisions of the Charter that established the veto. He supported the French proposal for a commitment to refrain from the veto in the case of mass atrocities. He also called for resumption of so-called horizon briefings to improve communications on early warning of conflicts. In that same context, the practice of holding Arria Formula meetings should be continued. On listing and delisting of targeted sanctions, he called for discussion on improvement of due process. Court referrals should be made with serious intent and through consistent standards.
EDITA HRDÁ (Czech Republic) said that in the view of her Government, the issue of cooperation between the Council and the Court went far beyond the relations between the Court and the States parties to the Rome Statute. The Council had a special responsibility to close the impunity gap, by making referrals to the Court. Regretting the lack of effective response from the Council to follow-up of its referrals on Darfur and on Libya, her Government encouraged the Council to establish a mechanism to follow up on situations referred by it to the Court. The Informal Working Group on International Tribunals should be tasked to address issues relating to referrals from the Court and the cost of future referrals should be covered by the United Nations, as it was for the Organization’s ad hoc tribunals.
MARGUS KOLGA (Estonia), aligning himself with the statement made by Switzerland on behalf of the Accountability, Coherence and Transparency Group, said that enhancement of transparency in the actions of the Council as well as in its interactions with non-Council members and bodies was paramount in building greater trust in the body that had been given the primary responsibility of protection of human life. For that purpose, more public meetings should be held and more comprehensive records kept. In addition, much more involvement of the United Nations membership was needed ahead of Council decisions. On Court referrals, he said follow-up measures must be implemented with resolve and determination to ensure that the Court’s decisions were executed. He also welcomed the French proposal on voluntary restraint of the use of the veto when mass atrocities are involved. Convening horizon-scanning briefings and Arria Formula meetings would also increase the preventive impact of the Council's work.
ÁLVARO MENDONÇA E MOURA (Portugal), noting that a significant part of the sanctions committees’ work remained invisible, underlined the importance of transparency so that States could better understand the sanctions regimes. The establishment of the Ombudsperson offered a remedy for those requesting delisting. He supported extending that Office’s mandate to other relevant sanctions committees, which would strengthen the targeted nature of those measures and help States in their domestic application of them. On the issue of referrals, he said once the Council used that instrument, it should remain engaged with the Court, especially in cooperation aspects necessary for the Court to perform a judicial function that was prompted by the Council’s own decision. The Council’s wrap-up meetings were a “bold” step in the right direction in promoting a relationship with the wider United Nations membership.
DESRA PERCAYA (Indonesia) said the Council, in line with Articles 31 and 32 of the Charter, must increase regular consultations with non-Council members, especially with States that had special interests in the matters being considered. The Council should also consider States’ ability to implement its decisions. On use of the veto, his country welcomed the early commencement of dialogue among the permanent members on a voluntary code of conduct, particularly wherein all of them would be committed to exercising voluntary restraint in situations of mass atrocities. To further enhance transparency, understanding and coordination between the Council and troop-contributing countries, more troop-contributing country consultations should be conducted, especially before making decisions with regard to establishment, conduct, review, and changes in mandates and the termination of peacekeeping operations. Those consultations should also be conducted when urgent situations that might affect mission operations and the safety of personnel arose. The Council must elevate and strengthen its collaboration with the other United Nations organs given the urgent global challenges that had surfaced in recent years.
GHOLAMHOSSEIN DEHGHANI (Iran), speaking on behalf of the Non-Aligned Movement, welcomed the Council's intention, as stated in the series of notes, to increase involvement of the general United Nations membership in its work. Transparency, openness and consistency were important elements that had been ignored in many instances. He called for the formalization of the Council's provisional rules of procedures, greater opportunities for participation for the Organization’s wider membership in meetings and adequate communication with subsidiary bodies. He rejected any use of the Council for carrying out national agendas. The Council should also stay within its competencies and not encroach on the areas of other bodies, and be more restrained in the use of Chapter VII coercion such as sanctions, which should be used as a last resort, imposed within narrow limits and only after thorough consideration of all impacts. Sanctions were a blunt instrument that often harmed a populace. Finally, he called for more consultation with troop-contributing countries, particularly in the early stages of mission planning.
