Thomas Gehring & Thomas Dorfler. Global Governance. Volume 19, Issue 4, October-December 2013.
The UN security council delegates an increasing amount of decisionmaking competencies to specifically established sanctions committees. This is especially true for sanctions regimes targeting individuals and private entities. The delegation of specific functions to sanctions committees introduces a division of labor within the Security Council apparatus. While the Council defines the purpose and general direction of such regimes, sanctions committees decide on listing and delisting of targets that face travel bans and assets freezes and are subject to arms embargoes. Sanctioning individuals and private entities reflects the “smart sanctions” approach, which was developed after the devastating effect of the comprehensive sanctions against Iraq, Yugoslavia, and Haiti during the 1990s. Although smart sanctions against individuals and private entities are established as temporary arrangements, they require regular governance activities. While a number of sanctions regimes (e.g., those focusing on Somalia, Liberia, Iran, and international terrorism) include targeted sanctions, the al-Qaeda/Taliban (AQT) sanctions regime is of particular importance. It comprises the largest list: currently 226 individuals and 64 entities associated with al-Qaeda; it is also particularly well advanced procedurally and addresses a global threat to international peace and security.
In this article, we examine the emergent system of divided labor of the complex AQT sanctions regime and the consequences for its operation. The Security Council is generally considered as a forum for great-power politics. Previous research has paid little attention to the incentive structure of complex and functionally differentiated sanctions regimes on each level of the decision process, especially on the constraining role of decision criteria. As a result, the literature has treated the Council and its sanctions committees predominantly as a single comprehensive body. Few studies have addressed sanctions committees in general or provided case studies, whereas the discussion on the AQT regime has focused predominantly on the civil rights aspects of individual sanctions and the external pressure for adaptation.
Drawing on modern institutional theory, we consider the Security Council decisionmaking apparatus as a highly institutionalized polity that defines and shapes opportunities and constraints for actors’ activities. Institutional theory emphasizes that delegation of decisionmaking powers to an agent changes institutionalized opportunity structures and redefines decision situations. The delegation of such powers always creates the problem that the power-wielding agent might not act as expected by its principals. However, a differentiated governance structure might also create strong incentives for all actors involved to engage in rule-based, rather than power-based, decisionmaking. Indeed, a UN official attached to the Iraq Sanctions Committee summarized the promising influence of functional differentiation within Council decisionmaking:
If Council and subsidiary organ practice were more clearly distinguished from each other, the political discretion of the Council, with its often questionable sanctions decisions might appear more legitimate. Member states would have to accept politically driven sanctions decisions of the Council, but once those decisions were adopted, member states would have a more predictable system of norms and practices to fall back upon within the sanctions committees.
In the following section, we examine the political economy of the listing process. It demonstrates that the steady stream of listing and delisting requests produces a demand for rules, either because the consensus requirement would otherwise threaten to cause stalemates or because extreme laissez-faire would create severe legitimacy problems. Then we consider the distinct functions performed by the four bodies of the AQT sanctions regime; namely, the Security Council, the AQT Sanctions Committee, the Analytical Support and Sanctions Monitoring Team (ASSMT), and the Office of the Ombudsperson. We then explore the resulting incentive structure of the sanctions regime within three distinct stages. Stage one was characterized by the lack of internal accountability among the member states due to the almost complete absence of rule-based requirements for listings and allowed virtually unconstrained listing. At stage two, an increasingly dense set of substantive and procedural rules provided the foundations for an increasingly well-operating internal accountability system. At stage three, the Security Council complemented the governance system with the ombudsperson as an independent agent who acquired a quasi-judicial function within the sanctions regime.
We conclude that the current design of the AQT sanctions regime constitutes a surprisingly well-advanced model of how to commit even the most powerful political actors of the international system in their own long-term interest to rule-based governance, without depriving them of their power to make political decisions and to determine the direction of a sanctions regime.
The Political Economy of the Listing Process
If the Security Council assigns the power to adopt binding decisions to a sanctions committee, it creates a principal-agent constellation. Delegation of such powers is intended to relieve the Council from considering numerous decisions of limited scope. The transfer of authority promises to reduce the transaction costs of maintaining lists of sanctioned individuals and entities and to facilitate routine decisionmaking. In hardly any sanctions regime does the Council itself engage in amending the list of sanctioned individuals and entities, even though this obvious alternative approach would allow for trade-offs between the Council member states within larger packages of issues. Although a sanctions committee is expected to act as the Council and its members would have done in its place, delegation always creates the risk that an agent might deviate from these expectations (“agency slack”). To motivate the agents to follow the decision rationale of their principals as closely as possible, principals typically seek to make their agents accountable to themselves.
