On paper, it sounded like a jurist’s dream job.
In mid-2018, Daniel Kipfer Fasciati, a Swiss federal criminal judge, was appointed after a yearlong search as the United Nations’ chief advocate for alleged terrorists seeking relief from a U.N. travel ban and asset freeze.
For Fasciati, who had spent his career presiding over white-collar crime, corruption, and terrorism cases in the Swiss city of Bellinzona, the new job offered the opportunity to test his legal mettle on a bigger stage, while carrying out a vital mission for the U.N. and ensuring the pursuit of terrorists is carried out under the rule of law.
But the Swiss lawyer tendered his resignation last month in frustration, citing what he came to see as the lack of institutional independence of the U.N. office responsible for guaranteeing due process protections for individuals netted in the international fight against terrorism. He will continue to work through the middle of December.
He has also expressed concerns internally about persistent obstacles to fairness in the process, including extensive reliance on confidential evidence of wrongdoing and a refusal to allow sanctioned petitioners to review the reasons they were placed on the U.N. sanctions list in the first place, according to diplomatic sources familiar with the matter.
The case is one more example of the U.N. Security Council creating new posts and mandates to address a range of critical international challenges, then failing to provide the necessary political and institutional support to help them succeed. In recent decades, the council has established multiple expert panels to monitor the enforcement of U.N. sanctions, only to ignore their recommendations on how to make them work better.
For Fasciati, the U.N. ombudsperson for a U.N. Security Council committee monitoring sanctions against al Qaeda and the Islamic State, and his predecessors, the constraints on independence were largely bureaucratic. They contributed to an often Kafkaesque sanctions system that has long relied on secret accusations of wrongdoing by powerful countries, while running roughshod over the most basic rights of due process.
Fasciati served under a series of short-term consultancy contracts that made him beholden to U.N. Secretariat officials to guarantee his employment but denied him the security, pension, protections, and perks, including health insurance, enjoyed by U.N. staff members and many other senior U.N. appointees. In the world of international diplomacy, where protocol and rank bear heavily on power and influence, the tenuous job status proved detrimental to the office, according to Fasciati, who described the arrangements in an interview with Foreign Policy at U.N. headquarters.
At first, the implications of the arrangement were mostly trivial. Fasciati was initially denied access to the U.N. headquarters gymnasium, which was reserved for U.N. staff. (He was eventually allowed to use the facility.) He was prohibited from personally escorting guests from outside the U.N. headquarters into his office for official business. “I am not entitled to bring visitors into my office, so I have to ask my assistant, who is a U.N. official, to bring them in,” Fasciati said. “It’s crazy.”
But his outsider status would soon impose a series of bureaucratic impediments to his work.
As a consultant, Fasciati was not eligible to obtain a diplomatic passport, or laissez-passer, for business travel on behalf of the U.N., a distinction that diminished his diplomatic standing when he visited foreign countries.
Prior to the COVID-19 pandemic, he was required to obtain approval from the U.N. Secretariat before he could travel abroad to interview sanctioned petitioners, lawyers, or witnesses, and he had to justify his expenditures after he concluded his travels. And while the U.N. chief had appointed Fasciati to a three-and-a-half-year term, he was in fact required to routinely obtain short-term contract extensions—which ranged from one to 12 months—to keep his job. The arrangement helped foster the impression that he was beholden to the U.N. Secretariat for his livelihood.
“The Ombudsperson and his predecessors have all raised concerns with respect to the lack of institutional independence,” Fasciati wrote in a final July 23 report to the council’s sanctions committee. “While the Secretariat has addressed a few of the concerns informally on a case-by-case basis over the years … the resultant working conditions are simply not appropriate for the function of the Ombudsperson as an independent reviewer.”
The constraints aside, the ombudsperson’s office made some significant strides, according to Fasciati, building a system for hearing and reviewing challenges to the listing program, and placing greater pressure on member states to make a more rigorous case for sanctioning suspected terrorists.
Since its establishment in 2010, the office has reviewed and concluded 92 cases, recommending the delisting of some 59 people and 28 entities. The office rejected 23 petitions for delisting. Since his arrival, Fasciati has concluded 15 cases, delisted nine petitioners, and rejected appeals for delisting by six, he said. The council’s sanctions committee has never blocked a recommendation for delisting, which requires a unanimous decision by the council to reverse.
