The un security council ombudsperson: an original institution still under construction
| Autor | Jaume Saura-Estapà |
| Cargo | Deputy General for the Ombudsman of Catalonia and Professor of International Law and International Relations at the University of Barcelona |
| Páginas | 185-198 |
THE UN SECURITY COUNCIL OMBUDSPERSON: AN ORIGINAL INSTITUTION STILL
UNDER CONSTRUCTION*
Jaume Saura-Estapà**
Abstract
The United Nations Security Council has set up an Ombudsperson’s Ofce to deal with complaints from individuals
or entities subject to sanctions imposed within the framework of the ght against international terrorism. This article
examines the reasons that have led the UN to create such a mechanism and whether, given its conguration and
functions, this body meets the requirements traditionally expected of an ombudsman. We conclude that, despite some
institutional shortcomings, the Security Council Ombudsperson has shown a high degree of effectiveness, and that this
is a gure with the potential to strengthen the due process in this eld of international relations.
Keywords: Ombudsperson; Ombudsman; Security Council; human rights; United Nations.
L’OMBUDSMAN DEL CONSELL DE SEGURETAT DE L’ONU: UNA INSTITUCIÓ ORIGINAL
ENCARA EN CONSTRUCCIÓ
Resum
El Consell de Seguretat de les Nacions Unides ha establert una Ocina de l’Ombudsman per atendre les reclamacions
de persones o entitats sotmeses a sancions imposades en el marc de la lluita contra el terrorisme internacional. L’article
examina les raons que han conduit l’ONU a crear aital mecanisme i si, per la seva conguració i funcions, aquest
òrgan reuneix els requisits que tradicionalment s’espera d’una institució de l’Ombudsman. Conclourem que, malgrat
alguns defectes institucionals, l’Ombudsman del Consell de Seguretat ha mostrat una alta taxa d’efectivitat, i que és
una gura amb potencialitat per enfortir el procés just en aquest àmbit de les relacions internacionals.
Paraules clau: Ombudsman; Consell de Seguretat; drets humans; Nacions Unides.
* This article is a translation of the original version in Catalan.
** Jaume Saura-Estapà, Deputy General for the Ombudsman of Catalonia and Professor of International Law and International
Relations at the University of Barcelona. Síndic de Greuges de Catalunya, Passeig de Lluís Companys, 7, 08003 Barcelona, jsaura@
sindic.cat.
Article received on 26.09.16. Blind review: 03.10.16 and 26.10.16. Final version acceptance date: 22.12.16
Recommended citation: Saura-EStapà, Jaume. “The UN Security Council Ombudsperson: an original institution still under
construction”. Revista Catalana de Dret Públic, Issue 54 (June 2017), p. 185-195, DOI: 10.2436/rcdp.i54.2017.2873.
Jaume Saura-Estapà
The UN Security Council Ombudsperson: an original institution still under construction
Revista Catalana de Dret Públic, Issue 54, 2017 186
Summary
1 Introduction
2 Targeted or smart Security Council sanctions and the need for an oversight mechanism
2.1 Evolution of the Security Council’s sanctions regimes
2.2 Challenges posed by smart sanctions
3 The Security Council Ombudsperson from an ombudsman perspective
3.1 Basic prole of an ombudsman on an international level
3.2 The Security Council Ombudsperson: conguration, functions and how the ofce operates
4 Final considerations
Bibliography
Jaume Saura-Estapà
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Revista Catalana de Dret Públic, Issue 54, 2017 187
1 Introduction
Since the middle of 2010, the UN Security Council has had an Ombudsperson who is responsible for
supervising, upon request, the sanctions this body imposes on natural and legal persons as part of its remit
for maintaining international peace and security. The gure of an ombudsman, which originated in Sweden
in 1809, has spread all over the world, especially in the nal third of the 20th century, and varies greatly both
from a competence perspective (general and specialised institutions) and a territorial perspective (state and
sub-state institutions). There are even international ones, such as the European Ombudsman. The UN itself
has an Ombudsman and Mediation Services Ofce for United Nations employees.1
Despite the widespread emergence of this institution, it is nonetheless surprising that a body as singular as
the Security Council, which was set up and traditionally operated in the logic of traditional international
relations (between states or, at best, subjects of international law), should have equipped itself with a gure
conceived to defend the rights of individuals. Admittedly it has done so in a particular sphere (a specic
sanctions regime) and with clearly dened powers (removing a petitioner from a sanctions list) but that does
not detract from the institution’s innovative character. On the contrary.
The aim of our contribution, therefore, is to analyse this innovative gure on an international level: its origins
and design, it functions and how it functions and, in short, whether its institutional characteristics allow it
be compared to a real ombudsman, as this gure is understood in international practice. We will divide the
article into two large parts. Firstly, we will explain the reasons that led the Security Council to create this
gure, which are none other than the changes in the sanctions model that have gradually been introduced
within this body and their effect on individuals. Secondly, we will analyse the institutional characteristics
of the Security Council Ombudsperson and how this particular gure has operated in the last six years, and
study to what extent it is comparable to ombudsmen on a national level. In our nal considerations we will
point out the shortcomings that the Security Council Ombudsperson needs to overcome and the potential this
institution has for defending the rights of people subject to sanctions by the Council itself.