Although the Security Council and its committee are closely tied together, the delegation of decisionmaking competencies to the committee creates (like all delegation of decision power to an agent) a division of labor between the two bodies. While committee membership mirrors that of the Council, delegation always creates specific opportunity structures for all bodies involved. Unlike the Council, sanctions committees decide by consensus and thus provide nonpermanent members an opportunity to block a decision. Moreover, by concentrating on some aspect of the sanctions regime, state representatives within the committee will inevitably specialize on issues of relevance for this body while other issues tend to move out of the center of their attention. As a result, the decisionmaking rationale within the two bodies will differ, not because the committee diplomats gain autonomy from their superiors but because they operate within a distinct decision situation.
Decisionmakers in an empowered sanctions committee will face the typical patterns of committee governance if they have sufficient interest in the issues at stake. These patterns are well known from domestic political systems and from other international institutions. They will occur, if decisions are small and sufficiently well separated from each other so as to preclude their linkage within explicitly negotiated packages. The distributive effect of such decisions is usually asymmetrical and precludes a mutually beneficial bargaining outcome. Under these conditions, actors cannot pursue their case-specific interests without jeopardizing the entire cooperation project to the point that actors seeking to realize cooperation gains must compromise. A single listing decision will hardly ever be of equal advantage for all committee member states alike. Yet without consensus agreement on listing decisions, sanctions regimes based on individual sanctions lack effectiveness.
The patterns of committee governance create a demand for rules that guide committee decisionmaking. To avoid stalemate, decisionmakers need a focal point that indicates which situations to compromise on and which ones to urge for insistence on their preferences. This focal point of reference (not to be confused with the UN Secretariat’s Focal Point for De-listing) does not reflect the constellation of power and interests among the actors involved in the decision situation. Rather, it is taken from beyond the decision situation precisely because this situation does not offer an inherent solution for the pending decision problem. All relevant actors, especially those that would otherwise block the decision process, must accept a focal point. If substantive decision criteria exist, they are likely to provide such focal points. Any alternative option would presuppose that all fifteen member states accept sidestepping valid decision criteria. In the absence of such criteria, previously accepted solutions to similar decision problems provide a suitable candidate for a mutually acceptable focal point. Repeatedly accepted focal points are likely to create an increasingly well-established practice and, eventually, normative expectations shared by decisionmakers. Hence, the patterns of committee governance can be expected to create a system of internal accountability of the committee members to each other that drives decisionmakers toward rule-based decisionmaking.
By contrast, should committee members seek to sidestep the problems of committee governance through accepting decision proposals across the board, they will immediately create severe legitimacy problems. In fact, the Security Council itself is an agent of the state community; its fifteen members are empowered to adopt decisions that are legally binding on all UN member states. The effectiveness of sanctions depends immediately on their sincere implementation by the member states, and the power to reject or delay implementation establishes a sort of diffuse market-like external accountability mechanism. Since implementing member states are largely precluded from exploring the soundness of committee decisions in detail, if only because procedures are confidential, legitimacy will largely depend on the trust of member states in the decisionmaking process. Such trust is fostered by a sound organization of the decision process that promises predictable decisions. The absence of serious internal accountability will almost certainly undermine member states’ trust in sound procedures because the lack of internal accountability would allow Council members to (ab)use their power and to pursue their parochial interests. Consequently, Council members interested in the effectiveness of the sanctions regime gain an interest in constraining their leeway for arbitrary decisionmaking through rules.
The division of labor will also affect the patterns of decisionmaking within the Security Council if its members seek to constrain all too autonomous committee activities through a well-specified mandate, and through substantive as well as procedural prescriptions. By delegating case-specific decisions to the committee, the Council limits its own activities to elaborating general rules that are applicable to an unknown number of cases. This situation forces Council members to develop median preferences that are consistent across cases so that case-specific opportunistic behavior is rendered virtually impossible. If Council members decide on general criteria before becoming aware of their future case-specific preferences, they might even partially operate under a Rawlsian “veil of ignorance.” This situation would urge even powerful rational utility maximizers to struggle for criteria that promise to produce acceptable decisions irrespective of their (yet unknown) case-specific preferences. Hence, the separate elaboration of decision criteria is likely to introduce consistency and possibly even reasoning into the decision process. The constraining effect will only be undermined if states have uniform preferences across cases that allow for bargaining over different sets of preferred rules.
