Introduction
I am honoured to stand before you this evening to explore the complex intersection of international sanctions and the rule of law. However, due to time constraints and guided by the maxim ‘the less you know, the more you say’, I will limit the discourse to a much narrower area: I would like to share my experience so far with the practical relationship between the rule of law in the international setting and international sanctions, with reference to due process in the United Nations (UN) Security Council ISIL (Da'esh) and Al-Qaida Sanctions regime (‘the 1267 Sanctions regime’) and its implications for the sanctioned nationals and entities of the Member States in Asia.
But before going any further, I wish to thank the organisers of this event, the Centre for Asian Legal Studies at the Faculty of Law, National University of Singapore – in particular Associate Professor Dr Jaclyn L Neo, in her capacity as the Director of the Centre for Asian Legal Studies, and Assistant Professor Dr Dian Shah. Thank you for making it possible for me to speak this evening. I also appreciate the main sponsor of this event, the Jones Day Foundation. And, of course, the presence of the Chief Justice of Singapore adds a sparkle to this event. Thank you for your company, Chief Justice.
Singapore and the Rule of Law
The 2023 edition of the World Justice Project ‘Rule of Law Index’Footnote 1 shows that over six billion people now live in countries where the rule of law is declining. This was corroborated by Mr Volker Türk, the UN High Commissioner for Human Rights, who admitted during his briefing on the Secretary-General's ‘New Vision for the Rule of Law’ on 4 August 2023 that ‘[t]oday, SDG16 – like so many of the SDGs – is off track … Many rule of law and justice institutions face a crisis of capacity and a crisis of public trust. Millions of people have no effective access to justice, and live in conditions of profound injustice.’Footnote 2 However, Singapore has maintained its global ranking in 2023 at 17,Footnote 3 a spot it held in the 2022 report,Footnote 4 securing the highest ranking among the ASEAN nations. Thus, as I deliver this lecture, it is comforting to know that I am in a country that respects the rule of law.
The Rule of Law in the International Setting
The international community has recognised the indisputable significance of the rule of law and committed itself, inter alia at the 2005 World Summit, to ‘an international order based on the rule of law and international law’.Footnote 5 However, some academic writings have suggested that the reason for the broad consensus on the importance of the rule of law lies in the doctrine's own vagueness.Footnote 6
While there are various interpretations and understandings of the rule of law, the then UN Secretary-General Kofi Annan declared in a 2004 report that ‘[t]he “rule of law” is a concept at the very heart of the Organization's mission.’Footnote 7 The concept, in summary, refers to a principle of governance that encompasses, among other things, fairness in the application of the law, due process, the avoidance of arbitrariness, and procedural and legal transparency.Footnote 8
In the context of sanctions, as set out by Secretary-General Kofi Annan in 2006, the minimum standards required to ensure fair and transparent procedures include the following four basic elements: (1) the right of a person against whom sanctions have been taken to be informed; (2) the right of such a person to be heard; (3) the right to review by an effective review mechanism; and (4) a periodic review of sanctions by the Security Council.Footnote 9
International Sanctions
The primary international organisation that imposes international sanctions is the United Nations, with the responsibility carried out by its principal organ, the Security Council – Articles 24 and 25 of the United Nations Charter provide the authority.Footnote 10 Under Chapter VII of the Charter, the Security Council imposes sanctions through resolutions passed by the Council's Member States. In Resolution 1373, the Security Council also calls upon all States, inter alia, to prevent and suppress terrorist attacks and to take action against the perpetrators of such acts, including through targeted financial sanctions.Footnote 11 Many states have therefore established autonomous sanctions regimes. Other international organisations, such as the European Union and the Organization for Security and Co-operation in Europe (OSCE), have also adopted sanctions, although their scope is less extensive than that of the United Nations.
The UN Department of Political and Peacebuilding Affairs summarised in September 2023 that
[t]oday, there are 15 ongoing sanctions regimes [imposed by the Security Council] which focus on supporting political settlement of conflicts, nuclear non-proliferation, and counter-terrorism. Each regime is administered by a sanctions committee chaired by a non-permanent member of the Security Council.Footnote 12
Some of the sanctions regimes are as follows: Al-Shabaab Sanctions, the 1267 Sanctions regime, Libya Sanctions, Iraq Sanctions (1518 Sanctions), the Democratic Republic of the Congo Sanctions, Sudan Sanctions, 1988 Sanctions (Taliban Sanctions), and the Democratic People's Republic of Korea (DPRK) Sanctions, to name a few. Only the 1267 Sanctions regime has some form of due process, with the establishment of the Office of the Ombudsperson in 2009.