2 Targeted or smart Security Council sanctions and the need for an oversight mechanism
In this rst part we shall see how the Security Council sanctions regime has gone from targeting sovereign
states to targeting individuals, and how that has raised serious doubts from the point of view of democratic
principles and the rule of law, particularly from the perspective of the right of people sanctioned by states at
the request of the Security Council to due process.
2.1 Evolution of the Security Council’s sanctions regimes
The Security Council is the main body responsible for achieving the United Nations’ primary aim, namely
the maintenance of international peace and security.2 To do that it is empowered by the member states to
issue legally binding resolutions, particularly when there is a threat to peace, a breach of the peace or an act
of aggression, under the terms of Chapter VII of its Charter.3 It is well known that in this and other spheres of
action, the permanent members of the Security Council may veto any decisions, even if these have obtained
the afrmative majority of nine votes set out in the Charter (Article 27(3)). When its resolutions within the
framework of this chapter are not respected by the state they address, the Security Council may impose
diplomatic, economic, military or other sanctions, which have to be applied in practice by other UN member
states.
Following decades of virtual inactivity, the Security Council has made extensive use of its powers under
Chapter VII of the Charter since the 1990s. In particular, it has frequently imposed diplomatic and economic
1 Its rules of procedure are published in the Secretary-General’s Bulletin “Terms of Reference for the Ofce of the United Nations
Ombudsman and Mediation Services”. Document ST/SGB/2016/7, of 23 June 2016. These terms of reference replace those originally
adopted in 2002, when the Ofce was set up.
2 See Article 24(1) of the Charter regarding its Article 1(1).
3 Article 25 of the Charter states that “the Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter”.
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sanctions and, on many occasions, authorised the use of force against states that resist its resolutions. A
broad interpretation of its mandate in this area has even allowed it to set up international criminal tribunals,4
take action against non-state actors5 and adopt international quasi-legislation against terrorism following the
attacks of 11 September 2001.6 In that regard, it is worth mentioning that this expansion of the instruments
that the Security Council has at its disposal for maintaining international peace and security has been
accompanied by a broader concept of the terms “peace” and “security”, which are no longer limited to the
relations between states but also include new threats such as international terrorism and organised crime.
All this means that the Security Council’s resolutions are increasingly having a greater effect on private
individuals, even if that is through the member states.
At the same time, the traditional economic sanctions that the Security Council used against sovereign states,
in the form of more or less extensive international trade embargoes,7 have received strong criticism from legal
opinion and humanitarian organisations for their devastating effect on the civilian population.8 The United
Nations Charter is certainly very sparing in its treatment of the secondary effects of this type of sanction
and only in Article 50 does it envisage the possibility that a state adversely affected by the preventive or
enforcement measures adopted by the Security Council towards a third party might “consult the Security
Council with regard to a solution to those problems”. There is not a single word on the adverse effects that
the civilian population might suffer, as happened during the long decade of sanctions in Iraq following the
Gulf War (1991). The hundreds of thousands of deaths attributed to these sanctions which, in turn, had no
effect on the government or its leader, Sadam Hussein, forced the international community to reconsider
the scope and opportunity for sanctions that do “not involve the use of force”, in the words of the Charter
(Article 41) In his year 2000 report, We the Peoples, the UN Secretary-General had harsh words to say about
economic sanctions:
“When robust and comprehensive economic sanctions are directed against authoritarian regimes [...] it is
usually the people who suffer, not the political elites whose behaviour triggered the sanctions in the rst
place. Indeed, those in power, perversely, often benet from such sanctions by their ability to control and
prot from black market activity, and by exploiting them as a pretext for eliminating domestic sources of
political opposition”.9
And he concluded that economic sanctions had proved to be a “blunt and even counterproductive instrument”,
which is why he called on the Security Council to bear that in mind when designing and applying future
sanctions regimes.10
In reality, the Security Council had already begun to do that the previous year with Resolution 1267 (1999)
on Afghanistan, and the link between the Taliban regime and the terrorist organisation Al-Qaida and the
attacks on the American embassies in Nairobi and Dar es Salaam.11 This approach was based on the twin
concept that international terrorism should be characterised as a threat to international peace and security and
that individuals, rather than states, should be the target of sanctions.12
4 The tribunals for the former Yugoslavia and Rwanda, respectively, in Security Council Resolutions 827 (1993), of 25 May, and
955 (1994), of 8 November.
5 In the case of piracy off the coasts of the Horn of Africa, based on Security Council Resolution 1816 (2008), of 2 June. In
fact, sanctions against non-state actors may date back to 1997, against members of UNITA, in Angola [Res. 1127 (1997)]. What
distinguishes the sanctions against piracy is the fact that this was the rst time sanctions were not based on the sovereign territory
of a state.
6 Security Council Resolution 1373 (2001), of 28 September.
7 As Reinish says, the “theory” of economic sanctions is that economic pressure on civilians will be translated into pressure on
governments, who in turn will be forced to behave differently. See Reinisch (2001: p. 851)
8 See, for example, Segall (1999).
9 See UN (2000: para. 231).
10 Ibid, paras. 232 and 233.
11 See Sixteenth report of the Analytical Support and Sanctions Monitoring Team, submitted pursuant to Resolution 2161 (2014),
concerning Al-Qaida and associated individuals and entities. Document S/2014/770, of 29 October, para. 38.