The emergence of a set of valid decision criteria submits the members of a sanctions committee to some form of “institutional bargaining.” Decision criteria limit the number of available options and constrain the leeway for pursuing parochial interests through power-based bargaining. Decision-makers gain an interest in pursuing their preferences according to these rules if they are effectively committed to them.
Division of Labor Within the Al-Qaeda/Taliban Sanctions Regime
The organizational structure of the AQT sanctions regime is considerably differentiated. It comprises four bodies; namely, the Security Council, the AQT Sanctions Committee, the Office of the Ombudsperson, and the ASSMT. Each of these bodies fulfills distinct functions within the governance system. The sanctions regime was established in 1999 to curb the increasing threat posed by international terrorism that manifested in several major attacks, such as the embassy bombings of Darussalam and Nairobi, while the Taliban provided a safe haven for terrorists. Sanctions targeting individuals and entities started on the Taliban’s failure to extradite Osama bin Laden. The sanctions regime was strengthened after attacks on the USS Cole in Aden in 2000, on the New York World Trade Center as well as the Pentagon on September 11, 2001, and has from then on been continuously elaborated on.
The Security Council as the hierarchically superior body of the governance system defines the scope, mandate, and structure of the sanctions regime under Chapter VII of the UN Charter and provides the framework for the operation of all other bodies. In the absence of specific provisions in the Charter, it enjoys a considerable amount of discretion in the design of its sanctions regimes. It has the power to create subsidiary bodies and to delegate functions to them whenever it considers this step appropriate. The Council takes its overall guidance functions seriously and directs the activities of the AQT Sanctions Committee mainly through resolutions. Over time, it has adopted an increasingly dense set of procedural and substantive provisions that govern the listing process. While the Council retains the formal right to decide on listing proposals that cannot be resolved by the committee, Council activities are in fact constrained to elaborating rules that are applied to an unknown number of future listing decisions. Hence, Council negotiations almost inevitably adopt a broader perspective and decisions may be linked to other components of the complex sanctions regime while committee negotiations are conducted in the increasingly narrowly defined framework of Council guidance.
The AQT Sanctions Committee engages in rule-making alongside the Security Council. It constitutes the main subsidiary body set up by the Council to implement the AQT sanctions regime. The committee is usually served by junior diplomats except for the chair, which is entrusted to the head of a country’s mission. As a regulator, it relieves the Council of the necessity to provide all too detailed rules to ensure a proper listing process without undermining the latter’s oversight function. Like all sanctions committees, the AQT Sanctions Committee adopts its own rules of procedure that specify and elaborate the more general directives provided by the Security Council and provide committee members with an opportunity to overcome obstacles to case-specific decisionmaking through selective self-regulation. The Council has repeatedly requested the committee to adopt and review its “Guidelines of the Committee for the Conduct of Its Work.” These calls reflect the perception of member states that the two bodies constitute, despite identical membership, distinct subsystems of the sanctions regime. Such orders separate the overall decision to regulate a given issue from the subsequent elaboration of detailed provisions. While they might seem to transfer most of the political tension inherent in creating such guidelines to the committee, they remove the option of nonregulation. The presence of two regulators creates redundancy within the governance system that offers opportunities for forum shopping. If one body is blocked due to the specific opportunity structure prevailing, a matter can be referred, implicitly or explicitly, to the other body. In the absence of the committee as a regulator, regulatory density of the listing process would most probably be significantly lower, with the consequence of more far-reaching discretion of committee decisionmakers.
