1. Analysis of information in the context of delisting requests
A recommendation by the Ombudsperson that the Security Council ISIL (Da’esh) and Al-Qaida Sanctions Committee consider delisting the name of an individual or of an entity from the ISIL (Da'esh) and Al-Qaida Sanctions List or that it retain such name on that list depends on whether, based on an assessment of the information gathered, the Ombudsperson is satisfied that there is sufficient information to provide a reasonable and credible basis for the listing at the time of review.1
1.1 Association with ISIL (Da'esh) or Al-Qaida
Reaching such a recommendation requires an analysis as to whether the information gathered evidences to the above standard acts or activities which indicates that an individual, group, undertaking or entity is associated with ISIL (Da'esh) or Al-Qaida and eligible for inclusion in the ISIL (Da'esh) and Al-Qaida Sanctions List.2
The listing criteria include: (a) participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of;3 (b) supplying, selling or transferring arms and related materiel to; and (c) recruiting for; or otherwise supporting acts or activities of ISIL (Da'esh) or Al-Qaida or any cell, affiliate, splinter group or derivative thereof.4
1.2 Membership, participation in ISIL (Da'esh) or Al-Qaida
It is evident from this formulation that while an individual’s membership5 or participation in ISIL (Da'esh) or Al‑Qaida as organisations would result in the retention of his or her listing, they are not required for that individual to fall within the Security Council listing criteria. Furthermore, individuals can be considered as "associated with" ISIL (Da'esh) or Al-Qaida by serving as members or agents of a group, undertaking or entity listed on the basis of its association with ISIL (Da'esh) or Al‑Qaida, irrespective of whether that group, undertaking or entity is exclusively dedicated to terrorism.
When the information gathered is relevant in whole or in part to an individual’s association with a listed entity, the analysis of such information must focus on the actions of the individual and not just on the association alone. This would be the case for example where an individual’s association was limited to humanitarian work. Inferences as to the conduct relevant to the listing can be drawn from the context of the association.
1.3 Mental element required for retaining the listing
Specific intent by an individual is not required for the Ombudsperson to recommend retaining a listing under the ISIL (Da'esh) and Al-Qaida sanctions regime. This is because of the preventative nature of the sanctions measures, which are not subject to criminal standards set out under national law. At the same time, the measures are not directed at unintentional or inadvertent association with ISIL (Da'esh) or Al-Qaida by an individual. When considering an individual’s acts of support to ISIL (Da'esh) or Al-Qaida or any associated entity, the Ombudsperson will recommend to retain the listing if there is information to demonstrate, or from which inferences can be drawn, that the individual knew or should have known that this would be the case. Similarly, the Ombudsperson will recommend retention if the individual acted with conditional intent (dolus eventualis), i.e. in the knowledge and acceptance that his actions could lead to one or more of the behaviours targeted by the resolution, for example recruitment or other support for ISIL (Da’esh) or Al-Qaida.
1.4 Actions of individuals as a basis for retaining the listing of an entity
The actions of individuals can form, or at least contribute to, the basis for a recommendation to retain the listing of an entity. The Ombudsperson’s recommendation will depend on the particular factual circumstances, including the nature of the individual’s actions, the relationship of those acts to the role or position which the individual held within the entity, whether the acts contravened controls in place within the entity and the level of responsibility and seniority of the person within the entity. These combined factors will be assessed in order to determine if the entity is implicated by the activities of the individual.
1.5 Acts otherwise supporting acts or activities of ISIL (Da'esh) or Al-Qaida or any cell, affiliate, splinter group or derivative thereof
There is nothing in the relevant language of the Security Council’s resolutions which suggests that advocacy for an objective which is similar to an aim of ISIL (Da'esh) or Al-Qaida, absent any link to ISIL (Da'esh) or Al-Qaida or any associated entity, should be considered as activity which “otherwise supports” ISIL (Da'esh) or Al-Qaida or any associated entity.