12 See Willis (2011: p. 679)
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Essentially, the sanctions system established by Resolution 1267 (1999) consisted of imposing a series of
sanctions (ight bans, nancial assets freeze, etc.) on members of the Taliban movement and Al-Qaida
personally, as well as individuals or entities “associated” with one or the other. Given the need to gradually
identify who these “individuals and entities” were, aside from their leaders, a “committee” comprising the
Security Council members themselves was set up as a subsidiary body13 and tasked with drawing up a
“consolidated list” of the individuals and entities that the sanctions would target according to the criteria
of the main body, as well as monitoring the measures adopted by member states for implementing, and
eventually lifting, these sanctions, as will be seen in more detail in the next section.
Since then this technique has become the general approach and there are currently a dozen sanctions
committees dealing with conicts in Somalia-Eritrea, the Democratic Republic of Congo, North Korea,
Sudan, Guinea-Bissau, Yemen, the Central African Republic and other states,14 although the committee
set up by Resolution 1267 is by far the one that has targeted the most individuals and entities with their
sanctions. So much so that, in a very controversial decision taken in 2011,15 the mandate was split to separate
the sanctions aimed at the Taliban and contextualised in Afghanistan (the new 1988 Committee), from those
aimed at Al-Qaida (the mandate and name of which has changed as ISIS has replaced Al-Qaida as the focus
of international attention).16 On 19 December 2016, the latter committee alone identied a total of 256
individuals and 75 entities as the subject of sanctions.17
2.2 Challenges posed by smart sanctions
At this point, the solution to an old problem poses a new one. The lists of individuals and entities subject to
sanctions are approved by a body, the Security Council, which, although it is not above international law18
is, de facto, not answerable for anything to anyone.19 They are often based on requests from states that are
hardly, or not at all, democratic (although formally the decision is the committee’s) and based on classied
information, which is therefore condential.20 The powerlessness of individuals and entities included in
the Consolidated List has been notorious right from the start, as the Sanctions Monitoring Team, a body of
experts that has advised the 1267 Committee since 2004, has acknowledged.21 For example, it was not until
2002 (three years after this sanctions regime was adopted) that the rst “guide” was approved with criteria
13 That meant there would be a committee of 15 members, the ve permanent members of the Security Council (with no right of
veto) and ten others on rotating two-year terms.
14 See the list of UN sanctions committees [Consulted: December 2016].
15 It was highly controversial only because segregating alleged members of the Taliban in a new sanctions committee meant
those individuals on the list or subsequently added to it no longer had access to the Ombudsperson. The argument for excluding the
Ombudsperson from this committee is that it focuses on a single country during a specic period, while the struggle against Al-Qaida
(and now ISIS) is not limited by time or space. See Mirshahi (2012: p. 9)
16 After various changes its ofcial name has been the ISIL (Da’esh) & Al-Qaida Sanctions Committee 1267/1989/2253 since
December 2015. See Security Council Resolution 2253 (2015), of 18 December, para. 1.
17 Up-to-date information on the list of individuals and entities sanctioned by Committee 1267/1989/2235 can be found here. For
its part, the 1988 Committee sanctions list contains the names of 136 individuals and 5 entities (gures updated on 19 December
2016) [Consulted: December 2016].
18 See Reinisch, op. cit., p. 855-858.
19 The International Court of Justice has established that the Security Council, despite being a political body, is subject to general
international law and the functional limits imposed by the United Nations Charter (Lockerbie case). The Appeals Chamber of the
International Criminal Tribunal for the Former Yugoslavia has ruled likewise (Tadic case). But these formal constraints have so far
not been translated into effective, legal or jurisdictional control of their conduct which, moreover, is subsumed in their lack of any
international legal personality, so that any international responsibility that might derive from any breach of international law would
be attributable to the United Nations as such.
20 According to Ben Emmerson, the Special Rapporteur on human rights and counter-terrorism, any state may propose listing with
minimal data to back it up. In practice the committee follows a “no-objection” procedure whereby, if no member opposes the listing,
this becomes effective within a period of 10 working days. In fact, the committee as a whole does not examine the evidence that
supports a designation, so the risks of undue use of the procedure are high. See UN (2012: paras. 25-27).
21 In drawing up a balance of the sanctions regime’s 15 years, the Team recognises that “some commentary has been critical,
arguing that the Security Council introduced a global targeted sanctions regime without providing sufcient safeguards to ensure
that the underpinning evidence was robust or enabling those listed to challenge the basis for their listing”. See document S/2014/770,
op. cit., para. 43.