The 1267 Sanctions Regime
As I mentioned earlier, I am focusing on the 1267 Sanctions regime, an international ‘targeted sanction’ (some call it ‘smart sanction’),Footnote 13 as opposed to the comprehensive sanctions that used to be imposed before their negative effects outweighed their positive ones. Comprehensive sanctions are broad measures that affect entire countries in almost all spheres of life. Iraq, for instance, faced the humanitarian consequences of the UN sanctions imposed after its invasion of Kuwait in 1990.Footnote 14 Today, Iran and North Korea continue to grapple with similar repercussions. Just the other day, a consular officer who had spent his time in Iran during the pandemic told me what he had seen: Hospitals were severely lacking in vaccines, yet the black market for vaccines was thriving, fuelled by corruption. One may not be off the mark to think that the imposition of comprehensive sanctions encourages corruption, which undermines good governance based on the rule of law.
The 1267 Sanctions regime was established in 1999 in response to the 7 August 1998 bombings of the US embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, by Osama bin Laden and members of his network. Resolution 1267, adopted by the Security Council, initially provided for sanctions against the Taliban in order to secure the turnover of Osama bin Laden to the appropriate authorities of a country where he had been indicted.Footnote 15 Resolution 1333 (2000) extended the sanctions to the Al-Qaida organisation.Footnote 16 Subsequent resolutions would separate the Taliban into a separate sanctions regime, while ISIL (Da'esh) was included under the 1267 Sanctions regime.
Following the establishment of the 1267 Sanctions regime, there has been a significant number of listings. In fact, as of today, this regime has the highest number of listed individuals and entities. Of the just over one thousand listed under the UN Sanctions regimes, 256 individuals and 89 entities are listed under the 1267 Sanctions regime, of which at least 44 are from ASEAN countries.
Terrorism Threats and the 1267 Sanctions Regime
Let me digress a little here. Some may wonder: Do ISIL (Da'esh) and Al-Qaida still pose a threat to international peace and security today? And is the 1267 Sanctions regime still necessary?
My view is that the 1267 Sanctions regime is still needed. Preventing the easy flow of funds, banning free travel, and enforcing an arms embargo against those involved can mitigate the spread of terrorist threats. The UN Analytical Support and Sanctions Monitoring Team reported in July 2023 that for South-East Asia, the ‘[i]ncreased counter-terrorism pressure in the region accounted for the relatively low number of terrorist attacks during the reporting period. Successful counterterrorism operations against ISIL-South-East Asia (ISIL-SEA, QDe.169) and Abu Sayyaf Group (ASG, QDe.001), especially in the Philippines, provide a reminder of the residual threat due to the substantial number of terrorists remaining in the region.’Footnote 17
Indeed, on 5 March 2023, The Vibes, a Malaysian online news portal, reported that the Islamic State (IS) had established a media platform called Al Malaka Media Centre in Malaysia, which is linked to IS media outlets in Indonesia and the Philippines.Footnote 18 According to the report, Al Malaka Media Centre provides content on the dark web. It seeks to use its radical ideology to destabilise the current administration in Malaysia by lending support to unnamed domestic entities that it describes as a ‘radical political party and an established radical organisation’.Footnote 19 This may be propaganda, but that doesn't mean it should be dismissed out of hand.
Terrorism, the 1267 Sanctions Regime, and the Rule of Law
So, knowing terrorism threats still exist, why adhere to the rule of law within the 1267 Sanctions regime? The original stance of a Permanent Member of the Security Council regarding the non-notification of individuals or entities designated under this regime (ie, depriving them of the right to be informed of sanctions imposed against them) is summed up by the statement: ‘We don't notify terrorists; we kill them’.Footnote 20
Individuals and entities may be listed under the 1267 Sanctions regime without their knowledge or without any opportunity to be heard prior to listing. Individuals and entities could also be listed at the request of a Member State on the basis of little or flimsy information. Only Resolution 2610 (2021) requires evidence-based information for listing.Footnote 21 There is no due process or fair and clear procedures for individuals and entities. By the time they realise it, their assets have already been frozen, travel bans imposed, and they are stigmatised as terrorists. Information that an individual or entity is involved in, or simply ‘associated with’ ISIL (Da'esh) or Al-Qaida can be the reason for listing when a Member State submits the name to the 1267 Sanctions Committee. If the submission is accepted by consensus, the name will be listed accordingly.
Although the term ‘associated with’ has been defined in a resolution to include ‘participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of’Footnote 22 the organisation subject to sanctions, it may still be broad enough to include a legal practitioner or a law firm that may have inadvertently acted for a client with links to Al-Qaida or ISIL (Da'esh) organisations. Making donations to charitable bodies without being aware of their connections to these organisations may also be grounds for listing.
