Targeted Sanctions and Due Process - United Nations Treaty ...

B. Fassbender, Targeted Sanctions and Due Process
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a State, i.e. the purpose of influencing the person’s attitude and conduct to the effect that
international peace and security are maintained or restored. The Security Council was not
intended to be a criminal court. As a political organ, it lacks all the necessary qualifications
for a proper conduct of criminal proceedings. This was recognized by the Council itself
when it established the Yugoslavia and Rwanda Tribunals. In other words, sanctions
are not meant to penalize a person but to make him or her change his or her attitude and
conduct. Accordingly, a person must be offered an opportunity of demonstrating to the
Council such a change of attitude and conduct.
12.7 A contrary understanding of sanctions imposed by the Council on individuals, i.e.
an understanding of sanctions as penalties, would have significant consequences for the
standard of “fair and clear procedures” to be guaranteed by the Council under international
law. For in that case the comparatively high standards relating to criminal offences and
penalties would have to be applied. 91 In particular, an individual targeted with sanctions
would be entitled to a fair and public hearing by an independent and impartial court or tribunal
previously established by law. Further, the right not to be tried or punished twice for
the same criminal offence would have to be respected.
12.8 Under the different sanctions regimes presently being in force, different categories
of individuals are targeted with sanctions. As set out above (see supra, part B), under
Resolution 1267 individuals and entities are made the object of sanctions because of their
being a member of, or associated with, Al-Qaida and/or the Taliban. In contrast, other
sanctions regimes target individuals in their official capacity, in particular as political and
military leaders of a state or members of a government. In the latter case (of “political”
sanctions), the true addressee of the measures is the state in question, and the listed individuals
are held responsible as agents of the state or government. In spite of this difference,
the due process rights listed under (a) to (d) above should also be made available to
these individuals. If the Security Council chooses to place sanctions not on a state as such,
but on individually named persons, these individuals must be given an opportunity to demonstrate
that the conditions determined in the relevant resolution are not, or no longer, met
in the individual case, for instance because the respective person is no longer in office and
therefore not capable of taking part in the decision-making of the government in question
which the Council seeks to influence.
12.9 As regards the form and modalities of an effective remedy, the Security Council
enjoys a considerable measure of discretion. Among the options available to the Council
are the establishment of
– an independent international court or tribunal;
– an ombudsman office, as it exists in a number of States and in the European Union as an
alternative remedial mechanism; 92
– an inspection panel following the model of the World Bank Inspection Panel; 93
– a commission of inquiry; 94 or
91 For a detailed examination of fair trial guarantees in criminal proceedings, see Trechsel, supra
note 18, parts 2 (p. 45 et seq.) and 3 (p. 153 et seq.). For an analysis of the extension of the notion
of fair trial to international criminal proceedings, and of the ensuing rights of persons during investigations
and in trial proceedings, see Salvatore Zappalà, Human Rights in International Criminal
Proceedings, Oxford: Oxford University Press, 2003, pp. 3 et seq., 29 et seq., and 83 et seq.
92 For details, see Wellens, supra note 8, at pp. 178-181.
93 For details, see Wellens, supra note 8, at pp. 181-190.
94 For details, see Wellens, supra note 8, at pp. 190-197.