Talking export controls with Kim Prost

The Office of the Ombudsperson of the 1267 Committee was created by Security Resolution 1989, adopted on 17 June 2011, and Resolution 2083, adopted on 17 December 2012. It was created to provide an independent and impartial Ombudsperson service reviewing requests from individuals, groups, undertakings or entities seeking to be removed from the Al-Qaida Sanctions List of the Security Council’s Al-Qaida Sanctions Committee. Kimberly Prost is the first person to fill the position.

In March 2005, Judge Prost joined the United Nations Office on Drugs and Crime (‘UNODC’) as Chief, Legal Advisory Section. In that position she led a team responsible for assisting countries with the legal implementation of the drug, crime and terrorism conventions and the related delivery of technical assistance projects.

WorldECR: You have had an illustrious career at the highest levels of international law. You were a federal prosecutor with the Canadian Department of Justice, head of the Criminal Law Section of the Commonwealth Secretariat, and a judge before the International Criminal Tribunal for the former Yugoslavia. How did you come to hold the office of the Ombudsperson of the UNSC’s 1267 (Al-Qaida) Committee? It must have been a daunting prospect, given that the office (nor indeed, anything like it within the UNSC) had previously existed? Did you have any fears about taking the role?

Kim Prost: Thanks for the term ‘illustrious’. Evidently my career path has been somewhat eclectic in nature! I have been very fortunate to have the opportunity to serve in different capacities domestically and internationally. With respect to this particular post, when I was finishing at the Tribunal, I had no clear idea of what to do next. I was looking at options back with the United Nations in Vienna where I had come from and in Canada. I was also just considering general opportunities and the circular relating to this job was brought to my attention. I thought that with my background as a judge, with counter-terrorism experience, internationally and domestically, I might be a suitable candidate, so I applied. It appears that my mix of experience was of interest and a few weeks later I was appointed by the Secretary General. I was quite excited to have the opportunity to develop the Office of the Ombudsperson in accordance with the Security Council mandate. At the same time, it was indeed quite daunting and frightening because there were major risks. Many believed the position to be just a ‘fig leave’ and in fact I remember a Canadian reporter asking me if I considered myself to be one! But for me, it was a challenge and risk I was willing to take because of the pressing need for a fair process mechanism both for the implicated individuals and entities and for the credibility and effectiveness of the sanctions regime.

WorldECR: The Office of the Ombudsperson was created after the ECJ, in its findings in the Kadi I case, cast doubt on the process by which the United Nations Security Council designated individuals and placed them on its terrorist list. It also criticised the absence of an effective procedure by which individuals could challenge their listing. Could you describe your role as Ombudsperson, and the procedure by which you examine the applications brought to you? Do you think your office has corrected some or all of the ECJ’s criticisms?

Kim Prost: As I have always acknowledged, the ECJ decision in Kadi I was a driving force in the development of the Office of the Ombudsperson. However, it is important to remember that it was certainly not the sole factor which led to its establishment and the aim was never to respond to the position of any individual regional or domestic court. Rather, for a considerable period of time States, academics and others had been critical of the lack of fair process and recourse in the context of the use of targeted sanctions and the Kadi I decision added a judicial voice to those criticisms. As a result, in developing the Office I have concentrated on fair process and have strived to develop a practice which adheres to the fundamentals precepts of fairness.

The procedure has three phases. Listed individuals or entities apply to me directly seeking delisting. Once I am satisfied that they have addressed the reasons given for their listing, I circulate the request to the Al-Qaida Sanctions Committee and to all relevant States to start the information-gathering phase. In this period I try to gather pertinent material through the responses from States, from the monitoring team which assists the Committee and through independent research. After a four-month period (which I can extend once for up to two months), I move to the dialogue phase which is a two-month period (which I can also extend once for two months.) During this period, I will engage with the Petitioner, usually by way of a face-to-face meeting. In this interview, I will disclose all the gathered material – except anything which is confidential – with the aim of ensuring that the Petitioner ‘knows the case’. This dialogue will also provide an opportunity for the Petitioner to respond to that information and put forward material. I will then take all of the information gathered and present it to the Committee in a comprehensive report. In this way, I am satisfied that the process meets fundamental requirements of fairness – that the Petitioner knows the case and has a chance to respond and to be heard by the decision-maker. In that report, I review and analyse all the material to a set standard – whether there is sufficient information to provide a reasonable and credible basis for the listing presently – and make a recommendation to the Committee regarding the listing.

Importantly, under the current resolution, if I recommend delisting the individual or entity will come off the list in 60 days unless there is a consensus decision of the 15 members of the Committee to the contrary or the matter is referred to the Security Council for a vote. To date there have been no overturns or referrals. As a result, in each case the Petitioner has benefited from an independent review of the underlying information and that review has formed the basis for the decision on the delisting request in every instance. I think that in practice, the procedure addresses the fair process concerns identified by various critics including the ECJ. However, as to whether in principle the ECJ or other courts or bodies will consider it meets requisite standards is of course a different issue.

