A/67/396
recommendations. Ms. Prost nonetheless took the view that her comprehensive
reports should address, to the defined standard, the question whether the continued
listing was justified. Resolution 1989 (2011) recognizes and now endorses this
practice and gives the Ombudsperson a mandate to make consequential
recommendations regarding processed delisting requests. 49
29. The second shortcoming was that a consensus of the Committee was required
for delisting. The most far-reaching change introduced by resolution 1989 (2011)
was to reverse this consensus presumption. A delisting recommendation by the
Ombudsperson now takes effect automatically 60 days after the Committee
completes its consideration of the comprehensive report, unless the Committee
decides otherwise by consensus. If there is no consensus, any member of the
Committee may refer the delisting request to the Security Council (the “trigger
mechanism” procedure). 50
30. According to the latest available figures, there are currently 238 individuals
and 68 entities on the Consolidated List. The Ombudsperson has received 30
delisting petitions, of which 19 cases have completed the delisting process, resulting
in the delisting of 16 individuals and 24 entities (one petition concerned 1 individual
and 23 related entities). Without seeing the underlying information, it is difficult for
the Special Rapporteur to draw firm conclusions from the raw data. All that can be
said with confidence is that the high proportion of petitions that have resulted in
delisting tends to suggest that the Ombudsperson process has been effective in those
cases that have so far been processed. At the same time, it underlines in stark terms
the fallibility potential of the entries on the Consolidated List, thereby reinforcing
the imperative need for fair and clear listing and delisting procedures that meet
international minimum standards.
31. Prior to the amendments made by resolution 1989 (2011), the mandate of the
Ombudsperson had been assessed for compatibility with minimum standards of due
process by the United Nations High Commissioner for Human Rights, 51 the former
Special Rapporteur, 52 the General Court of the European Union, 53 and the Supreme
Court of the United Kingdom. 54 While welcoming the introduction of an
independent element to the procedure, they each concluded that the mandate of the
Ombudsperson under resolution 1904 (2009) failed adequately to address the due
process-related concerns previously expressed about the regime, identifying 10 key
objections: (i) the mandate of the Ombudsperson did not confer a power to overturn
decisions of the Committee; (ii) the Committee therefore continued to act as judge
in its own cause; (iii) delisting required a consensus within the Committee; (iv) the
Ombudsperson lacked a power of recommendation; (v) disclosure of information to
the Ombudsperson or the Committee was subject to the unfettered discretion of
__________________
49
50
51
52
53
54
12-52254
See Security Council resolution 1989 (2011), para. 21.
See Security Council resolution 1989 (2011), para. 23. The same procedure is now to be
followed where the designating State submits a delisting request; ibid., para. 27.
See A/HRC/16/50, paras. 17-22 and 44.
See A/65/258, paras. 55-56; see also Martin Scheinin, “Is the ECJ Ruling in Kadi Incompatible
with International Law?”, in Yearbook of European Law, vol. 28 (Oxford University Press,
2010).
See Case T-85/09, Yassin Abdullah Kadi v. European Commission, General Court (Seventh
Chamber), 30 September 2010 [2011] CMLR 24, para. 128.
See Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC)
(Appellants) [2010] UKSC 2, [2010] 2 AC 534, paras. 78, 80-81 and 239.
13
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