MARCH 30 ROLLOUT OF WATSON INSTITUTE PAPER ON

C O N F I D E N T I A L USUN NEW YORK 000714 SIPDIS SIPDIS DEPARTMENT FOR THE OFFICE OF LEGAL ADVISER JOHN BELLINGER, IO/PSC NSC FOR JUAN ZARATE; TREASURY FOR A/S PATRICK O,BRIEN E.O. 12958: DECL: 04/04/2016 TAGS: PREL UNSC PHUM PGOV PTER ETTC SUBJECT: MARCH 30 ROLLOUT OF WATSON INSTITUTE PAPER ON STRENGTHENING TARGETED SANCTIONS Classified By: Political Minister Counselor William Brencick, for reasons 1.4 (b,d) ¶1. (C) SUMMARY: At a March 30 luncheon at the UN, Brown University's Watson Institute for International Studies unveiled its final white paper on "Strengthening Targeted Sanctions through Fair and Clear Procedures," research for which had been commissioned and sponsored by the governments of Germany, Sweden, and Switzerland. The rollout event, hosted by the Swedish Mission, was attended by delegates from all fifteen Security Council delegations, the European Union Presidency (Austria),the European Commission, Liechtenstein, Belgium, and Canada, as well as representatives from the UN Secretariat, Office of Legal Affairs (OLA),High Commissioner SIPDIS for Human Rights (UNHCHR),Policy Planning unit, the Counter-Terrorism Committee's Executive Directorate (CTED), and the 1267 Al-Qaida/Taliban Committee Monitoring Team. The white paper's emphasis on how the Security Council could address due process concerns when listing and de-listing individuals was received warmly by many European delegations concerned about the challenge to sanctions resulting from critical public opinion and prospective judgments by EU courts currently considering legal challenges to specific designations. Of those who spoke, only Russia challenged the paper's call for an independent "judicial review mechanism" separate from the purview of the Security Council. A Watson Institute co-author of the paper privately told USUN that the Institute did not endorse many of the findings, stating that the views of the sponsoring governments dominated the study. ¶2. (C) SUMMARY CONTINUED: In a bilateral session with Swedish delegates later the same afternoon, USUN welcomed the opportunity for further discussion on how to respond to perceptions that the Security Council acts without regard to due process. USUN also advised the Swedes that the USG is considering what new steps might be possible to strengthen international support for UN sanctions regimes. USUN underscored the USG's considered view that the Security Council is solely responsible for imposing sanctions, and cautioned that the USG would oppose any proposal to devolve Council authority to the Secretariat or any other body. The Watson Institute paper's "recommendations and options to enhance fair and clear procedures" are listed in para 13. END SUMMARY. ¶3. (U) SWEDEN, SWITZERLAND, GERMANY: Representatives of the three sponsoring governments of Sweden, Switzerland, and Germany opened the luncheon by welcoming the Watson Institute's "excellent" study, which focused heavily on strengthening due process in the implementation of UN targeted sanctions, including by stressing the "need for some form of review mechanism to which individuals and entities may appeal decisions regarding their listing." Anders Kruse, Deputy Director-General for European Legal Affairs of the Swedish MFA, remarked that the paper's recommendations (para 13) pertaining to listing and procedural issues should be "non-controversial," but that "the crux is creating a review mechanism." The Swedish government, stated Kruse, supports the creation of an independent advisory panel to "hear" cases brought by individuals challenging their inclusion on UN targeted sanctions lists. Kruse added that this would strengthen member states' participation in implementing targeted sanctions regimes, as many states currently choose not to propose individuals for listing because they feel a transparent due process mechanism does not exist. ¶4. (U) Swiss Deputy Permanent Representative Andreas Baum stressed the need to protect listees' "civil rights," noting that the September 2005 UN World Summit Outcome Document called upon the Security Council "to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and removing them." The review mechanism recommendations were "good," said Baum, but did not "go as far as we would like," implying Swiss desire for a robust judicial review process. Baum also specifically supported the recommendation to appoint a UN administrative focal point to handle all de-listing and exemption requests. German Permanent Representative Gunter Pleuger added that if a national or regional court rules that Security Council resolutions imposing targeted sanctions violate individual rights (note several cases are pending in European courts), such a judgment could undermine the credibility of UN sanctions and compromise the entire targeted sanctions process. ¶5. (U) REVIEW