In fact, before the establishment of the Office of the Ombudsperson, listed individuals were dependent on the goodwill of their national or residence states or the designating states to have their names removed from the list. This can take years. Meanwhile, their assets are frozen; they are unable to operate or open a bank account; they are unable to work (and, if employed, they are only allowed to receive a portion of their salaries sufficient for living expenses); they are banned from travelling; and they are ostracised by their communities. The stigma will continue even after the listed individuals have passed away: the estates of the deceased will continue to be sanctioned.
It is not only the listed individuals who are made to suffer but also the members of their families, resulting in what I call the ‘collective impact’ of sanctions. This impact, however, can be disproportionate to the intended purpose of the sanctions. A lack of any semblance of fairness and justice in the enforcement of the sanctions measures can lead to a backlash where younger family members of the listed individuals might end up becoming terrorists or supporters because of their experience of suffering and perceived injustice and unfairness. In other words, the ‘collective impact’ can create conditions that could push those affected into terrorism. Consequently, the original objective of the sanctions regime is not achieved but undermined. This is a simple reason why the rule of law is critical, regardless of the activities the sanctions regime is designed to counter.
The sting of the sanctions measures is felt at the level of implementation/enforcement, which is not carried out by the Security Council but by the Member States, which are obliged under Article 25 of the United Nations Charter to comply by enacting domestic laws to accommodate such measures. In Singapore, this is the United Nations Act 2001 Footnote 23 through regulations made by the Minister. I also note that Singapore has its own autonomous sanctions regime under the Terrorism (Suppression of Financing) Act 2002,Footnote 24 which refers to the 1267 Sanctions regime. Unlike the United Kingdom and the European Union, I have not encountered any reported case filed in Singapore challenging the regulations.Footnote 25 It is also interesting to note that Singapore directs those designated under the 1267 Sanctions regime to submit their delisting requests directly to the Office of the Ombudsperson.Footnote 26
The Office of the Ombudsperson: Due Process with Fair and Transparent Procedure
The establishment of the Office of the Ombudsperson has allowed listed individuals and entities to submit their petitions for delisting directly to the Ombudsperson. The Office's primary function is stipulated in Security Council Resolution 1904,Footnote 27 namely to assist the 1267 Sanctions Committee in its consideration of delisting requests from listed individuals and entities. In performing this task, the Ombudsperson shall act ‘in an independent and impartial manner and shall neither seek nor receive instructions from any government’.Footnote 28
The assistance given by the Ombudsperson to the Committee in a delisting request takes the form of a comprehensive report, which includes a reasoned recommendation on whether to retain or delist as requested. The recommendation is made after analysing all the information gathered for the case from the designating State and relevant States, from open sources, and from the requesting listed individual or entity and its witnesses, if any, given during in-person or online interviews. The requesting listed individual or entity may be represented by counsel throughout the process. Presently, lawyers representing listed individuals and entities do so pro bono. So far, most of the lawyers are from European countries, with some from the Middle East. I have yet to meet any lawyers from East, South, and Southeast Asia, let alone the ASEAN countries. I hope that Singaporean lawyers will take up the challenge.
When analysing the information gathered, the Ombudsperson is not bound by principles of evidence law of any state, such as the hearsay rule. All information is received and considered on the basis of whether it is credible and reasonable.
The Sanctions Committee decides whether to accept or reject the delisting request of a listed individual or entity, but is guided by the recommendation of the Ombudsperson. If the recommendation is to retain the listing, that is the end of the matter. If the recommendation is to delist, then the recommendation stays unless all fifteen Members of the Sanctions Committee, drawn from the respective fifteen Members of the Security Council, disagree. This is what is known in the process as ‘reverse consensus’.
If there is no consensus to disagree with the Ombudsperson's delisting recommendation, a Member of the Sanctions Committee can request the Chair of the Committee to submit the matter to the Security Council for a decision. Pending the decision of the Security Council, the delisting recommendation is stayed. Since the establishment of the Office, such an event has yet to happen.