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for identifying a person as suspicious and, more particularly, interpreting what it means to be “associated”
with Al-Qaida, the Taliban or Osama bin Laden22 (as the regime initially formulated it). And until 2006, there
was no obligation to notify those sanctioned that they were included in the list.23
This powerlessness was accentuated rst by the impossibility, then the difculties, of challenging inclusion
in the List. Until 2002, no procedure was envisaged whereby the interested party or their representative
could ask the government of their state of residence or nationality to petition the committee for a review
of their case. Since this government was frequently the one that proposed the person be listed in the rst
place, a requirement was established in 2006 for states to create a single Focal Point for submitting the
review requests to all Security Council sanctions committees. However, this is merely an administrative
body, which ensures requests go to the right place and the pertinent notications are made. It does not carry
out an independent review of the case, nor does it have any decision-making power.24 Furthermore, while
the criteria for adding a name to the List had been approved in 2002, those for removing a name were only
approved in 2006.25
As the decisions of the Security Council and its subsidiary bodies cannot be subjected to judicial review
(directly), the conict over the sanctions regime’s legitimacy is transferred to the member states. In fact,
responsibility for implementing international sanctions lies with the member states, especially those where
the sanctioned person is domiciled, has their current accounts, and so on. They are the ones that have to
take legal and regulatory measures to enforce “the freezing of nancial deposits, suspension of credits and
economic aid, the denial and restriction of access to foreign nancial markets, trade embargoes on arms and
luxury goods, bans on ights and the denial of international displacements, visas and studies abroad”, etc.26
The Council has been at pains to reiterate the administrative and non-criminal character of these measures,27
an appraisal with which, for example, the European Court of First Instance concurred in the Kadi case.28
With this thesis, the Security Council is trying to side-step the minimum demands of due process by situating
the sanctions in a pre-trial stage, with an administrative prole and temporary character. However, the
consequences of the sanctions are sufciently serious and ongoing to cast doubt on this denition, at least
from the point of view of their practical effects.29
In fact, one of the main obstacles the Security Council has come up against in applying this and other sanctions
regimes has been the attempts on a national and international level to challenge them before the courts, while
questioning the state laws and procedures that gave effect to the Security Council resolutions.30 International
case law initially avoided entering into the substantive issues, shielding itself behind the binding nature
of Security Council resolutions on member states and the principle of presumed conformity with human
rights standards.31 However, for a number of years now, a trickle of national and international judgements
have gradually been overruling the national procedures in some states due to the lack of effective judicial
guarantees regarding listing and delisting.32 This is the context in which the Security Council has been trying
22 Security Council Resolution 1390 (2002), para. 2. See Kirschner (2010: p. 589)
23 Security Council Resolution 1735 (2006), para. 5.
24 See Kirschner, op. cit., p. 590-591.
25 Resolution 1735 (2006), op. cit., para. 14.
26 See Gordillo (2012: p. 211)
27 See, for example, Resolution 2253 (2015), op. cit., paras. 44 and 58: “Reiterates that the measures referred to in paragraph 2 of
this resolution are preventative in nature and are not reliant upon criminal standards set out under national law”.
28 Judgment of the Court of First Instance (Second Chamber, extended composition) of 21 September 2005.
Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities. Case T-315/01.
29 See Kirschner, op. cit., p. 33.
30 See Reinisch, op. cit., p. 855-858.
31 See the report of the special rapporteur, doc. A/67/396, op. cit., para. 17.
32 Some of the most emblematic cases on a European level are Nothing against Switzerland, ECHR judgement of 13 September
2012, and Kadi, CJEU (Grand Chamber) judgement of 18 July 2013, both prior to the creation of the Ombudsman gure. As a
more recent example, we may cite the ECHR Grand Chamber judgement in the case of Al-Dulimi and Montana Management Inc.
against Switzerland, of 21 June 2016 (the Second Chamber judgement dates from 2013). It should be pointed out that the committee
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to strengthen the due process guarantees on an international level and establish, since 2010 and exclusively
within the framework of the 1267 Committee, an Ofce of the Ombudsperson,33 with the scarcely veiled aim
of ensuring its decisions gain legitimacy and may not be questioned by national jurisdiction for violation of
the basic rights of sanctioned individuals.
3 The Security Council Ombudsperson from an ombudsman perspective
In this second section we will examine the Security Council Ombudsperson’s role and work, and the
conguration of the ofce, in order to decide whether this gure has the characteristic features of an
ombudsman, as they have gradually been established in international practice, as well as the potential this
new institution has for defending human rights within the framework of the Security Council sanctions
regime.
3.1 Basic prole of an ombudsman on an international level
It is generally maintained that the gure of the ombudsman originated in Sweden in 1809 and gradually
spread to the rest of the world from there.34 In reality though, the old Swedish justitieombudsman is merely a
forerunner to today’s Ombudsman that could not only supervise the public administration but also the judicial
power and whose decisions were binding. Both these features are completely alien to the contemporary
Ombudsman institution. Moreover, until the Second World War, it was an institution that had only spread to
the Scandinavian countries. Its unstoppable expansion to every continent only came about in the nal third
of the 20th century.35
The current proliferation of this gure, to the United Nations as well, begs the question of what characteristics
this institution requires for it to be considered a genuine public defence mechanism. Doctrinal sources,36
resolutions issued by international organisations37 and other reports38 have shed some light on this question.
By schematically following the study promoted by the Ombudsman of Catalonia, we can point to the
following features:
a. From the point of view of the conguration of the institution, the international texts cited point to the
necessity, and not just the opportunity, of having an independent body responsible for the public defence
of human rights, as a requirement of a democratic state and the rule of law. As a general characteristic it is
recommended that the essential features of the institution be regulated at the highest level, the constitution,
so that they are not left to changing parliamentary majorities.39 The purpose of the institution is, above all,
questioned in this case is the Committee established pursuant to Resolution 1518 (2003) concerning Iraq, which has no ombudsman’s
ofce. Summaries of the judgements dictated on national and international levels regarding listed individuals and entities may be
found in the half-yearly reports issued by the 1267 Committee Monitoring Team. On this question, see also Sena (2009: p. 193-228).
33 It appears Denmark rst proposed setting up an independent review mechanism in the form of an ombudsperson, when it joined
the Security Council in 2005 as a non-permanent member. See Kirschner, op. cit., p. 597.