HUSSEIN HANIFF (Malaysia), associating himself with the Non-Aligned Movement, said there should be more coordination between the Council and troop-contributing countries towards strengthening the effectiveness of peacekeeping operations. Despite a shift from comprehensive economic sanctions to targeted sanctions, there should not be a generalized assumption that targeted sanctions had no impact whatsoever on the broader population of the concerned country, and in certain cases, on neighbouring countries and populations. Welcoming the proposal by the French delegation that permanent members should refrain from resorting to the veto in situations involving genocide, crimes against humanity, war crimes and the crime of aggression, he expressed support for the mandate of the Ombudsperson for the 1267 Committee.
GEIR O. PEDERSEN (Norway), speaking on behalf of the Group of Like-Minded States on Targeted Sanctions, said that related to the Al-Qaida and associated individuals and entities sanctions regime, the creation and strengthening of the Ombudsperson process had been vital steps towards an independent and effective sanctions review mechanism. However, due process concerns persisted. The Office of the Ombudsperson should be made permanent, and in the longer term, be given the authority to decide, after having examined a request for a delisting, whether to maintain or continue the listing. Information sharing between Member States and the Ombudsperson, as well as between the sanctions committees and Member States, national and regional courts, and other authorities, should be improved. Transparency should be enhanced. The Committee must continue to conduct the triennial review in a timely way and regularly inform Member States about its results. The Ombudsperson process should, on a case-by-case basis, be gradually extended to other appropriate sanctions regimes.
ROMÁN OYARZUN MARCHESI (Spain) expressed his delegation’s determination to work with “responsibility and transparency” during its 2015-2016 term as a non-permanent Council member. Responsibility meant contributing towards increasing the body’s effectiveness and building bridges between different sensitivities, while transparency meant paying attention to the concerns of all United Nations members and keeping them abreast of the main issues addressed by the Council. On the issue of due process in the Organization’s sanctions regimes, his Government favored exploring extension of the Ombudsperson’s mandate beyond its current one. Regarding the referral of cases by the Council to the Court, it was worth exploring creation of an interactive mechanism between the two bodies.
AUGUSTO THORNBERRY (Peru), associating with the informal Accountability, Coherence and Transparency Group, reiterated the urgent need to reform the Council’s working methods. It should hold more public meetings and continue to hold wrap-up sessions, as there was great interest in them. Peru was aware of the difficulties of eliminating the veto. As a first step in that direction, it supported a code of conduct that would make it impossible for members to use it in cases of flagrant human rights violations. He hailed France’s proposal in that regard. It also was important to consolidate the practice of consultations with troop contributors, he said, pressing the Council to move from a reactive to preventive focus and adopt a holistic focus on security that was not confined to conflict situations. A preventive diplomacy strategy should be developed.
OMAR HILALE (Morocco) cited the more frequent use of video conferencing, among other initiatives, that had increased transparency of the Council’s work. At the same time, working methods should be improved in the area of cooperation with troop- and police-contributing countries, which must be consulted regularly in order for the Council to make better-informed decisions. He stressed the usefulness of public debates, which must focus on precise themes and have a specific scope, noting that access to the Council’s documents made transparency possible. Beyond practical considerations, improvements to its working methods would allow the Council to better respond to its increasing workload.
AHMED SAREER (Maldives), associating with the informal Accountability, Coherence and Transparency Group, echoed calls for the Council to take note of the recommendations made today and provide a summary of them, with the goal of guiding the Informal Working Group on Documentation. He advocated for the waiver of the right to exercise a veto in cases of mass atrocity crimes, commending France for its proposal to that effect and encouraging all permanent Council members to engage with the Group on exploring that issue further. It was time to finalize a code of conduct on that matter. The time had also come for greater transparency and inclusion ahead of the 2016 appointment of a new Secretary-General. The selection process should reflect the concerns of the wider membership. He supported the Group’s proposal for dialogue between the Council and the Assembly in that regard.