“It has been a great honor to serve in this important function these last three years and to make a humble contribution to the fairness, due process and transparency of the United Nations Security Council sanctions system,” Fasciati wrote in a June 3 letter of resignation to U.N. Secretary-General António Guterres.
“However, like each of my predecessors, I regret that it has not proven possible to create an institutionally independent Office and to grant the Ombudsperson the contractual arrangements appropriate for the function, its status and its independence,” he added.
Internally, Fasciati has also raised concerns with key member states about the persistent challenge of ensuring fairness in the U.N. process, noting that petitioners for delisting still cannot see the official reasoning for their listing and are not privy to a final confidential report detailing the ombudsperson’s reasoning for recommending to delist or retain a listing, according to diplomatic sources.
But there has been stiff resistance to greater transparency among influential council members, which have relied on highly confidential intelligence to list suspected terrorists. “I don’t think this is doable in the near future,” said one council diplomat, who spoke on condition of anonymity because of the confidential nature of internal U.N. Security Council deliberations. “I can’t see member states changing their views on this.”
The Office of the Ombudsperson owes its existence to the excesses of U.S.-led counterterrorism campaigns.
At the urging of the United States, the U.N. Security Council began passing sweeping counterterrorism measures in the late 1990s, imposing sanctions on Taliban officials for their role in harboring Osama bin Laden and his al Qaeda terrorist network.
After the 9/11 terrorist attacks in the United States, the U.N. Security Council expanded its dragnet, compelling countries to adopt laws outlawing terrorist groups and sanctioning alleged members and supporters of al Qaeda, and later the Islamic State and other affiliated terrorist groups.
But the emerging legal landscape lacked the customary checks and balances required in most democratic countries. The Security Council effectively compelled countries to rewrite their laws and impose sanctions on suspected criminals and terrorists who had no right to see the charges and defend themselves.
The process of sanctioning individuals—which typically involved a confidential complaint based on secret intelligence by one of the council’s key powers—quickly ran afoul of Western courts, particularly in Canada and the European Union, where judges ruled that the U.N. measures violated their own due process guarantees.
The dispute came to a head over the case of Yassin Abdullah Kadi, a Saudi businessman who petitioned European courts challenging his listing on the EU terrorist list. In a landmark 2008 decision, the European Court of Justice, acting on appeal, ordered Kadi’s removal from the list on the grounds that his rights to a fair hearing, property, and effective judicial review had been violated.
At the U.N., a coalition of European and Latin American governments including Austria, Costa Rica, and Liechtenstein, labeling themselves the “Group of Like-Minded States on Targeted Sanctions,” applied pressure on the council to implement reforms aimed at ensuring basic rights for people subjected to sanctions.
That effort—combined with increasing legal challenges—resulted in the Security Council’s establishment of the ombudsperson’s post in 2010. The post had no authority to appeal council terrorism designations and wielded little power to compel the council to accept its recommendations. But over time, it was able to secure a series of incremental reforms that strengthened its hand. The council later passed a resolution requiring that the ombudsperson’s recommendations could only be blocked by a unanimous vote of all 15 members of the Security Council, a provision that conveyed real power.
“I think there is a basic level of due process, and on the whole the ombudspersons have performed well,” said Liechtenstein’s U.N. Ambassador Christian Wenewasser, adding that numerous European courts have indicated the U.N. Security Council still falls short of European due process standards. “I don’t see much of a market for improving those standards at this point.”
Since the office’s inception, the coalition of like-minded countries has pressed the Security Council to grant greater independence to the ombudsperson and to ensure that sanctioned individuals are accorded basic rights of due process, arguing that the absence of legal safeguards runs counter to legal standards in democratic governments. They have also urged the council to expand the role of the ombudsperson to review other sanctions regimes, but they have met stiff resistance from the 15-nation security body.
“[A]s long as national and regional courts consider that United Nations sanctions imposed on individuals fall short of minimum standards of due process, national authorities may find themselves legally unable to implement those sanctions fully at the national level,” the coalition members wrote in a joint letter in December 2018.
They recommended that the ombudsperson’s office be made permanent, the ombudsperson’s status be upgraded to that of a U.N. judge or head of a special political mission, and that the person serving in the position no longer be subject to institutional oversight by the U.N. political affairs department.
