1267: SAVING THE AL-QAEDA/TALIBAN SANCTIONS REGIME

C O N F I D E N T I A L USUN NEW YORK 000818 SIPDIS E.O. 12958: DECL: 09/04/2019 TAGS: ETTC PREL EFIN PTER KTFN UNSC SUBJECT: 1267: SAVING THE AL-QAEDA/TALIBAN SANCTIONS REGIME Classified By: Amb. Susan Rice for reasons 1.4 (b) and (d) ¶1. (C) SUMMARY: Bold action is needed to salvage the UN's 1267 al-Qaeda/Taliban targeted sanctions regime. This effective multilateral tool has been seriously undermined by criticisms -- and adverse European court rulings -- asserting that procedures for listing and delisting names are not adequately fair and clear. Although major progress has been made in improving fairness, the Security Council's next 18-month review of the regime in December 2009 offers an opportunity to introduce significant procedural improvements necessary to ensure continued legitimacy and support for this sanctions regime. While some proposals, such as giving designees an ability to seek independent review of their listings, are not viable, the Security Council should adopt a package of forward-leaning innovations to improve Committee decision-making (thereby enhancing the credibility of the 1267 List of al-Qaeda/Taliban-associated individuals),and reinforce the temporary, preventive nature of these measures. ¶2. (C) SUMMARY CONTINUED: The 1267 successor resolution should introduce: time-limited sanctions that expire after six years unless renewed; an enhanced role for the 1267 Monitoring Team to provide independent input into listing/delisting decisions; mechanisms to facilitate Security Council voting on issues stuck in the Committee; improvements to listing procedures; and a commitment to revamp the Focal Point mechanism in a subsequent resolution. These enhancements would build on existing practices and not result in significantly increased workload for the Committee or our bureaucracy. Although it is uncertain whether they will prevent the slow erosion of the regime's perceived legitimacy, these measures -- especially time-limited sanctions -- would go far to rebut critics and courts. Going forward, the United States should welcome the emergence of a smaller -- but more credible and better implemented -- 1267 List. Bold steps to reform the regime now will demonstrate our commitment to using and developing UN counter-terrorism tools, allow us to ensure the 1267 program continues to adapt to the evolving al-Qaeda/Taliban threat, and deflect unhelpful reform proposals that would truly handicap the current sanctions regime. END SUMMARY. THE PROBLEM -------------- ¶3. (C) Bold U.S. action is needed to salvage an irreplaceable UN counter-terrorism tool: the 1267 al-Qaeda/Taliban sanctions regime. This regime, established in 1999 under UNSCR 1267, has successfully frozen millions of dollars in terrorist funds, prevented al-Qaeda/Taliban elements from traveling internationally and currently stands as a symbol of the international community's solidarity in the face of the al-Qaeda/Taliban threat. Yet concerns about the fairness of the Security Council's procedures used to sanction individuals -- combined with errors on the 1267 Committee's List, including inappropriate listings that should have been removed a long time ago -- have gravely undermined the regime's credibility and perceived legitimacy. Recent European court cases challenging the regime's implementation have further underscored its deficiencies. ¶4. (C) Although the Security Council has already made major progress in improving the way it applies these sanctions, there remain serious concerns about the fairness of the regime's procedures. Dead people are still on the Committee's List, de-listing requests get stuck in Committee limbo and designees who want off the List must navigate an opaque, Kafkaesque process. The United States, which played a major role in creating and developing this regime, should now lead in charting its future. THE OPPORTUNITY -------------- ¶5. (C) The Security Council's December 2009 review of the 1267 regime offers an opportunity to introduce new fairness enhancements and reinvigorate a U.S. commitment to the regime. The last two 18-month reviews of the resolution, which resulted in the adoption of UNSCR 1735 in December 2006 and UNSCR 1822 in June 2008, introduced major procedural improvements. These reforms included requirements on states to submit a statement of case when proposing designations and for the 1267 Committee to produce publicly-releasable narrative summaries of their reasons for listing. Because these reforms are still relatively fresh, there may be a temptation to stick with the status quo in the next resolution, especially considering that many innovations introduced in UNSCR 1822, such as reviewing all the names on the List, have not yet been completed. The status quo, however, is not sustainable -- the new UNSCR must continue the regime's trajectory of reform if the regime is to remain viable. ¶6. (C) Many regime critics would prefer a more thorough - and dangerous -- overhaul. Human rights groups and some European countries have focused on the lack of an independent and institutionalized review process. They have proposed that the Security Council establish an independent panel to which individuals could appeal in the event the 1267 Committee rejects their delisting request. Establishing such a mechanism is problematic: a review panel would never have access to as good information as Member States, plus its establishment could raise thorny issues regarding the Security Council's primacy under the UN Charter. Regardless of the proposal's merits, key Security Council members -- notably Russia -- have already rejected it. Because of the difficulty in introducing an independent review mechanism, the Council should instead focus on the need for better prior review of designations at the domestic level, where States are best positioned to ensure adequate judicial standards of due process. ¶7. (C) At the same time, the Council needs to continue to take serious steps to improve the fairness and transparency of 1267 procedures. To respond to the critics and address fairness concerns raised by the courts, a package of new enhancements for the 1267 successor UNSCR must be bold and innovative. This exercise should be about improving the quality of decision-making in the 1267 Committee, thereby improving the List's credibility - and the sanctions regime's longevity. It should