The AQT Sanctions Committee mainly decides about the listing and delisting of individuals and entities on which sanctions are imposed. It may also grant humanitarian exemptions to an assets freeze for basic expenses such as foodstuffs or medical treatment as well as exemptions to a travel ban for certain purposes. The Security Council has fully delegated these case-specific decisions to the committee. While technically any unresolved matter within the committee may be referred to the Council, all member states have strong incentives to keep matters within the committee. The nonpermanent member states enjoy a stronger position in the committee than in the Council. The great powers, although having a stronger position in the Council, risk exposing their motivations and politicizing an issue of limited scope. Although Council decisions are mainly prepared in closed-door meetings, items on the agenda as well as decisions and decision proposals of the Council are far more transparent than those of the committee and subject to enhanced public scrutiny. Within the AQT sanctions regime, this auxiliary procedure has never been employed and it is rarely used in other targeted sanctions regimes.
The Office of the Ombudsperson, created in 2009, supplements the governance system with a remarkably strong review mechanism (see the discussion of the third stage of development, below). The ombudsperson is appointed by the Secretary-General. As an independent and impartial entity, the ombudsperson is entitled to review petitions of listed individuals and entities and to recommend decisions.
With the ASSMT, the sanctions regime includes a reflexive component. The ASSMT operates as an advisory body under the direction of the AQT Sanctions Committee and reflects a standing practice of the Security Council. It is composed of eight experts and mandated with overseeing the implementation of sanctions, making recommendations for the improvement of the sanctions regime as well as assisting the committee in listing, delisting, and updating the consolidated list. The ASS MT forces Council member states to reflect on the appropriateness of their decisions and pushes the sanctions regime continuously toward reinforcing the internal regulation of committee activities. Hence, the governance system comprises a body that offers an external view on the intergovernmental governance activities.
Development of the Governance and Accountability System
Far from being designed coherently from the beginning, functional differentiation of the decisionmaking machinery evolved gradually through numerous amendments and modifications in response to emergent problems related to decisionmaking within the regime and to its acceptance by UN member states. We can roughly identify three, admittedly considerably overlapping, stages of development, which provide distinct opportunity structures for decisionmaking.
First Stage: Absence of Decision Criteria and Lack of Internal Accountability Leads to Virtually Unconstrained Listing
The original AQT sanctions regime demonstrates that an insufficiently developed accountability system causes governance problems. Prior to 2005, member states collectively enjoyed, despite some initial regulation, largely unconstrained discretion when deciding about listing proposals. Moreover, the AQT Sanctions Committee was not compelled to provide reasons for its listing decisions. This allowed for an enormous increase in listing figures after the September 11 attacks. While the consolidated list comprised only 7 listings in 2000, by 2003 397 individuals and entities had been added.
Listing decisions occurred in the absence of reliable decision criteria. Security Council resolutions provided only crude decision criteria and left much room for interpretation. The AQT Sanctions Committee did not even have its own guidelines until November 2002, almost three years after the creation of the sanctions regime. Resolution 1267 (1999) merely envisaged freezing financial assets “owned or controlled directly or indirectly by the Taliban.” In 2001 and 2002, eligibility for listing was repeatedly redefined and eventually extended to “Usama bin Laden, members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them.” Yet many aspects remained unclear, including a reliable interpretation of what “associated with” might imply. Moreover, the system generally lacked specific information requirements on the merits of a proposed listing.
The absence of reliable decision criteria undermined internal accountability because it precluded AQT Sanctions Committee members from rejecting a listing proposal for reasons of noneligibility. The lack of reliable standards for distinguishing acceptable from nonacceptable proposals produced far-reaching discretion for the committee and rendered every single listing decision a political issue though the stakes involved in most of these decisions were negligible for most committee member states. Under these circumstances, the costs of raising doubts about the appropriateness of a listing proposal tended to outweigh its benefits. In fact, committee members appeared to be highly reluctant in rejecting listings at this stage and accepted listing proposals in the absence of evidence to the contrary even if proponents did not reveal their classified information on designations. This behavior reflects the general attitude of refraining from obstructing the decision process in order to avoid undermining the effectiveness of the sanctions regime as a whole.
The specific organization of the listing process further undermined internal accountability and partially reversed the burden of proof. The consensus requirement put additional pressure on objecting states to provide reasons. Under this procedure, an affirmative vote does not require any action whereas an objection has to be voiced. Routinization reinforced this effect. Decisions were, and still are, generally taken by a written (no-objection) procedure. Accordingly, the chairperson circulates the proposed decision and requests AQT Sanctions Committee members to indicate their objection within originally two, but currently ten, working days or to ask for more time (to place a hold). If no committee member objected, the decision was adopted. Only on the request of a committee member was the designation put on the agenda of the committee for further consideration. In practice, there was no deliberation about individual cases at committee meetings. This procedure promised to reduce the transaction costs of routine decisionmaking. However, in the absence of reliable decision criteria, it broadened the leeway for discretion because it relieved the proponent of a listing from providing reliable justification for the proposed measure while possible opponents were compelled to provide reasons for their rejection unless they were prepared to open a political issue.
