Thank you very much for that question.
Yes, I worked very closely with a former colleague at the Watson Institute at Brown University, Sue Eckert, who was the assistant secretary for export controls in the Clinton administration.
We made a number of recommendations and suggestions for ways of addressing what was fundamentally a very serious problem, the absence of due process for individuals who were designated, individuals who were put on the list.
When the other nations first started applying individual sanctions, I asked someone at the secretariat who was overseeing the policy, “Did you think about the human rights implications of having the Security Council listing individuals?” At the time, he said, they were so concerned with changing and amending the comprehensive sanctions against Iran that they simply didn't ask this question; no one even thought about it. they thought they might be going after politically exposed persons, but no one thought about due process rights of individuals.
We were commissioned by the governments of Switzerland, Sweden, and Germany to explore different ways of addressing this problem at the UN level. We didn't give policy advice. We simply organized the different options that were on the table and evaluated them in terms of the extent to which these different institutional options would address the fundamental due process violations of notification, access, right to a hearing, and effective remedy.
Ultimately, the Security Council, although there was a lot of opposition in 2006, things changed in 2008 or 2009, probably because of the change in administration in the U.S. particularly. There was the introduction of the office of the ombudsperson. In fact, the first ombudsperson was a Canadian national, I think, Kimberly Prost. She was a former prosecutor at the ICTY.
What Kim did in the office is interesting. I tell this to my students of institutions; it's a very interesting story. She actually, in 18 months, managed to take an office that was strongly opposed by permanent members of the Security Council and in effect give it a reverse veto. That means that recommendations made by the ombudsperson are binding unless all 15 members of the council overturn those recommendations. I talked about the improvement in legal procedures. This is actually quite a dramatic and quite a significant development.
My legal colleagues will not agree that the ombudsperson has effective remedy, because ultimately, the decision remains at the Security Council level. But I argue that not a single one of the ombudsperson's recommendations has ever been overturned by the council, at this point in time. I think it's actually a fairly innovative and important mechanism.
The reason we argued so strongly for it was that the Security Council's individual designations were increasingly being delegitimized by legal suits, particularly in European courts. Even with the EU trying to implement UN sanctions, it was finding it was losing about two-thirds of the cases relating to designations in the European Court of Justice. That has levelled off to about 50% today.
In the EU, of course, it's handled differently. Here in Switzerland we're not in the EU, but in the European Union, it's handled through the court system.
I think it's important that when making individual designations, these questions be addressed and taken seriously; otherwise there are fundamental due process violations. All I would argue—this is perhaps a [Inaudible—Editor statement—is that all individuals have rights, even individuals charged with committing war crimes and other criminal activities of [Inaudible—Editor] terrorism cell. I think it's important to introduce these kinds of measures and to take this as seriously as it deserves.
Our current campaign is to some extent to get the UN to extend the mandate of the ombudsperson from the counterterrorism committee under Resolution 1267 to other committees, because the issues are fundamentally the same.