“[T]he current contractual arrangements as a consultant … significantly impair the ability of the Ombudsperson to fulfil the mandate, in particular in terms of independence,” they wrote. “The Ombudsperson should be able to decide independently on his or her travel needs to meet with petitioners and other relevant persons and State authorities in order to fulfill his or her mandate.”
Kimberly Prost, a former Canadian judge and current justice on the International Criminal Court, who served as the first ombudsperson, recalled being taken aback by low status accorded the office in the U.N. hierarchy.
Her first office, a “windowless cubby hole,” contrasted with the sunny open-floor office that housed her more junior aides, who were U.N. staffers. Her aides often flew business class on long flights, while she was required to go coach. She exercised limited authority over her own staff, who were responsible for reporting to the U.N. Secretariat on Prost’s activities to ensure she was meeting the terms of her contract, which included a requirement that she work a set number of hours at the office, undermining her authority to determine her own working arrangements.
“They were literally tracking me,” she said. “As you can imagine, having served as a judge, that didn’t go down well with me, as it reflected how the U.N. Secretariat viewed this position.”
Prost said that she had anticipated resistance from some Security Council members, who were forced “kicking and screaming” into accepting greater oversight. But she was surprised at the bureaucratic hurdles erected by the U.N. Secretariat, even as she praised the service of her staff aides.
“I am a huge supporter of the office and view it as a great success advancing fair process,” she said. “But I had not expected the resistance of the U.N. Secretariat, the bureaucratic obstacles to implementing the actual intention of the resolution, which called for the establishment of an independent office,” she said. “That has never been done. It was truly driven by a bureaucratic response.”
“A lack of institutional support for the ombudsperson and their office risks undermining their ability to fulfill their mandate,” said Louis Charbonneau, the U.N. representative for Human Rights Watch. “This job is extremely important for ensuring that the human rights of people on the sanctions list aren’t violated. This lack of support is not only disrespectful, but it creates a lot of time-wasting.”
“Instead of devoting their days to investigating complaints and ensuring that human rights are being respected, ombudspersons have to waste valuable time battling with U.N. bureaucracy,” Charbonneau added.
The U.N. Secretariat maintains that it lacks the political authority to change the ombudsperson’s employment status without an express mandate from the Security Council and that any attempt to reform the office on its own would meet resistance in the U.N. budget committee, which is run by U.N. member states.
Catherine Marchi-Uhel, a French jurist who served as ombudsperson from July 2015 to August 2017, said the U.N. chief proposed a series of reforms in 2016 that would have reinforced the independence of her office. But they were blocked by the U.N. sanctions committee. One source familiar with the discussions said Russia had blocked the initiative.
“There had been a proposal by the U.N. Secretariat which really addressed the deficiencies of the office,” she said. “It didn’t work out in the end.”
Still, she said, the office was able to implement some important reforms, including by persuading the U.N. Secretariat to grant the ombudsperson a role in recruiting their own staff and allowing them to weigh in on their aides’ performance reviews—a standard managerial authority that had been denied to them because of their consultancy status. During her term, the ombudsperson also gained full access to the U.N. electronic database that housed the office’s internal notes and analysis—something that was not initially accessible to consultants.
The U.N. Secretariat mounted a broader effort in 2019 to seek the Security Council’s support for a plan to upgrade the consultancy status of some 61 independent experts, including the ombudsperson and scores of experts appointed to U.N. sanctions panels, according to a diplomatic source familiar with the confidential discussions. That $2.5 million initiative—which coincided with a U.N. liquidity crisis—received a cool response from key council members.
The pandemic pushed the issue further onto the back burner. The plan’s supporters tried to renew the initiative in recent months but faced pushback from a number of key powers, including the United States, Britain, and France, on the grounds that reopening a discussion on the experts’ employment status could trigger a contentious and potentially destructive negotiation with China and Russia on the future of U.N. sanctions.
Fasciati, for his part, wanted to make clear that he loved the job, despite the constraints.
“The proceedings are going well; it’s effective and there is a clear procedure [for removal from the list] with quite good transparency,” he said.
“I am not complaining at all about working on my cases. I do not have a boss, so nobody is here to give me orders,” he added. But as for the lack of institutional independence, “it’s a problem.”
If the U.N. is unable to resolve that problem, he noted in his farewell report to the council, it may struggle to “attract candidates with the necessary skill mix and experience required for the position of the Ombudsperson in the future.”
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