34 Today the main international Ombudsman institution on a global scale, the International Ombudsman Institute, brings together
170 institutions from more than 90 different countries [Consulted: December 2016].
35 See Reif (2011: p. 269-271).
36 Apart from Reif (op. cit.), mention must be made of the work by Ribó [et al], online here [Consulted: December 2016]. As
regards the differences and similarities between the Ombudsman and the so-called “national human rights institutions”, consult
Steinerte and Murray (2009: p. 54-72).
37 Among the most signicant on a universal scale we may cite: “The role of the Ombudsman, mediator and other national human
rights institutions in the promotion and protection of human rights”, UN General Assembly Resolution 69/168, of 18 December 2014.
On a European scale: “Strengthening the institution of Ombudsman in Europe”, Parliamentary Assembly Resolution 1959 (2013),
of 4 October. There have also been pronouncements in the African (“OR Tambo Minimum Standards for Effective Ombudsman
Institution and Cooperation”, of 26 February 2014) and Latin American spheres (“Strengthening of the National Human Rights
Systems of the Member States and Support for the Work of Defenders of the People, Defenders of the Population, and Human Rights
Attorneys or Commissioners (Ombudsmen)”), OAS GA Resolution, of 6 June 2006).
38 For example, the Council of Europe Venice Commission report: Compilation on the Ombudsman institution. CDL (2011)
079, 1 December. Or the Wellington Declaration, adopted unanimously at the 10th IOI World Conference (See The International
Ombudsman Institute website, op. cit.).
39 These sub-state ombudsmen should be regulated at a statutory or equivalent level.
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the protection and promotion of human rights. Naturally, the traditional monitoring of “maladministration”
is maintained but for decades now the focus of the Ombudsman’s work has been in the area of human
rights recognised on a national and international scale. Moreover, the Ombudsman is seen as a magistrate of
persuasion whose resolutions have the value of a recommendation, with a strength based not on any legally
binding character but on the authority that the rigour and prestige of the ofce gives them.40 Finally, one of
the reasons for the spread of the institution lies in the fact that they have been established on a regional and
local level as well as with various specialisations (for example, the energy ombudsmen or mediators in the
United Kingdom, France and Belgium), a trend that is generally applauded by international bodies but not
without criticism.41
b. A second basic trait dening the Ombudsman gure is independence, from the point of view of the
institution as well as the person with the mandate. This requirement means high personal qualications are
demanded of the post holder and they should not be a member of any political party. The Ombudsman’s
appointment must be accompanied by guarantees that can only be provided by the representative institution
of popular sovereignty (legislative assembly or similar) and qualied majorities that ensure it is not an
imposition by the government or just the parties that support the appointment. It is also important, from
the point of view of guaranteeing the institution’s independence, that it has sufcient human and budgetary
resources as well as full organisational autonomy, since formal independence often clashes with the effective
lack of real possibilities for taking action.42
c. Thirdly, with regard to competences and areas of activity, we have already pointed out that the core of
the Ombudsman’s activities lie in monitoring public administration in general and whatever affects citizen
rights in particular, clearly excluding those matters that may be subject to legal scrutiny. Nevertheless, it
is increasingly common to see Ombudsman ofces with competences in relation to private companies that
provide services of public or general interest. Either way, the Ombudsman can act on his or her own initiative,
or at the request of another party and, while their resolutions may not be legally binding, there has to be a
legal duty for all administrations under their supervision to collaborate with them. A legal duty that means
an obligation to respond to their requests for information, provide access to all kinds of documents and take
into account the good faith of their recommendations.
3.2 The Security Council Ombudsperson: conguration, functions and how the ofce operates
As a result of the criticisms received regarding the shortcomings, in terms of due process and transparency,
in including or removing names from the Consolidated List, the Security Council has gradually introduced
improvements within the framework of Resolution 1297 (1999) which, in due course, led to the establishment
of the Ofce of the Ombudsperson under Resolution 1904 (2009), of 17 December.43 Its functions and the
way it works have been revised on several occasions, notably by resolutions 1989 (2011) and, more recently,
2253 (2015). To date the Ofce has had two incumbents: Kimberley Prost (2010-15) and Catherine Marchi-
Uhel (from 27 July 2015).44
Conguration and independence
Resolution 1904 (2009), established the Ofce of Ombudsperson for a period of 18 months. Since then, its
mandate has been renewed for several similar periods, up to Resolution 2253 (2015). At that time (December
40 See Ribó [et al.], op. cit., p. 10.
41 The European Congress of Local and Regional Authorities, in its Resolution CPLRCE 80 (1999), pointed to the dangers without
rejecting specialisation: “The appointment of ombudsmen whose competence is limited to a specic eld (health, telecommunications,
etc.) or to a specic group of persons requiring protection (persons with disabilities, immigrants, minorities, etc.) is no alternative to
the Ombudsman with general competence. There is no objection in principle to the appointment of these specialized ombudsmen in
addition to other ombudsmen. However, there is a need to avoid excessive proliferation which might interfere with the functioning
of a general system for the protection of human rights.” (Principle 15, quoted in Ribó [et al.], p. 14)
42 See Wellington Declaration, op. cit., para. 10.
43 See in particular paragraphs 20 to 27 and Annex II.
44 See Report of the Ofce of the Ombudsperson, submitted pursuant to UN Security Council resolution 2253 (2015). Document
S/2016/96, of 2 February, para. 2.