The absence of a reliable accountability mechanism caused functional problems for the governance system. First, the absence of clear rules undermined the effectiveness of the sanctions regime. The ASSMT recognized that clearer decision criteria “would provide States with a better understanding of when to propose names for listing, thereby encouraging new listings. It would also provide persons and groups with notice of the conduct that might result in their listing.” Moreover, the poor quality of information about listed individuals and entities undermined implementation. UN member states and their financial institutions could not clearly identify and freeze targeted funds. Border protection officials could not implement the travel ban due to imprecise identification information. The ASSMT and a preceding expert group continuously highlighted the issue of listings that lack sufficient identifying information.
Second, the sanctions regime lacked legitimacy among an increasing number of UN member states. A large number of UN member states expressed concerns about proposing new names to the consolidated list in the absence of legal safeguards and transparency regarding the listing and delisting procedures. This reflected an increasing reluctance to implement assets freezes and travel bans of listed individuals and entities, and threatened to undermine the preparedness to implement UN sanctions in general. Of particular importance was the complete absence of a procedure for review and delisting of individuals and entities. Sweden launched a diplomatic campaign to remove three Swedish citizens and two entities residing in Sweden from the consolidated list. At the request of listed individuals, courts began to scrutinize enforcement of individual sanctions in major Western countries. In the famous Yassin Abdullah Kadi decision, the European Court of Justice decided that the listing of one targeted individual of Saudi nationality violated European law and was not to be implemented by member states of the European Union. A Canadian federal court ruled that the listing and resulting travel ban violated fundamental rights of Canadian citizen Abousfian Abdelrazik. And a Belgian court established that the Belgian government, as the designating state, was obliged to initiate delisting of two listed individuals (Nabil Sayadi and Patricia Vinck) because they had not been found guilty of any criminal activity. While decisions occurred several years later, they emphasized that unregulated listing procedures with extensive discretion for decisionmakers undermine the acceptance, and sincere implementation, of sanctions.
In its first stage, the sanctions regime suffered from an extensively wide discretion of AQT Sanctions Committee members on listing decisions and an inactive accountability mechanism. As a consequence, both the effectiveness and the legitimacy of the sanctions regime suffered.
Second Stage: Emergence of Rule-based Internal Accountability
The second stage demonstrates that international governance will be facilitated if a sufficiently dense set of substantive and procedural rules provides a reliable foundation for the distinction between collectively acceptable and nonacceptable decisions and constrains the discretion of the AQT Sanctions Committee. In this stage, beginning with Resolution 1617 (2005) and roughly extending to 2009, the Security Council gradually recognized the regulatory deficits of the sanctions regime and specified the committee mandate as well as the listing procedure. It also called on the committee to elaborate its own guidelines and repeatedly requested that the committee revise these guidelines, not least to “ensure that fair and clear procedures exist for placing individuals and entities on the consolidated list and for removing them as well as for granting humanitarian exemptions.” The increasingly precise regulation of the listing process is reflected in the length of Committee Guidelines, which grew from originally five pages in 2002 to twenty-four pages in 2012.
The rule set spelled out more clearly the eligibility criteria for listing. The Security Council specified the unclear notion of “associated with” al-Qaeda and the Taliban in Resolution 1390 (2002). According to Resolution 1617 (2005), those eligible for listing are individuals or entities “participating in the financing, planning, facilitating, preparing, or perpetrating of acts …; supplying, selling or transferring arms … to; recruiting for; … otherwise supporting acts or activities of Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof.” These criteria serve as a point of reference for AQT Sanctions Committee members. They are reflected in the fact sheets that designating states have to use to propose new names.