Statements made orally or through the dissemination of written material can constitute a basis for a recommendation to retain a listing on the grounds of “other support” as set out in the Security Council’s resolutions. The Ombudsperson will give careful consideration to the particular facts of each case to determine if the statements or material meet a threshold so as to constitute other support to ISIL (Da'esh) or Al-Qaida or any associated entity. It will be relevant whether the statements go beyond expressions of opinion or sympathy and incite, encourage, suggest or persuade towards specific activity or recruitment which is in support of ISIL (Da'esh) or Al‑Qaida or any associated entity, or which constitutes a glorification (apologie) of the same. In analysing the latter point, it is necessary to consider the actual words of the speaker/writer, whether they were expressed publicly or not, or meant to be disseminated, or to incite any activity in support of ISIL (Da'esh) or Al-Qaida activity. The inferences to be drawn from those words and the effect of the statement in totality, must also be taken into account to determine if it crosses that threshold.
Other considerations include the context – geographically and politically - in which the statements are made, the profile/role of the individual making the statements, as well as the type of influence he or she has in the relevant context. On a related point the size and type of audience which he or she can reach and the potential impact are equally significant factors. There is a need to establish the existence of a link between the statements/material and ISIL (Da'esh) or Al-Qaida, or any associated entity with a sufficient level of specificity. It can be established either directly by content or by inference or context.
1.5.3 Material support
The act of providing material support to a listed individual or entity, regardless of its subsequent use, can be sufficient to constitute “other support”. In case material support is not provided directly by the petitioner to the listed entity, it may still amount to “other support” provided there is information to show that the petitioner knew or should have known that the receiving entity was ISIL (Da'esh) or Al-Qaida, or any associated individual or entity.
2. Assessment of Information
In assessing gathered information, the Ombudsperson employs a methodology appropriate to an international context, which is not subject to the procedural rules of any one legal system. In addition, the methodology is consistent with the preventative nature of the sanctions measures and the applicable criteria and standard.
Specifically, the Ombudsperson will assess all of the information obtained, in the Comprehensive Report, subject to relevant confidentiality restrictions. The Ombudsperson does not ‘admit’ or ‘exclude’ information or otherwise apply ‘rules of evidence’ as recognized in some legal traditions, notably the common law. Rather, the Ombudsperson assesses each piece of information inter alia as to relevance, specificity and credibility. In some instances, as a result of this assessment, the Ombudsperson may decide not to rely on specific information and it will not form part of the analysis or basis for the recommendation. That decision and the reasons for it will be detailed to the Committee.
The relevance, specificity and credibility of information and the weight to be accorded to it is a matter for the Ombudsperson to assess on a case by case basis. In each instance, the individual factors to be considered may take on a greater or lesser significance depending on the context and circumstances.
A significant part of the information gathered by the Ombudsperson consists of statements or summaries by States of the relevant information they possess about the petitioner and his or her activities. Unlike in the context of a criminal trial, where the judge(s) and/or the parties generally thoroughly test the evidence,6 the Ombudsperson does not get the same opportunity. The Ombudsperson thoroughly reviews the information gathered separately and cumulatively (see below), but is rarely aware of the origins of the information gathered and even less so of its source. Where the information in question consists of very broadly framed statements, without details, particulars or supporting material or information, it will be insufficient as a basis for recommending retention of the listing. This is particularly so when the petitioner disputes the information and his or her denials are supported by credible information and explanations.
By contrast, information contained in a number of specific statements which are mutually reinforcing when taken together can be accorded additional weight. However, when considering the existence of corroborative or reinforcing material coming from different origins, the Ombudsperson will be attentive to the possibility that the information emanating from these seemingly discrete sources may in fact originate from a single source. As a result, while the information in question may appear to be credible, the Ombudsperson will exercise caution in attributing additional weight to corroborating information when the original sources are not identified because of possible replication from a single source.
2.1 Assessment of press material
Special caution is also needed when reviewing press articles and reports because of the potential for inaccuracy in the recounting of information. In most instances, the original source of the information will be unknown and not subject to assessment, leaving unanswered questions as to its credibility, and thus, the reliability of such reporting. The same principles apply, to varying degrees, to other public source information such as books and publications. The Ombudsperson will keep all of these factors in mind and adopt a careful approach, therefore, in assessing the specific publications and reports of relevance to a particular petition. In many instances, the Ombudsperson may find it necessary to contact the relevant journalist or author to further consider the credibility of a particular report. The Ombudsperson pays special attention to the question of the reliability and credibility of such information.