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2015), its existence was “assured” until 2017 and the resolution extends that for a further 24 months, until
December 2019. The purpose of this measure was to give the Ofce a degree of stability and legal security,
although the Ombudsperson’s temporary character in the Security Council framework still leaves it open to
criticism.
This lack of stability is linked to the new institution’s legal rank. In contrast to recommended international
practice, the Security Council Ombudsperson does not have a “constitutional” rank (United Nations Charter)
but an “organic” one (Security Council resolution). Given that reforming the Charter is, in reality, an illusion,
there is probably no alternative to an appointment by means of a resolution. However, it seems reasonable to
demand the Ofce is at least given the permanent character that so many other UN subsidiary bodies have,
and at least while the 1267 Committee remains in existence (or the sanctions committees in general if, as
we shall propose, the Ombudsperson’s powers are extended to the whole UN sanctions regime). This way, it
would not be possible for the Ofce to lapse merely due to the passage of time. Its termination would need a
new resolution, with the enhanced majority required by Security Council decisions.45
The fact that the UN Secretary-General appoints the Ombudsperson does not help to ensure the latter’s
independence either. Admittedly, there are no obvious alternatives and the situation whereby the Security
Council itself nominated the holder of an ofce set up to monitor it has wisely been avoided. Once the
Security Council had been discarded, the obvious candidate for designating the Ombudsperson was the
General Assembly, where all the UN member states are represented on an equal footing and which is the
closest to a “parliament of man” that the international community has.46 Alternatively, and due to the subject
matter, the Human Rights Council could have been given the task. This is also an intergovernmental body,
albeit with a restricted membership. Instead it is the Secretary-General who nominates the Ombudsperson,
merely after listening to the sanctions committee established by Resolution 1267.47 In that regard, and
without casting any doubt on the capacity or integrity of the two people who have occupied the post until
now, it is signicant that both should come from rst-world countries and that the second is even a national
of a permanent member of the Security Council.48 The General Assembly’s participation could drag out and
politicise the appointment process but it should not be forgotten that it is the most representative body of the
international community and the Charter also gives it a role in maintaining international peace and security
(Article 11)
The fact that it is the Secretary-General who appoints the Ombudsperson is evidence of the latter’s dependence
on the administrative head of the United Nations. This dependence is increased if we take into account the
Ombudsperson is taken on as a “consultant” and their work is monitored and evaluated by the Secretariat.
The incumbent has no authority with regard to the Ofce staff or budget, or managing its resources, which
are “assigned”, and therefore controlled by the Secretariat.49 In fact, in her last report and letter on leaving the
post, the rst Ombudsperson made clear her concern that there were still shortcomings in the “contractual,
administrative and organisational” arrangements, which posed a threat to “the independence and sustainability
of the mechanism”.50 The budgetary shortfalls which beset the UN in general have reached such a point that
45 In the current situation, any permanent member could veto the extension of the Ombudsperson’s mandate. If, on the other hand,
a resolution gives the Ofce a permanent character, it would take a new resolution to replace it and, if one permanent member did
not agree (and vetoed the proposal), that would be enough to prevent it.
46 Title of the work by Paul Kennedy The Parliament of Man. The Past, Present and Future of the United Nations, 2007.
47 See Letter dated 13 July 2015 from the Secretary-General addressed to the President of the Security Council. Document
S/2015/534, where literally it says: «I wish to inform you that, after consulting the Security Council Committee pursuant to resolutions
1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, I have appointed Catherine Marchi-Uhel
(France) as Ombudsperson».
48 The bibliography of the current ofce-holder, who is French, can be found here [Consulted: December 2016]. The previous
ofce-holder, a Canadian, was also a judge in her own country.
49 See the working document Fair and clear procedures for a more effective UN sanctions system. Proposal to the UN Security
Council by the Group of Like-Minded States on targeted sanctions, 12 November 2015 [Consulted: December 2016]. The document’s
author states are Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, Netherlands, Norway, Sweden and
Switzerland.
50 See document S/2015/533 and the letter dated 13 July 2015 on the Ofce of the Ombudsperson to the ISIL (Da’esh) and Al-
Qaida Sanctions Committee’s website [Consulted: December 2016].
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Revista Catalana de Dret Públic, Issue 54, 2017 194
it is difcult to obtain quickly full translations of the information provided by states and petitioners, or which
has to be sent to them.51 The new Ombudsperson also stressed the institutional deciencies of her Ofce in
the report she submitted in August 2016.52
From an institutional set-up point of view, therefore, the gure of the Security Council Ombudsperson has
some very notable deciencies, with a clear impact on the formal independence of this mechanism. It appears
these shortcomings have not prevented the institution from functioning reasonably effectively in its rst
years but the fact that its prestige and way of working could be called into question at any time still poses a
threat.
Functions and how the ofce operates
In the context of the Security Council’s system of smart sanctions, the task of the Ombudsperson and their
Ofce may be regarded as relatively modest. It is only concerned with the stage of delisting an individual or
entity that has been included on the Sanctions List by the 1267 Committee (and only by that committee). As
we have seen above, until the position of Ombudsperson was created in 2009, delisting requests were sent
to a national Focal Point which then processed them, without studying them or making any recommendation
to the Committee. This continues to be the practice for the other sanctions committees, including the Taliban
1988 Committee, while any individual or entity included in the 1267 Committee List has the option of
submitting a petition via the Ombudsperson.