Information requirements have also been increasingly tightened. Designating states are requested to provide a detailed statement of case, using a standard form for listing, and to include as much relevant information as possible on the proposed listing. They should provide identifiable designations, detailed reasons for listing, and information on how the proposed individual is associated with other individuals or entities on the consolidated list. The ASSMT noted that the refinement of these criteria has significantly increased the information provided by member states to support their listing requests. The Fourth Report 2006 of the ASSMT stated: “In the Team’s view, a successful listing is most often linked to a complete and thorough account of the basis for listing, including the nature of the subject’s association with Al-Qaida or the Taliban. The Team believes that successful listings generally are factual, avoid unsupported allegations or broad assumptions and reference supporting evidence or documentation to the greatest extent possible.” Moreover, the Security Council introduced cover sheets that standardize the information provided for new listings at the suggestion of the ASSMT, noting that many UN member states are unsure about how to propose names to the AQT Sanctions Committee.
Likewise, a delisting procedure was introduced and gradually refined. The original delisting procedure introduced by the AQT Sanctions Committee Guidelines of November 2002 was highly restrictive and entirely intergovernmental. Delisting could be triggered only by the state of nationality or residence. Listed individuals or entities were called to petition one of these governments, which should contact the designating state to hold consultations on the delisting request. After such consultations, the petitioned state, possibly in cooperation with the designating state, could submit a delisting request to the committee, which had to decide by consensus. This procedure was introduced to allow processing Swedish claims to delist several of its nationals and residents. However, it was highly restrictive because a quite limited number of states constituted gatekeepers that could not be circumvented. Rejection by a petitioned state to support a delisting request, for whatever reasons, would amount to a denial of access to the review process for listed individuals and entities. Since unsuccessful complaints are not registered, it is unknown how many individuals and entities have sought eligible governments to initiate delisting. The ASSMT has continuously argued for more due process and emphasized that this is also in the long-term interest of the committee and its member states: “The establishment of this process would cost the Committee nothing. In the end, no de-listings will occur without the consent of all 15 Committee members. Therefore, the Committee would be able to ensure that parties linked to Al-Qaida and the Taliban are not removed from the List without sufficient evidence; … and States could propose names for listing with the assurance that, if circumstances change. a robust de-listing system is available.”
The increasingly dense set of substantive and procedural rules has activated the internal accountability mechanism of the AQT Sanctions Committee and the related patterns of committee governance. First, the gradual emergence of substantive decision criteria and information requirements raised the hurdles for successful listings. Designating states had to provide detailed reasons for new designations and to clearly establish a link between the designated individual or entity with al-Qaeda, bin Laden, or the Taliban. Committee members were enabled to appraise proposals. As expected, the committee adhered to existing rules, in particular the agreed on “associated with” standards of Resolution 1617 (2005). Committee members actually rejected listings that fell short of this evidentiary standard. Conversely, the rejection of a proposed and well-documented decision required substantiation through appropriate information. Hence, the introduction of documented and criteria-based information on listing proposals appears to have actually disciplined committee members. Today, the remaining issue is not an overly broad discretion or the collective will to ignore existing rules but that, in some cases, states still hesitate to share confidential information with other committee members.
Second, reinforced internal accountability has produced the problems of committee governance as evidenced by the abuse of holds during the first comprehensive review of all listings and its restriction through rules. Within the no-objection procedure. AQT Sanctions Committee members use the instrument of holds if they require time to collect additional information or to consult with their own governments or other committee members. By Resolution 1822 (2008), the Security Council requested the committee to undertake a comprehensive review of all names on the list “in order to ensure that the consolidated list is as updated and accurate as possible and to confirm that listing remains appropriate.” Accordingly, the committee had to review all 482 entries on the list separately. During this activity, the number of holds increased steadily, not the least by permanent members and designating states desiring to avoid delistings in the absence of reliable information. In December 2009, thirty-one decisions had been put on hold, thus indicating the inability of the committee to reach a mutually acceptable decision. In response, the committee limited the duration of holds. Henceforth, a pending issue was automatically approved after six months unless a committee member objected to the decision or the committee decided by consensus to extend the hold for an additional three months. After this time, the matter was approved unless a committee member objected. Earlier, the committee had already agreed that holds placed by outgoing Council members ceased to have effect after the end of their Council membership, but might be taken over by incoming Council members. These rules restricted the behavioral options of committee members. They ensured that pending issues were finally resolved by positive or negative decisions and resulted in a significantly reduced amount of pending issues.