MECHANISM SUPPORT: AUSTRIA, GREECE, LIECHTENSTEIN, UNHCHR: During the ensuing discussion, Austria expressed support for the "number of creative options" proposed for a review mechanism, singling out the proposal for creating an independent panel to review individual cases. The Greek Mission legal adviser echoed strong support for creating an impartial experts panel and also backed the appointment of an ombudsman. The Liechtenstein Mission legal adviser remarked that an independent experts panel might also need access to critical classified information from governments that could determine whether an individual's listing was truly legitimate. (NOTE: This important issue of an independent panel's access to sensitive information, without which the panel would be unable to make an informed judgment, was only glossed over during the luncheon discussion. END NOTE.) A UNHCHR representative referred to the whole luncheon as an important "human rights event," asserting that UNHCHR viewed the Watson Institute paper "entirely as a human rights issue" and applauded the recommendations to enhance due process. ¶6. (U) RUSSIA DISSENTS: The Russian Mission legal adviser challenged the notion that a review mechanism was necessary to enhance due process in UN targeted sanctions regimes. The UN Charter, he noted, "specifically states that the Security Council is responsible for peace and security"; an independent panel review of Council decisions would undermine this authority and create a dangerous and unnecessary precedent. Russia also disputed the idea that a national or regional court decision could undermine a UN sanctions regime. Compliance with Security Council resolutions is a national responsibility of all member states, said the Russian delegate; one decision by a country's judicial branch alone cannot speak for the entire national government. Lastly, Russia urged that general national procedures for reviewing targeted sanctions be studied further, as "we could eliminate many international problems if each state's national procedures were better." ¶7. (U) ARGENTINA: Argentina, speaking as Chair of the 1267 Al-Qaida/Taliban Sanctions Committee, reported that the Committee would continue to study listing and de-listing and that members are "working diligently" on how to address the specific issue of deceased listees. In his national capacity, the Argentine delegate commented that member states also needed to coordinate better within their own governments, as communication is often inefficient between national intelligence agencies and ministries of foreign affairs when determining which individuals should be listed or de-listed. ¶8. (U) UN OFFICE OF LEGAL AFFAIRS: An OLA representative offered a welcome glimpse of a separate paper on due process that the office had commissioned from a Humboldt University professor in Berlin. According to OLA, this paper speaks to four elements required by individuals/entities for due process: (1) right to learn of a ruling against him/her/it as soon as possible; (2) right to address this ruling within a reasonable time frame; (3) right to retain legal counsel; (4) right to have an effective remedy in front of an impartial body. (NOTE: OLA has not shared the contents of this paper with member states. At a March 10 meeting with USUN/L and Department attorneys, UN Legal Counsel Nicolas Michel also discussed this paper, explaining that OLA wanted it to be "helpful" and that OLA did not plan to draft its own separate report. Michel said OLA intended to consider how best to make available the information in the paper "in a way that facilitates and doesn't complicate" discussions on the due process issue. END NOTE.) ¶9. (C) SWEDEN-USUN BILATERAL: At the Swedish Mission's request, USUN PolMinCouns and PolOff met bilaterally the same afternoon with Director-General Kruse and Justice Ministry Deputy Director-General Maria Kelt, MFA Legal Adviser Sophie Falkman, and MFA Desk Officer Niklas Wiberg. While emphasizing the USG's considered view that the Security Council remain solely responsible for imposing sanctions decisions, USUN welcomed the opportunity for discussion on how to strengthen support among member states and critical constituencies for UN sanctions regimes and how to constructively address concerns about due process. USUN recommended educating delegations more about the sanctions process and the associated roles of member states and experts panels. In the absence of information, the "impression of a problem is enough to be a problem in itself." Kruse agreed that this knowledge gap is particularly the case with due process; for example, in the perceived "absence" of adequate due process measures, sanctioned individuals have turned to national and regional courts to plead their cases. While no European court has yet overruled a sanctions committee decision to designate an individual