AIDA HODŽIĆ (Bosnia and Herzegovina) called on the Council to fulfil commitments outlined in presidential note S/2013/515 to maintain regular communication with the Peacebuilding Commission. Further, it should intensify informal dialogue with non-members, notably in Arria Formula meetings, and hold more frequent and regular briefings, consultations and interactive dialogue with troop- and police-contributing countries. He supported the proposal for the permanent Council members to voluntarily refrain from veto use in situations of genocide and mass atrocities, and urged more efficient follow-up to its referrals to the Court. Establishing accountability and achieving justice was a precondition for successful peacebuilding.
TIM MAWE (Ireland), associating himself with the Accountability, Coherence and Transparency Group, said that more needed to be done to develop a genuine “culture of prevention”, and that innovative formats such as Arria Formula meetings could trigger fresh thinking on the dynamics of a conflict and inform the Security Council’s necessary response. Unfettered use of veto rights by permanent Council members inhibited the effectiveness of the Council and needed to be reconsidered. Welcoming the initiative for a voluntary code of conduct on the use of the veto in mass atrocity situations, his Government encouraged permanent Members to agree to a statement of principles on a voluntary code of conduct by the seventieth anniversary of the United Nations next year.
ASOKE KUMAR MUKERJI (India), endorsing the statement made on behalf of the L.69 Group, said he had to take issue with the concept note that separated Council reform from the topic being discussed today. Any debate on Council working methods must have reform of the body as its overarching framework, particularly if accountability and transparency were being discussed. Noting that India was the single largest contributor of troops to peacekeeping, he said that the Council was disregarding provisions of the Charter on early consultation of troop-contributing countries before mission mandates were drawn up. That had resulted in a skewed conception of peacekeeping in the Organization to the detriment of peaceful settlements of disputes. In addition, he called on the Council to seriously and transparently take measures available to it to require Member States to implement resolutions on countering terrorism without exception and report on their efforts in a time-bound manner. Finally, he expressed concern over the operation of the Ombudsperson mechanism within the opaque working methods of the Council.
AMR ABDELLATIF ABOULATTA (Egypt), endorsing the statement made on behalf of the Non-Aligned Movement, commended efforts to enhance inclusiveness and openness of Council working methods. Adequate participation of the full membership of the United Nations had yet to be attained, however, as well as better communication, wider distribution of responsibilities, involvement of more Member States in the work and staffing of the subsidiary bodies, and enhanced consultation with troop-contributing countries such as Egypt during the decision-making phases of relevant Council action. He found merit in considering granting the Ombudsperson greater authority so as to make the appeal process similar to judicial proceedings, as well as considering extension of that mandate. Follow-up on referrals to the Court must be addressed in a balanced way, bearing in mind African Union requests and other views. Peaceful settlement of disputes should not be overlooked before resorting to coercive measures.
YOUSSOUFOU BAMBA (Côte d’Ivoire), noting that his country had experienced a post-electoral crisis, said that thanks to consensus in the Council on the issue, a resolution adopted in 2011 had allowed the violence to end. “Imagine if the veto had been used!” he said. “We would be looking back on all the genocide in Côte d’Ivoire.” In that context, he condemned the Council’s inaction before similar situations, due mainly to veto use, and supported a code of conduct on that matter. He encouraged more briefings to be held by the Special Adviser on the Prevention of Genocide, and by the Human Rights Commissioner. He supported the horizon scanning approach and all Arria Formula initiatives on the potential risks for mass atrocities.
PHILLIP TAULA (New Zealand) welcomed the more frequent and flexible use of meeting formats, such as Arria Formula meetings, wrap-up meetings and informal briefings. The challenge now was to ensure those sessions were used for substantive exchanges of views that improved performance and practice. More must be done to enable the Council to perform its most neglected responsibilities: those relating to conflict prevention and peaceful dispute settlement. It was unfortunate that the practice of horizon scanning did not appear to have taken hold this year, he said, stressing that the Council needed mechanisms whereby it regularly planned for emerging threats. He welcomed the high-level review of sanctions and its focus on how implementation could be supported. He also encouraged the Council to create a working group to monitor its referrals to the Court.
