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

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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

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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,

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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