Once the request to be removed from the Consolidated List has been received, a procedure that essentially
consists of three stages gets under way.53 First, the Ombudsperson has to ask for ofcial information from all
the relevant actors, i.e. from “the members of the Committee, designating State(s), State(s) of residence and
nationality or incorporation, relevant United Nations bodies, and any other States deemed relevant by the
Ombudsperson”.54 As happens with national ombudsmen, the “administration” (the UN and the member states
in particular) have a duty to collaborate with the Ombudsperson and provide them with all the information
requested, even if it is of a condential nature.55 This is a key moment in the process from the point of view of
securing fair and equitable treatment for the petitioner. But numerous commentators and the Ombudspersons
themselves have made it very clear they have faced difculties with some states in gaining access to relevant
information, especially intelligence.56 In an effort to make states comply with this duty to collaborate, the
Ofce of the Ombudsperson has reached bilateral agreements with 17 countries, all but one of them in the
Western orbit, while it works with the rest on an ad hoc basis when necessary.57
Either way, full access to complete and reliable information is one of the clearest proofs that an ombudsperson
institution is working correctly and on this point, as on others, the Security Council Ombudsperson still has
signicant shortcomings.
51 See Eckert and Biersteker (2012: p. 22)
52 See Report of the Ofce of the Ombudsperson, submitted pursuant to Security Council resolution 2253 (2015), document
S/2016/671, 1 August 2016, especially paragraphs 36-45.
53 These stages are dened in Security Resolution 2083 (2012). They are also explained in the Procedure section of the Ofce of
the Ombudsperson website [Consulted: December 2016].
54 See Resolution 2253 (2015), op. cit., Annex II, para. 2.
55 However, the terms used by the Security Council resolutions could be stronger. For now, the Security Council only “strongly
urges Member States to provide all relevant information to the Ombudsperson, including any relevant condential information,
where appropriate, encourages Member States to provide relevant information, including any detailed and specic information,
when available and in a timely manner” [Resolution 2253 (2015), para. 60; highlighted in the original].
56 See Eckert and Biersteker (2012: p. 22 and 24. See also the report by the Special Rapporteur Ben Emmerson at A/67/396, para.
38. This has been challenged more recently by Hovell, who thinks that the states are collaborating with the Ombudsperson in a
normal way (and have incentives to do so, since the lack of information on a case can lead the Ombudsperson recommend delisting).
See Hovell (2016: p. 28-29).
57 They are Austria, Australia, Belgium, Costa Rica, Denmark, Finland, France, Germany, Ireland, Liechtenstein, Luxemburg, New
Zealand, Netherlands, Portugal, Switzerland, United Kingdom and United Sates. See document S/2016/96, 2 February, op. cit., para.
16.
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In the second stage of the procedure, called “dialogue”, the Ombudsperson has to transmit the essence of
the information obtained to the petitioner and give them the opportunity to be heard. This Ombudsperson
function is a bonus compared to the traditional judicial process. It makes for a more versatile and proactive
gure who can travel to the country of residence, or at least communicate by telephone or other means, with
no formalities or costs for the petitioner and with greater speed and diligence than any judicial procedure.58
It is also a stage where a lack of material means at the Ofce of the Ombudsperson (travel and means
of communication; translation of documents and interpreters for personal interviews) could frustrate the
expectations generated by this institution.
To conclude this stage, the Ombudsperson draws up a comprehensive report with a recommendation for
removing an individual or entity from the List or not. Surprisingly, the petitioner has no access to this
document, something that the mandate holders themselves and the states that support it have criticised.59
This lack of transparency is particularly serious when the Ombudsperson recommends maintaining a listing,
because that prevents the petitioner or their representatives from knowing the reasons so they might prepare
a better defence in the future. Increasing the transparency of the regime in general, but above all that of the
Ombudsperson in particular, is a widespread demand among analysts.60
In the nal stage, the Ombudsperson has to submit their report to the Committee in writing and present it in
person at an ofcial session. If the Ombudsperson recommends retaining the person or entity on the List, this
decision is taken by default, although theoretically it would be enough for one member of the Committee to
dissent to force a formal decision for or against.
If the Ombudsperson recommends removing an individual or entity from the List, the petitioner is
automatically removed, unless the Committee decides by consensus within a period of 60 days that they
should stay on it. This practical unanimity seems very unlikely but there is an alternative scenario: if just one
member opposes removing the name, the committee chairperson has to submit the question to the Security
Council, which has a period of 60 days to take a decision. At this stage, the consensus of all the members
would not be necessary, only the usual majority of nine votes in favour, including the afrmative votes of the
ve permanent members.
The Ofce of the Ombudsperson publishes its six-monthly reports to the Security Council, which include
information on the Ofce, it procedures and the cases studied, online on its own website.61 On 1 December
2016, the Ombudsperson had concluded 65 cases, after drawing up and presenting the corresponding
comprehensive reports. In most cases (52) the recommendation was to delist the petitioning person or
entity. In all these cases (as when retention on the list was recommended) the 1267 Committee accepted the
Ombudsperson’s recommendation.62
Therefore, despite some predictions that it would have little effect,63 the Ofce of the Ombudsperson has
allowed the system to become more accessible and provide more safeguards. More than the institution as
such, it is the sanctions system that continues to receive criticism from those authors who decry the fact that,
despite the improvements it implies in comparison with the previous situation, the Ofce’s intervention does
not provide petitioners with any legal protection, nor does it equip the procedure with the essential elements
58 See Hovell, op. cit., p. 24.
59 See Fair and clear procedures for a more effective UN sanctions System..., op. cit., p. 7. Apart from the legal insecurity, the
failure to publish the comprehensive reports that have been drawn up makes it difcult to know what the Ofce’s doctrine is and, as
a consequence, to submit viable cases to the Ombudsperson. See document S/2016/96, 2 February, op. cit., para. 36.