2.2 Allegation that information has been obtained by use of torture, cruel, inhuman or degrading treatment
It is possible that information gathered by the Ombudsperson, relevant to a particular listing by the ISIL (Da'esh) and Al-Qaida Sanctions Committee, will be challenged by a petitioner as having been obtained through torture. In accordance with relevant international instruments and obligations,7 the Ombudsperson will give careful and serious consideration to any such allegation. Further, the Ombudsperson operates from the premise that information obtained through torture is inherently unreliable. The Ombudsperson applies the same approach to information obtained as a result of cruel, inhuman or degrading treatment. Such practices cast sufficient doubt on the information arising from them to render it unreliable. As a result, such an allegation is directly relevant to the credibility of the information, which is a key component of the standard applied by the Ombudsperson.
If such information called in question is ultimately advanced in support of maintaining the listing, the Ombudsperson will make inquiries of any relevant State, organization or individual and will endeavour to gather as much information as possible concerning the assertion of use of torture, cruel, inhuman or degrading treatment in the gathering of that information.
If the Ombudsperson is satisfied to the relevant standard,8 that the information has been obtained through torture, cruel, inhuman or degrading treatment, the information will not be relied upon in the analysis, and it will therefore not form part of the basis for the recommendation. Such an assessment will be detailed in the Comprehensive Report to the Committee for its consideration as it relates to the petition.
Further, even if the use of torture, cruel, inhuman or degrading treatment is not demonstrated to the relevant standard, the information gathered may still be such that it will affect the weight which will be accorded to the information called into question. This could be the case for example where the treatment inflicted does not meet the threshold of torture. Once again any such assessment will be detailed in the Comprehensive Report.
2.3 Allegation that information has been manipulated
An allegation by a petitioner that information has been manipulated, for example ‘planted’ by a State, requires relevant, credible and specific supporting material. In some cases where such concerns arise as to the reliability of some information, the source and other indicia of credibility of the underlying information will take on heightened importance.
3. Use of information cumulatively and inferences, including adverse inferences
3.1 Totality of circumstances and inferences drawn
In each case, the Ombudsperson looks at the totality of the circumstances and the inferences to be drawn from the gathered information once it is accumulated.
In the absence of pieces of information directly evidencing to the relevant standard one or more of the acts or activities considered under the listing criteria, a sufficient case for retention may be demonstrated when individual pieces of information are accumulated together and appropriate inferences drawn. Given the relevant standard for the review of delisting requests, which is lower than that applied to determine guilt for criminal conduct, an inference drawn in that context needs to be a reasonable one, but it does not have to be the only reasonable inference.9
As noted above, the information provided by States sometimes consists of general pieces of information which, taken individually, may be insufficient as a basis for a recommendation to maintain the listing. In those cases, the Ombudsperson will also assess such general information cumulatively. Indeed, when considered together, some discrete fragments of information can become stronger in terms of the inferences to be drawn. However, the cumulation of material which is independently insufficient and lacks specificity will rarely raise the quality of this information to a point where it meets the necessary standard.
3.2 Lack of credibility
An adverse inference can be drawn from the lack of credibility of a petitioner’s responses concerning the activities in which he or she was engaged. Where the Ombudsperson assesses that a petitioner’s answers on key issues lack credibility and are designed to conceal his or her involvement, the unwillingness to acknowledge past conduct allows for inferences to be drawn as to ongoing implication in activity in support of ISIL (Da'esh) or Al-Qaida. Also, specific instances of evasive and misleading responses with respect to information indicating continued activity in support of ISIL (Da'esh) or Al-Qaida will affect the weight which can be accorded to a petitioner’s denials in this respect.
4. Assessment of disassociation
The assessment of the information gathered underlying the Ombudsperson’s recommendation to the Committee does not end with a conclusion as to whether the petitioner has been associated with ISIL (Da’esh), Al-Qaida or their associated entities and individuals. The existence of changed circumstances and of possible disassociation is particularly relevant to whether the information gathered supports to the relevant standard the petitioner’s continued listing at the time of review.