Third, the number of delisting decisions adopted by consensus of AQT Sanctions Committee members indicates the significance of, and the adherence of committee members to, the established rules. Until 2008, thirty-eight entries had been removed from the consolidated list. Under the comprehensive review, the committee delisted another forty-five entries (thirty-three individuals and twelve entities): by 2010, another sixty-three cases were pending. Separate from the comprehensive review, the committee removed eleven more entries.
In the second stage, an increasingly dense set of substantive and procedural rules enabled AQT Sanctions Committee members to reject decisions with reference to valid decision criteria or lack of evidence. However, internal accountability continued to rest on the committee members’ preparedness to block unjustified decisions.
Third Stage: Tightening Oversight and Reversing the Burden of Proof
In the third stage, beginning with Resolution 1904 (2009), the governance system was gradually complemented by a comparatively independent review mechanism that integrated two sorts of new actors into the governance system (i.e., listed individuals and entities as private complainants, on the one hand, and the ombudsperson as an institutionalized agent associated with the UN Secretariat, on the other). Together, these actors changed the existing incentive structure considerably. The review mechanism was introduced as part of the original purely intergovernmental delisting procedure, and it emerged gradually.
Already in 2006, the Security Council had created the Focal Point for De-listing located within the UN Secretariat and, for the first time, assigned a formal role to nonstate actors. The independent decisionmaking capacity of the Focal Point was strictly limited. Besides its function as a registrar of pending petitions, it informed AQT Sanctions Committee members about incoming petitions, forwarded them to relevant states, and transmitted information to petitioners. The innovation was that it provided listed individuals and entities with direct access to the committee, thus opening the opportunity to sidestep their possibly reluctant or inactive states of nationality or residency. Henceforth, private actors could trigger the delisting process and force the committee to consider their case. However, to result in delisting, a petition still required a formal delisting request from the designating state(s), the state of citizenship or residence, or any committee member. This procedure sparked disappointment, especially among the like-minded states that had favored a stronger review mechanism. Ultimately, the decision on a delisting request had to be made by a consensus decision of the committee members. Between 2007 and 2009, the Focal Point processed twelve requests, which led to a removal of three individuals and twelve entities while six individuals were denied a delisting.
The creation of the Office of the Ombudsperson considerably strengthened the review mechanism. By Resolution 1904 (2009), the Security Council replaced the Focal Point for De-listing with the Office of the Ombudsperson, which was mandated with reviewing delisting petitions of individuals and entities. The Secretary-General appointed Kimberly Prost, former judge to the International Criminal Tribunal for the Former Yugoslavia, as the ombudsperson. For the first time, the sanctions regime comprised an independent and impartial actor to process complaints filed by listed individuals or entities. The office is entitled to interact with the petitioner and to collect information from relevant actors involved. Since the AQT Sanctions Committee is required to consider a case upon the ombudsperson’s action, the procedure relieves the petitioner from having to mobilize support by any particular state and changes the decision situation within the committee. A privately submitted complaint automatically triggers an impartial investigation process. After a preliminary assessment, the ombudsperson circulates the request to the committee, to designating states, to states of residence or nationality, and to the ASSMT to collect all relevant information. Subsequently, the ombudsperson consults with the petitioner and submits a comprehensive report to the committee. Finally, the committee makes its decision in light of this report. However, at this time, the ombudsperson did not yet have the formal right to make substantive recommendations on the case. Moreover, the mandate had to be renewed every eighteen months.
Resolution 1989 (2011) once again considerably enhanced the importance of the review mechanism. It assigned formal agenda-setting powers to the ombudsperson and introduced a reversed veto that renders objection against his or her recommendations difficult. A delisting proposal recommended by the ombudsperson is now automatically adopted after sixty days unless the AQT Sanctions Committee decides by consensus to uphold the listing or unless a member state takes the matter to the Security Council. Hence, a formal recommendation of the ombudsperson to delist an individual or entity is difficult to overrule because an interested state would have to convince all other committee members of the inappropriateness of the ombudsperson’s position. The reversed veto procedure implicitly shifts the burden of proof to the designating states. Moreover, a negative committee decision communicated to the petitioner via the Office of the Ombudsperson includes the reasons for denial. Although this statement is not officially released, the petitioner might publicize it, thus further increasing the hurdles of retaining listings that are difficult to justify in light of the existing criteria.