also include new mechanisms to compel 1267 decisions and reinforce the temporary, preventive nature of the measures. THE PROPOSALS -------------- ¶8. (C) The following enhancements should be included in the 1267 successor resolution in December 2009: -- Time-limited sanctions that expire after six years unless renewed by the 1267 Committee; -- An enhanced role for the 1267 Monitoring Team in collecting information that will help inform the 1267 Committee's decisions; -- A mechanism to facilitate Security Council voting on delisting petitions that have gotten stuck in the Committee; -- New procedural enhancements for listing new names; -- A commitment to overhaul the Focal Point mechanism (the procedure through which an individual asks to be delisted). ¶9. (C) Among these proposals, time-limited sanctions offers the best opportunity to reinvigorate the regime. There is a growing perception, particularly from European capitals, that the current sanctions process relegates individuals to a black hole from which they cannot emerge -- even when new information is introduced affecting the original listing decision or even after death. The boldness of this attention-grabbing proposal would underscore our resolve to salvage the regime. It would also reinforce our argument that the imposition of these measures is a temporary, preventive measure and not a punishment for a crime. We would also see fewer states discouraged from proposing new listings out of fear that a designation can never be undone. Significantly, time-limited sanctions would address some of the fairness concerns raised by courts. ¶10. (C) Time-limited sanctions would build off the current Committee practice (established in UNSCR 1822) of reviewing names every three years. Since, as part of this review, we have already committed to producing new and updated information on a listing, the introduction of this innovation would not create a wholly new workload for either the Committee or our domestic bureaucracy. Under time-limited sanctions, the 1822 review procedures would be followed identically, but with a different final stage: the default outcome of the process would be the expiration of a designation instead of its retention. There is a risk that time-limited sanctions might creep into other sanctions regimes, creating new work for our overstretched bureaucracy and affecting the durability of sanctions imposed in other contexts (e.g., Iran, North Korea). These risks are manageable, however, particularly as the United States may use its permanent status on the Security Council to block the introduction of such practices into other contexts. Finally, we note that the expiration of a 1267 designation is disconnected from our U.S. domestic sanctions program -- a UN sanctions expiration would result in no U.S. obligation to de-list domestically and therefore would not generate new workload for our domestic counter-terrorism finance program. ¶11. (C) The other proposed enhancements would address other long-standing and well-documented regime deficiencies. Beefing up the Monitoring Team's role would provide a new and valuable source of independent input into Committee decisions. Bringing more decisions to the Security Council, where the Council's normal voting rules apply instead of the consensus required in Committee, could help force decisions on issues that have languished in Committee. New listing enhancements, such as requiring that the Committee approve a publicly-releasable narrative summary at the same time as approving a designation, would enhance transparency and help states implement the measures more effectively and expeditiously. ¶12. (C) Revamping the Focal Point mechanism, which was established in UNSCR 1730 in 2006 and applies to all UN targeted sanctions regimes, would also be a significant step forward. While Focal Point reform and the 1267 successor resolution are two different exercises, the conversations are logically intertwined. Changes to the Focal Point procedures could significantly enhance the perceived fairness and transparency of the 1267 regime. USUN proposes developing and sharing in fall 2009 draft elements for Focal Point reform, with a view to negotiating a new Focal Point resolution in the first six months of 2010. This would ensure that the conversations inform each other, without having to negotiate two major resolutions simultaneously. WAY FORWARD -------------- ¶13. (C) Would this package of proposed enhancements satisfy international courts, especially in Europe? Would it stop the slow erosion of this tool's perceived legitimacy? The answers are unknown. These measures, however, combined with a redoubling of U.S. efforts to scrub the 1267 List of inappropriate entries, would go far toward restoring confidence in the regime and heading off more radical and dangerous proposals. Although the lack of independent review will remain a concern for many, these enhancements are forward-leaning enough to impress many critics and courts, even if they do not satisfy all. ¶14. (C) But salvaging this tool will require something of a paradigm shift in how the United States views and uses it. New safeguards will probably make it harder to designate and/or retain on the list some individuals whom the United States believes are linked to al-Qaeda. This will be particularly true in cases where we lack recent and convincing declassified information to justify a designation. The 1267 List will likely be pared down from the five hundred or so names now on the List. Instead of viewing this consolidation as a failure to designate terrorists, the United States should welcome the emergence of a smaller -- but much more credible and better implemented -- List. The preservation of the tool, and the global consensus it represents, is far more important than the designation of a handful of marginal figures whom we can always still target through our domestic sanctioning authorities. ¶15. (C) If we fail to accept this shift, then the 1267 sanctions regime will remain mired in critical debate, fail to evolve in pace with the threat and gradually atrophy as states shy away from using and defending a discredited regime. If we successfully adjust, however, the al-Qaeda/Taliban sanctions regime can endure for yet another decade and the United States can renew and fortify its commitment to using the United Nations and other multilateral tools to respond to terrorism. RICE