WorldECR: Can you say something about the quality and origin of the information that you are entitled to access as Ombudsperson? Is there other information you would like to be able to see but currently cannot? What are the obstacles?

Kim Prost: The cooperation I receive from States is very strong and in many cases I am also able to gather considerable information through open sources and with the assistance of the monitoring team. However, the major challenge is gaining access to confidential or classified material underlying listings. This is a significant hurdle to the effectiveness of the process and I am still struggling with it. I have 12 arrangements/ agreements with States for the sharing of such information but more are needed – particularly with States which are often implicated in the cases. I continue to work hard on expanding the network of arrangements with the aim of gaining better access to key information.

WorldECR: UN Special Rapporteur Ben Emmerson QC has raised the very serious concern that the UNSC is insufficiently robust in excluding evidence that may have been obtained by the use of torture. Has your experience to date as Ombudsperson allayed any concerns that you might have had – or exacerbated them?

Kim Prost: Until recently I did not have any cases where the issue of torture was a factor ultimately in the case. Nonetheless, I had developed a policy on the issue which is publically available on my website. While Mr. Emmerson and I may have varying views as to the approach to the issue, our conclusion is the same. That is, if I am of the view – to the applicable standard – that information underlying the listing has been obtained through torture, I will not consider it in my analysis. In addition, I am fully satisfied from recent experience that concerns about information from torture can be addressed through the Ombudsperson process in practice.

WorldECR: What criteria do you apply in reaching your decisions? Is it sufficient that a listed entity has demonstrated a change or discontinuation in behaviour to warrant a delisting?

Kim Prost: As indicated, I assess the information to determine if it is sufficient to provide a reasonable and credible basis for the listing presently. Also, because I am looking at sufficiency at the time of the delisting request, I can take into account information from a Petitioner to demonstrate changed circumstances. This is one of the advantages of the Ombudsperson process over classic judicial review in that new information and current circumstances can be considered.

WorldECR: How many applications have been brought to you so far – what have been the results of those? And what do you think those figures indicate?

Kim Prost: Fifty-one applications have been made to date. As some of the cases involve both individuals and entities the figures regarding results do not necessarily match up. Thirty-nine cases have been concluded resulting in the delisting of 32 individuals and 28 entities, including removal of one entry as an alias. In three cases delisting has been denied. In one case the petition was withdrawn and in three cases the Committee delisted the individual or entity by separate decision before the Ombudsperson process was complete.

I don’t draw particular inferences from the numbers as each case is assessed on its individual factors. I think at the beginning there were some cases which were pretty straightforward, once all the information was gathered and presented to the Committee and this accounts for several delistings early on. However, I would say that as time goes on the cases are becoming increasingly complex.

WorldECR: You have been critical of the fact that the ECJ in the Kadi II case made very little mention of the creation of the Office of the Ombudsperson. Please could you explain what the issues are here, and how a different approach might have contributed toward strengthening the Ombudsperson role?

Kim Prost: First, I would emphasise that my comments on the judgment are made with full respect for the court and its decisions. Moreover, I note that I have always been, and remain, neutral as to the outcome of any litigation related to the Al-Qaida sanctions regime or targeted sanctions more generally. My concerns centre on the analysis of the court, what was said and more importantly, what was not said. I look back at the Kadi I judgment and I note that the court very clearly justified its intervention on the basis that at that time, there was no fair process mechanism in place at the international level. Given that approach, I find it both puzzling and disappointing that the court in Kadi II gives no consideration whatsoever to the establishment and development of the Office of the Ombudsperson. In the face of the extraordinary steps which had been taken by the Security Council to develop such a mechanism, and the efforts of so many States in support of the same, this lack of consideration, with respect, has a direct impact on future efforts to enhance the Ombudsperson’s role and fair process generally at the international level.

Box: Background: Kadi and the creation of the Ombudsperson

The Kadi case is well known in the world of sanctions and international law. Just after 9/11, Yassin Kadi was added (along with others) to the United Nations Security Council’s blacklist of people alleged to be connected with Osama bin Laden and terrorism. Mr Kadi’s challenges in the European Court of Justice (‘ECJ’) to the absence of reasons and due process in his designation (Kadi 1), and to his re-listing (Kadi 2) have been much discussed. Less talked about are the effects on due process in the United Nations Security Council, in particular the creation of the Office of the Ombudsperson.

The ECJ in Kadi 1 had said in 2008 that effective judicial review required the European courts to review the European Union’s implementation of UN sanctions measures, in part because there was no court or other effective method of challenge for listed individuals at UN level. The ‘focal point’ system whereby States could propose a de-listing in the Security Council was, as the ECJ put it, ‘still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights’ (§§ 342-6).

In response, the UN Security Council passed Resolution 1904 on 17 December 2009, establishing an Office of the Ombudsperson, to assist the Security Council in considering applications for de-listing relating to one (and only one) of the UN’s sanctions lists – the Al Qaida terrorist list. A second resolution expanded the Ombudsperson’s powers, but the General Court in Kadi 2 court commented that ‘the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee’ (§128).

Maya Lester, Barrister, Brick Court Chambers, London