The discussion below describes some general considerations and relevant factors which form part of the approach to assessing disassociation from ISIL (Da’esh), Al-Qaida or any associated entities or individuals.
4.1 General considerations
4.1.1 When to consider the existence of possible disassociation?
When analysing a petition to delist, the Ombudsperson considers whether the petitioner is associated with ISIL (Da’esh), Al-Qaida or any associated entity. In this context, the Ombudsperson assesses whether the petitioner has disassociated from the relevant entity, unless the issue does not arise in the case because the Ombudsperson has information supporting the existence of recent association or continued association. The Ombudsperson makes such determination on a case by case basis, based on the gathered information considered cumulatively, and irrespective of whether it is specifically raised by the petitioner.
The existence of disassociation is generally raised by petitioners who admit to having been associated with ISIL (Da’esh), Al-Qaida or any associated entity in the past but claim that this is no longer the case. A petitioner can make such a claim in support of either an initial request for delisting or a repeat request for delisting.10 The petitioner must provide additional information in order for the Ombudsperson to consider a repeat request for delisting. Such new information naturally includes material produced by the petitioner in support of his or her claim of disassociation.
4.1.2 Level of past and current involvement and likelihood of future involvement
The gravity of the petitioner’s prior conduct does not, in itself, change the threshold for determining whether or not disassociation has occurred. However, the nature and extent of the original conduct will be relevant to the assessment of disassociation, ongoing and future conduct, including to the extent it demonstrates the depth of involvement with, and commitment to, ISIL (Da’esh), Al-Qaida or any associated entity.
4.1.3 Absence of current information
The Ombudsperson may draw inferences of disassociation from the passage of time since the impugned activities, especially where the period is not minimal. However, the absence of current information indicating recent activities on the part of a petitioner, in itself, cannot determine the appropriateness of recommending delisting or continued listing. There may be many factors contributing to an appearance of inactivity, including circumstances limiting the individual’s activities, or impediments to the collection of information. Ultimately, the Ombudsperson will assess the lack of current information in all the circumstances, on a case by case basis, with a view to determining, in particular, whether there is a likelihood of ongoing or future involvement with ISIL (Da’esh), Al-Qaida or associated entities should the sanctions be lifted.
For example, where the petitioner is or has been incarcerated, this may impact on his or her capacity for continued involvement in support activities during that intervening period. Thus, external factors, in addition to the sanctions measures and disassociation, can explain the lack of current information showing association. Given these combined circumstances, the lack of current information in such a case of incarceration, in itself, may not be a factor which weighs in favour of delisting.
4.2. Relevant factors for assessing disassociation
4.2.1 Change of state of mind, acceptance of responsibility, remorse, reconsideration and rejection of violent extremism
The Ombudsperson is not required to demonstrate that the petitioner possesses the intent to support ISIL (Da’esh), Al-Qaida or associated individuals and entities in order to recommend retaining the listing. However, the question as to the petitioner’s possible change of state of mind becomes a particularly relevant factor when determining the existence of disassociation.
The Ombudsperson takes into account acceptance of responsibility and remorse, as may be demonstrated by a range of factors and actions, when assessing the existence of disassociation. A change in views by a Petitioner as to ISIL or Al-Qaida, if genuine and sustained over a period of time, can be a significant factor in favour of delisting. When a Petitioner’s request for delisting is denied following recommendation by the Ombudsperson, the detailed summary of the analysis in the comprehensive report given to the Petitioner shall in principle assist the Petitioner in reflecting on his or her conduct. A petitioner’s mischaracterization or denial of his or her involvement is usually a sign that he or she does not yet acknowledge full responsibility for his or her association. By contrast, where the Petitioner accepts responsibility for past conduct, is open about what led him or her to support ISIL or Al-Qaida and about why he/she has now changed views about the same, these admissions could in principle be valid signs that he has engaged in a disassociation process. This is particularly so when coupled with a lack of information of continued association during a sufficient period of time.