In the case of Mohammed Al-Ghabra v European Commission, the Office of the Ombudsperson was recognised by the Court of Justice of the European Commission as the proper forum to approach for delisting under the 1267 Sanctions regime. The Court noted that Resolution 2161 requests that
States ‘encourage individuals and entities that are considering challenging or are already in the process of challenging their [inclusion on the Sanctions Committee list] through national and regional courts to seek removal from [that list] by submitting de-listing petitions to the Office of the Ombudsperson’. There is no rational reason for failing to do so…Footnote 29
To date, the Office has completed 105 cases, of which seventy per cent have been recommended for delisting. One case takes between eight to sixteen months to complete. A notable hurdle in the process is the prolonged wait for information from Member States. The Office lacks the authority to compel information through subpoenas, which is why much is left to the goodwill of the Member States – who, in turn, have to consider issues of sovereignty and national security before sharing information. This is not an ideal situation. Consequently, there is an ongoing dialogue with Member States to find ways to strengthen the process.
The establishment of the Office for the 1267 Sanctions regime is a positive step in addressing the injustice and unfairness that some of those listed may experience, particularly as their fundamental human rights are directly affected. It also provides an avenue for those whose earlier reasons for listing are no longer valid to seek delisting. In addition, the procedural mechanism provided helps enhance the legitimacy of the Sanctions regime, as national and regional courts may no longer have a basis for intervening in the implementation and enforcement of the sanctions measures by Member States.
Based on the mandate given and the performance of the Office, it is reasonable to conclude that it has satisfied the basic rule of law principles elaborated above, namely fairness in the application of the law, due process, avoidance of arbitrariness, and procedural and legal transparency. In so far as it provides petitioners with the right to be heard and the right to review by an effective review mechanism, the Ombudsperson's procedure fulfils several of the minimum due process standards set out by Kofi Annan in 2006 for ensuring fair and transparent procedures for sanctions regimes.Footnote 30
Unfortunately, to date only the 1267 Sanctions regime provides this avenue of recourse. The other sanctions regimes do not have a similar independent mechanism for ensuring due process for listed entities and individuals. While there is a ‘Focal Point for De-listing’,Footnote 31 established pursuant to Security Council Resolution 1730 and managed by staff members of the UN Secretariat, it is not independent and does not provide an opportunity for a petitioner to be heard, and therefore does not contribute to meeting minimum standards of due process.
Some Member States believe that international sanctions are premised on political decisions and that the rule of law has no place. As between Member States, it may be so. But when international sanctions, which can be tantamount to an economic death sentence, directly affect the fundamental human rights of individuals, those listed individuals should at least be given the opportunity to be heard or to seek some remedy for any injustice or unfairness they suffer. It is important to remember that sanctions are preventive, not punitive.
Conclusion
In conclusion, if we look at the existing status of the international targeted sanctions regimes imposed by the Security Council, we find a situation where the spirit is willing to embrace the rule of law, but the flesh is weak. A 2004 report of the then Secretary-General underscores that
[p]eace and stability can only prevail if the population perceives that politically charged issues, such as ethnic discrimination, unequal distribution of wealth and social services, abuse of power, denial of the right to property or citizenship and territorial disputes between States, can be addressed in a legitimate and fair manner.Footnote 32
Thinking of the blatant lack of minimum standards of due process in existing international targeted sanctions (with the exception of the 1267 Sanctions regime), I hope that one day no judge in national or regional courts will be forced to repeat what Lord Hope said in HM Treasury v Mohammed Jabar Ahmed & Ors. He said:
Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.Footnote 33
As I have indicated above, the threat of terrorism confronts all nations, including ASEAN countries. But so, too, are the imperatives of the rule of law and due process, which are critical to these processes. I hope I have given a sense of why these issues are also relevant to ASEAN countries, given the number of individuals and entities from this region listed. To date, to my knowledge, none have sought delisting – perhaps due to a lack of awareness of the delisting procedures.
While the Ombudsperson procedure represents a significant development in terms of due process, the Office is just another piece of furniture in the room if listed individuals and entities are not aware that the mechanism exists and if it is not used by those entitled to use it. All regions, including Asia, need greater awareness of the sanctions mechanisms.
ASEAN countries and their legal fraternity should consider initiating programmes to raise awareness of international sanctions, including delisting mechanisms. I hope that Singapore, with its strong rule of law, can organise training for ASEAN countries on the implementation and shortcomings of international sanctions, including compliance with the rule of law. For example, the African Union (AU), in partnership with the Institute for Security Studies, organised a training on sanctions in Accra, Ghana, in September 2022 for experts from the Committee of Sanctions of the Peace and Security Council and selected units of the AU Commission's Political Affairs, Peace and Security Department. A similar training could be envisaged for ASEAN countries.
Finally, petitioners should ideally be represented by counsel when making delisting requests, which is in and of itself an aspect of due process. This is where the legal fraternity should play its role. I believe that lawyers in Singapore are more than capable of stepping up to this challenge, not for financial reward but to safeguard the fundamental human rights of those in need.