These procedural changes have had significant effects on the operation of the AQT Sanctions Committee. As of January 2013, the Office of the Ombudsperson had received thirty-six delisting requests, of which eighteen cases, covering twenty individuals and twenty-four entities, have resulted in delisting. Only two requests were rejected by the committee, including one rejected through the weaker procedure of Resolution 1904 (2009), while one petition was withdrawn and one entry amended. Remaining cases are pending. The ombudsperson expects an average of five new cases for a reporting period of six months. The high number of cases leading to delisting suggests that both the procedure and ombudsperson’s recommendations are respected by committee members, and that the consolidated list still includes doubtful listings. In some cases, delisting occurred despite diverging views of committee members on the request. In 2012 an individual, the Saudi dissident Saad Al-Faqih, was delisted on recommendation by the ombudsperson. Even though the majority of the committee preferred a continued listing, four states declined to overrule the ombudsperson’s recommendation. So far, not a single disputed case has been referred to the Security Council. although this option is explicitly provided by relevant resolutions and Committee Guidelines. This option is not attractive because it would politicize the issue and might disclose information about the behavior of individual committee members or confidential information about the proposed decision.
The review mechanism considerably changes the incentive structure for all actors. It provides an incentive for designating states to provide as much information as possible on the justification of a listing proposal in a timely manner, although access to confidential information remains a difficult issue. It also creates a strong incentive for the AQT Sanctions Committee to decide cases according to valid decision criteria and on the basis of submitted evidence, instead of political considerations. It might even induce the Security Council and the committee as rule setters to design as carefully as possible substantive listing criteria and procedures that are binding on all actors involved and provide the foundation for decisionmaking and review. Finally, the procedure creates strong incentives for the ombudsperson not to abuse his or her extensive powers. The option to refer a matter to the Council constitutes a permanent threat to sidestep the agenda-setting power of the ombudsperson and constrains his or her ability to get by with loosely reasoned proposals. Although the ombudsperson procedure is now mandated for thirty months, the mandate has to be extended from time to time, and the ombudsperson is well advised not to undermine the prospects for its renewal.
Conclusion
The current design of the AQT sanctions regime constitutes a surprisingly well-advanced model of how to commit even the most powerful political actors of the international system in their own long-term interest to rule-based governance without depriving them of their decisionmaking power. This effect was probably not entirely intended. It may be attributed to two interrelated characteristics of this type of sanctions regime. The Security Council delegates the power to make case-specific decisions to the AQT Sanctions Committee, primarily in order to avoid being overburdened. Thereby, it establishes a complex governance system that introduces a functional division of labor among specialized bodies. Since the committee has to deal with a stream of decisions of limited scope, it is faced with a specific opportunity structure. This opportunity structure is likely to lead to either a stalemate or a legitimacy deficit if meaningful decision criteria are absent, which will result in undermining effective internal accountability. Hence, the delegation of decisionmaking powers within the sanctions regime produces a strong demand for mutually accepted rules and creates incentives for consistent and rule-based decisions.
The AQT sanctions regime has remarkably developed from a largely unconstrained mechanism of collective political choice into a complex governance system that promises to replace power-based with rule-based decisionmaking. In the first stage, the sanctions regime largely lacked standardized procedures for its operation and the member states collectively enjoyed a high degree of discretion. As a result, the sanctions regime encountered problems of legitimacy and effectiveness. In the second stage, decisionmaking became subject to an increasingly dense set of substantive and procedural rules. Enforcement of rule-based decisionmaking continued to rest on the AQT Sanctions Committee members’ preparedness to block decisions, but opponents could now reject a decision with reference to valid decision criteria or lack of evidence. In a third stage, the governance system was complemented by a standing for private complainants and the ombudsperson as an independent agent that acquired a strong formal agenda-setting power on delisting issues. This procedural innovation introduced an additional incentive to adopt listing decisions based on criteria and related evidence, as delisting would rapidly ensue otherwise.
Our analysis shows that institutional theory offers a powerful analytical perspective on Security Council activities because it draws attention to the impact of the Council’s specific institutional arrangement on decisions produced within this framework. Looking beyond the particularities of the complex structure of the AQT sanctions regime, it demonstrates that institutional constraints play an important role in explaining outcomes of the Security Council, despite the fact that this institution constitutes a highly political body and operates within the area of high politics.