In particular cases, it may also be relevant for the petitioner to demonstrate his or her reconsideration and rejection of violent extremism. Where the petitioner has shared and supported the goals of ISIL (Da’esh), Al-Qaida or any associated entity, this allows for inferences to be drawn as to continued support to the organization or group unless there is information to indicate a change in views. When determining for instance whether an individual has disassociated from ISIL (Da’esh), Al‑Qaida or any associated entity, the Ombudsperson may give weight to the individual’s categorical and consistent statements against ISIL (Da’esh), Al-Qaida and such organisations or groups. The Ombudsperson may also take into account a petitioner’s willingness to sign a declaration pursuant to paragraph 7(b) of Annex II of resolution 2368 (2017), which reinforces any statement of disassociation.
4.2.2. Change of conduct
A change of state of mind will usually need to be accompanied by a change of conduct. To amount to a change of conduct, a petitioner’s actions should demonstrate that he or she no longer takes part in activities that justified his or her listing, or that he or she has taken steps to alter any behaviour which could demonstrate an association to ISIL (Da’esh), Al-Qaida or any associated entities or individuals.
There may be cases where a petitioner is detained and where the gathered information supports that changes of conduct have occurred during the period of detention (e.g. the petitioner’s demonstrated deradicalisation, cooperation with State authorities or any other effort by the petitioner showing changed state of mind). Such efforts will normally weigh in favour of the petitioner’s delisting. However, depending on the specific circumstances of a case, it may be difficult to assess the extent to which the changed conduct is attributable to an altered state of mind, or rather only the limited opportunities for the petitioner to support and associate with the relevant organisations, groups and individuals.
The shorter the time period between the listing of an individual and the Ombudsperson’s review of the petition for delisting, the less the weight usually accorded to the change of conduct as a factor in assessing the petition. This is particularly so where the time period since the change of views or conduct invoked by the petitioner is relatively short, especially in comparison to the duration of his or her prior conduct, support or association.
4.2.3 Factors which can support a disassociation process
Disassociation is not an instant process and various factors can motivate an individual’s decision to engage in such process and to sever links with a listed entity. In a number of cases, the petitioners require support and guidance. This is an area where programmes of deradicalization can be of great support to petitioners. The Ombudsperson can also be of great support to a petitioner’s engagement in a disassociation process. Petitioners undeniably perceive the Ombudsperson as having a certain authority. On the basis of this authority and of the unique and privileged access he/she has to petitioners during the dialogue phase, the Ombudsperson is able to include in his/her analysis messages which can acknowledge the efforts made by a petitioner in the disassociation process. If needed, he/she can also guide that petitioner as to further steps required to fully complete this process. National authorities and the Ombudsperson can provide mutually reinforcing support to petitioners who engage in a disassociation process.
Such guidance is particularly important for petitioners listed by the Committee following or alongside a trial and conviction based on the same or similar conduct. In a number of such cases, the disassociation process starts while the petitioner is serving sentence. The Ombudsperson may draw inferences of disassociation from the passage of time since the impugned activities, especially where the period is not minimal. However, where the petitioner is incarcerated, his or her capacity for continued involvement in support activities during that period is limited. In these circumstances, the Ombudsperson searches specific signs of disassociation during the petitioner’s detention and beyond, in the case he or she has been released. There are various possible signs of such disassociation, even when a petitioner is detained. These include a genuine engagement in a de-radicalisation process; efforts made to avoid contacts with radical elements and/or to discourage approaches from such elements; and acceptation of responsibility for past conduct, even from individuals who had denied such responsibility at trial.
The Ombudsperson’s Comprehensive Report may provide an acknowledgement of a petitioner’s disassociation efforts and contain a specific encouragement to pursue such efforts and/or guidance on how to do so. It is important that such elements not be omitted by the Committee when it communicates to the petitioner the reasons for the decision to delist or retain his or her name on the Sanctions List. Such elements can also be of use to detention authorities and probation officers that are responsible for the penal situation of certain petitioners.
4.2.4. Existence of continuing links
The fact that a petitioner continues to have ongoing associations with the individuals or entities implicated in the petitioner’s conduct upon which the listing is based will normally raise a concern as to continuing and future involvement and be a factor against delisting. However, in some cases, it might be difficult to draw any adverse inference from such continuing associations. This may be the case where associations exist independently of the conduct which formed the basis for the listing (such as family links) or if the individuals or entities in question have themselves demonstrated their disassociation and been delisted.