60 See Fair and clear procedures for a more effective UN sanctions System..., op. cit., p. 7. Also Eckert and Biersteker, op. cit., p.
21-22.
61 See The Ofce of the Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee’s website [Consulted: December
2016]. The list of Security Council reports can be found here [Consulted: December 2016].
62 The fact that the recommendations were 100% effective does not mean there have not been controversial cases, when some
committee members disagreed with the Ombudsperson’s recommendation. See Eckert and Biersteker, op. cit., p. 18 and 20. The
existence of these disagreements, and the fact there is no case where a member state has taken the question to the Security Council,
are proof that the Ombudsperson’s recommendations have quickly acquired legitimacy and authority.
63 See Kirschner, op. cit., p. 602.
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for making it a fair trial.64 These criticisms, including those that refer to the non-binding character of the
recommendations,65 show a clear lack of understanding of what an ombudsman is, that under no circumstances
can this gure replace the need for an independent judiciary in democratic systems. Furthermore, as some
authors point out, even though from a formal point of view the Ombudsperson process is not the equivalent
of a judicial recourse, it “offers equivalent elements that go a long way to address the due process concerns
and, in essence, constitutes a de facto judicial review”.66 Not only that, for some the Ombudsperson process
is “superior to internationalized judicial frameworks in its capacity to achieve the goals” of a public interest
justice model.67
Rather than deciding whether the Ombudsperson is the equivalent or not of a guarantee that meets due
process demands, we believe the challenge lies in exploiting the potential this institution offers. In our
opinion, the Ombudsperson’s mandate should be gradually extended to the other Security Council sanctions
regimes, with the consequent increase in human and budgetary resources.68 And the Ofce functions could
be expanded to evaluating requests for humanitarian exemption from sanctions and providing assistance to
people or entities that have been delisted but, due to a lack of diligence, continue to be subject to sanctions
in one or more states.69 The 1267 Committee currently has these powers via the respective Focal Points but it
seems clear that the Ombudsperson’s intervention would make the decisions that need to be taken one way or
the other more neutral. At the same time, the possibility of the Ombudsperson acting on their own initiative,
and not just at the request of a third party, could be explored as part of these enhanced powers. It is not an
accident that the most vulnerable people are often the ones that are unaware there are mechanisms to protect
their rights or have no material access to them.
4 Final considerations
The establishment of the Ofce of the Ombudsperson within the framework of the 1267/1989/2253 Committee
sanctions regime has signicantly improved the safeguards of the people and entities affected, although the
system as a whole still has deciencies from the point of view of a fair process.
Focusing on the gure of the Ombudsperson, it has to be admitted it has worked well in practice during
these rst few years. All the Ombudsperson’s recommendations have been accepted and the cases under
way advance without unjustiable delays, a balance sheet that national ombudsmen would in general like
to have. Despite all that, various aspects relating to the conguration and functions of this mechanism need
improving to shield it from spurious political interests and ensure it works well beyond the good will of the
various states.
These improvements should focus on enhancing the Ombudsperson’s functional and material independence.
First, the institution should be turned it into a permanent body with a more democratic method of electing
the mandate holder. Second, it is essential to equip the ofce with sufcient, stable resources so it can carry
out its role. No less important is the need to have access to all the documents required for the cases to be
processed correctly and, within the necessary condentiality limits regarding intelligence information, the
whole procedure needs to be more transparent.
Finally, it would be necessary to expand the Ombudsperson’s functions and mandate to exploit their potential
to the full. On the one hand, to give them a greater presence in safeguarding the rights of people and entities
subject to sanctions, i.e. enable them to act on their own initiative and do so in other stages and for other
64 Ibid, p. 599. Also, Willis, op. cit., p. 736; Mirshahi, op. cit., p. 28.
65 It would be difcult to create a body with the capacity to issue resolutions that are binding on the Security Council within the
framework of the United Nations Charter. For that reason, Special Rapporteur Emmerson proposed that the Security Council should
approve a resolution whereby it voluntarily committed itself to abide by the conclusions of an “independent arbiter” (which could be
the Ombudsperson). See document A767/396, op. cit., para. 23.
66 See Eckert and Biersteker, op. cit., p. 24.
67 See Hovell, op. cit., p. 23.
68 See Fair and clear procedures for a more effective UN sanctions System..., op. cit., p. 13; Eckert and Biersteker, op. cit., p. 25.
69 See Fair and clear procedures for a more effective UN sanctions System..., op. cit., p. 8-9.
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duties, not just the procedure of removing names from the Consolidated List. On the other hand, to bring
the level of safeguards sanctioned people have in line with other Security Council sanctions regimes. The
unique nature of the 1267/1989/2253 Committee regime, which is not limited to a specic state, is not a
sufcient argument for other people suffering similar sanctions imposed by other committees not having an
international safeguard such as the Security Council Ombudsperson.
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