NKOLOI NKOLOI (Botswana) said that given the high importance of the Council to all Member States, it was regrettable that the body lacked both geographic and democratic representation of the United Nations membership. Greater accountability, coherence and transparency in the Council's working methods were needed. Welcoming the proposal to extend the mandate of the Ombudsperson to all sanctions committees, he also called on the Council to assume follow-up responsibility for its referrals to the Court. He supported the African position on Council reform as per the Ezulwini Consensus. Africa also viewed the veto as divisive, exclusive and subject to abuse. He therefore welcomed the French proposal on refraining from its use in situations of mass atrocities. He looked forward to the resumption of the intergovernmental process of reform of the Council.
SABRI BOUKADOUM (Algeria), associating with the Non-Aligned Movement, urged more efforts to implement presidential note S/2010/507, among others. Formalizing the provisional Rules of Procedures would be a major step towards improving transparency and openness, he said, noting that private meetings, informal consultations and closed meetings should be kept to a minimum. Public meetings should provide real opportunities and more meaningful exchanges of views with non-Council members, especially those that might be directly affected by the Council’s decisions. It was crucial to enhance cooperation with regional and subregional organizations. Sanctions should be imposed only after all means of peaceful dispute settlement had been exhausted.
PAWEŁ RADOMSKI (Poland) said troop-contributing countries should be involved in the Council’s peacekeeping deliberations to a greater extent. The Council’s sanctions regimes should have fair and clear review procedures to improve the credibility and effectiveness of the parent body. Creation of the Ombudsperson was a right step and the Council should consider extending her mandate to other sanctions committees. Lack of the Council’s follow-up on its own referrals to the Court undermined the credibility of that judicial body. Establishment of a mechanism to implement the Council referrals would be a positive step. Entrusting the Informal Working Group on International Tribunals with that task would be appropriate, as the Group already had necessary expertise. Poland fully supported France’s proposal to limit the use of veto in the cases of mass atrocities.
ANDRIY TSYMBALIUK (Ukraine) welcomed the Council's efforts of the past several years to improve its day-to-day operations. As Ukraine was an active participant in United Nations peacekeeping efforts, he saw further need to adjust the timing of Council decisions on mandate extensions to account for the needs of domestic legislative processes of troop- and police-contributing countries. During the crisis in his country, it had become crystal clear that effective functioning of the Council was dependent on the genuine commitment of each and every one of its members, particularly permanent ones, to the principles of the Charter. The scenario in which one permanent member abused core values and went unpunished must be prevented, he stressed, adding that an important first step would be renunciation of the use of the veto in the event of mass atrocities, as proposed by France. The proposed code of conduct should also, however, prevent the use of the veto power for aggression and it should make operational the provision of Article 27 of the Charter stating that a party in a dispute shall refrain from voting in the Council.
MILORAD ŠĆEPANOVIĆ (Montenegro) welcomed the holding of open and public debates, wrap-up and Arria Formula meetings, and interactive and informal dialogues, all of which had enhanced the Council’s transparency. Yet, there was still room for improvement, especially in the Council’s interaction with the Assembly and in its preventive work. The Council should better use options at its disposal to prevent the emergence of conflicts, he said, noting that horizon scanning briefings could help identify crises before they developed. Only after all means of peaceful dispute settlement had been exhausted should the Council resort to the Charter’s Chapter II provisions. He supported France’s proposal to voluntarily restrain veto use in cases of mass atrocity, stressing that the Council’s ability to effectively respond to such abuse should not be “held hostage” by exercising or threatening that action.
CSABA KŐRÖSI (Hungary), speaking as a member of the Accountability, Coherence and Transparency Group and associating himself with Switzerland and Liechtenstein, said that when the Council referred cases to the Court, it was the Council’s responsibility to follow up. A permanent internal mechanism for this purpose should be created. Ensuring criminal accountability was a top priority for peace and security, and failure to act would only invite further atrocities. Crimes committed by the Islamic State in Iraq and the Levant/Sham (ISIL/ISIS) most probably amounted to war crimes and crimes against humanity. On the subject of the sanctions committees, his Government was ready to support the initiatives aimed at further enhancing due process in those bodies.