1 See the approach to standard. As noted in this document, “sufficiency” provides the necessary flexibility in terms of assessing different types of information from distinct sources, quantitatively, qualitatively and in substance. The criteria of “reasonableness and credibility” ensure that the combined circumstances provide a rational base for the listing, which is reliable enough to justify the imposition of the sanctions measures. These factors of sufficiency, reasonableness and credibility also offer appropriate benchmarks for analyzing, as far as possible, underlying information, and the reasoning which is applied to it in relation to the listing.
2 See, listing criteria included in resolution 2368 (2017), paragraph 3. In resolution 2253 (2015), the Security Council confirmed that any individual, group, undertaking or entity either owned or controlled, directly or indirectly, by, or otherwise supporting, any individual, group, undertaking or entity associated with Al-Qaida or ISIL, including on the ISIL (Da'esh) and Al-Qaida Sanctions List, shall be eligible for listing (paragraph 5). See also resolution 2178 (2014) according to which foreign terrorist fighters and those who finance or otherwise facilitate their travel and subsequent activities may be eligible for inclusion on the Al-Qaida Sanctions List where they participate in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of, Al-Qaida, supplying, selling or transferring arms and related materiel to, or recruiting for, or otherwise supporting acts or activities of Al Qaida or any cell, affiliate, splinter group or derivative thereof.
3 The Security Council confirmed that the requirement to freeze assets applies to: (a) financial and economic resources of every kind, including but not limited to those used for the provision of Internet hosting or related services, used for the support of ISIL (Da'esh) or Al-Qaida and other individuals, groups, undertakings or entities included on the ISIL (Da'esh) or Al Qaida Sanctions List; (b) funds, financial assets or economic resources that may be made available, directly or indirectly, to or for the benefit of listed individuals in connection with their travel, including costs incurred with respect to transportation and lodging (subject to exemption procedures); and (c) to the payment of ransoms to individuals, groups, undertakings or entities on the ISIL (Da'esh) and Al‑Qaida Sanctions List, regardless of how or by whom the ransom is paid (resolution 2253 (2015), paragraphs 6 to 8). See also document entitled “Assets Freeze: Explanation of Terms” Approved by the Al-Qaida Sanctions Committee on 24 February 2015) .
4 In resolution 2161 (2014), the Security Council noted that such means of financing or support include but are not limited to the use of proceeds derived from crime, including the illicit cultivation, production and trafficking of narcotic drugs and their precursor.
5 Membership will be assessed on a case-by-case basis. For example an oath of allegiance to a group or individual would be a clear indication of membership, but it is not required.
6 Depending on the Civil Law or Common Law nature of the system, by way of questions to witnesses from the bench and/or examination/cross-examination of witnesses, authentication of contested documents.
7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984, 1465 U.N.T.S. 85) (“CAT”); International Covenant on Civil and Political Rights (16 December 1966, 999 U.N.T.S. 171), Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (precursor of CAT) (GA Res. 3452 (XXX), 9 Dec. 1975).
8 In the view of the Ombudsperson, the standard should be consistent with that used to assess the delisting petition generally. Thus, the question will be whether there is sufficient information to provide a reasonable and credible basis for the allegation of torture with respect to the specific information in question.
9 See for instance the jurisprudence of international criminal tribunals required to establishing guilt beyond reasonable doubt according to which inferences from circumstantial evidence of the existence of an element of the crime or of the form of responsibility must be the only reasonable inference from the evidence. See for instance International Criminal Tribunal for Rwanda (ICTR), Case N° ICTR-99-46-A, Prosecutor v. André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Appeal Judgment of 7July 2015, paras 304-306 and International Criminal Tribunal for the former Yugoslavia (ICTY), Case N° ICTY-IT-96-21-A, Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Appeal Judgement of 20 February 2001, para 304.
10 A repeat request is a request made a petitioner whose listing has been retained by the Committee following a first review and recommendation by the Ombudsperson.