or entity, Kruse warned that "just one successful case could undermine the whole UN sanctions system." Kruse expressed appreciation for the chance to discuss the subject further with the USG. ¶10. (C) NEXT STEPS? Both the luncheon and the bilateral meeting with the Swedes concluded without much discussion of next steps, only the promise of more discussion. Two upcoming events that could potentially surface the issue of due process again are the 1267 Committee's discussions on revising its listing/de-listing guidelines beginning the week of April 10, and the potential release (date TBD) of the due process paper that OLA commissioned. The UN Secretariat Sanctions Branch Chief told us privately that, while he believes the OLA-commissioned paper will be "more moderate" than the Watson Institute study, he still does not want the former to be officially presented to the Security Council in a public meeting or consultations. (NOTE: USUN agrees and would prefer that it be released with minimal fanfare. Along these lines, during the March 10 meeting with Michel, the U.S. cautioned that if OLA circulates the Humboldt University professor's paper, readers would perceive it as having the UN's imprimatur. END NOTE.) ¶11. (C) USUN spoke separately with a co-author of the Watson Institute paper, who assured us that the Institute did not endorse the "more extreme options" in the paper, such as an independent arbitral panel to consider de-listing proposals or judicial review of UNSC decisions. According to the co-author, some of the paper's country-sponsors were disappointed that Watson did not endorse such options. USUN privately expressed concern to Watson about applying judicial norms to assess a political tool, but expressed a willingness to give the issue thoughtful consideration in order to promote international cooperation in targeted sanctions. ¶12. (C) COMMENT: The question still unresolved at the UN is the appropriate forum in which to address due process concerns. There is some support, including from the Secretariat's Sanctions Branch Chief, for using the Informal SIPDIS Working Group on Sanctions, which is holding its first meeting this year under a new chair (Greece) on April 12. Greece strongly supports the Watson paper and would likely use its position as Chair of the Informal Working Group to press for more extreme recommendations. USUN feels the more effective forum is the 1267 Committee, as its focus on counterterrorism and Al-Qaida would provide useful context and perspective that may help keep more radical proposals for "strengthening" due process in check. Once delegations agreed to any recommendations in the 1267 context, we would then work to institutionalize those changes across the sanctions committees. END COMMENT. ¶13. (U) BEGIN TEXT OF WATSON INSTITUTE WHITE PAPER'S "RECOMMENDATIONS AND OPTIONS TO ENHANCE FAIR AND CLEAR PROCEDURES": Recommendations and Options to Enhance Fair and Clear Procedures To address shortcomings of existing UN Security Council sanctions committee procedures, we recommend the following proposals: LISTING ¶1. Criteria for listing should be detailed, but non-exhaustive, in Security Council resolutions. ¶2. Establish norms and general standards for statements of case. ¶3. Extend time for review of listing proposals from two or three to five to ten working days for all sanctions committees. ¶4. To the extent possible, targets should be (a) notified by a UN body of their listing, the measures being imposed, and information about procedures for exemptions and de-listing, and (b) proved with a redacted statement of case and the basis for listing. PROCEDURAL ISSUES ¶1. Designate an administrative focal point within the Secretariat to handle all de-listing and exemption requests, SIPDIS as well as to notify targets of listing. ¶2. Establish a biennial review of listings. ¶3. Enhance the effectiveness of sanctions committees through time limits for responding to listing, de-listing, and exemption requests, as well as by promulgating clear standards and criteria for de-listing. ¶4. Increase the transparency of committee practices through improved websites, more frequent press statements, and a broader dissemination of committee procedures. OPTIONS FOR A REVIEW MECHANISM Beyond procedural improvements, there is a need for some form of review mechanism to which individuals and entities may appeal decisions regarding their listing. Options to be considered include: ¶1. A review mechanism under the authority of the Security Council for consideration of de-listing proposals. (a) Monitoring Team - expand the existing group's mandate. (b) Ombudsman - appoint an eminent person to serve as interface with UN. (c) Panel of Experts - create panel to hear requests. ¶2. An independent arbitral panel to consider de-listing proposals. ¶3. Judicial review of de-listing decisions. END TEXT. BOLTON