VZCZCXYZ0000
OO RUEHWEB

DE RUCNDT #0881/01 2810931
ZNR UUUUU ZZH
O 080931Z OCT 09
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7279
INFO RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHIL/AMEMBASSY ISLAMABAD IMMEDIATE 2512
RUEHBUL/AMEMBASSY KABUL IMMEDIATE 0299
RUEHNE/AMEMBASSY NEW DELHI IMMEDIATE 2819
RUEHBS/USEU BRUSSELS IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEATRS/DEPT OF TREASURY WASHDC IMMEDIATE

UNCLAS USUN NEW YORK 000881 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ETTC PREL EFIN PTER KTFN UNSC
SUBJECT: 1267: U.S./UK BRAINSTORM OPTIONS FOR NEW RESOLUTION 
 
¶1. SUMMARY: Ambassador Wolff and UK Deputy Perm Rep Parham 
informally discussed the challenges facing the 1267 
al-Qaeda/Taliban sanctions regime and weighed the merits of 
the UK's proposal to establish an "independent review" panel 
to advise the 1267 Committee how to decide on requests from 
individuals and entities who want to be removed from the 1267 
List.  They also discussed the option of appointing a 1267 
"Ombudsperson" who would have a mandate to assist the 
Committee in reviewing delisting requests but not to make 
recommendations to the Committee on whether to grant such 
requests (see para 4).  Wolff and Parham agreed to share 
these thoughts with their respective capitals.  END SUMMARY. 
 
¶2. On October 5, Ambassador Wolff and UK Deputy Perm Rep 
Parham discussed informally the challenges facing the 1267 
al-Qaeda/Taliban sanctions regime and how best to address 
them in the new 1267 resolution due to be adopted in 
December.  Parham explained in greater detail the domestic 
legal challenges to the UK's implementation of the 1267 
sanctions.  The UK, he said, believed that the introduction 
of a mechanism for "independent review" (i.e., a panel that 
would review requests of individuals who want to be removed 
from the 1267 List and then make recommendations to the 1267 
Committee on whether the requests should be granted) would go 
far to addressing a gap in fairness that has been identified 
by courts and critics.  Wolff asserted that introducing 
independent review could impact the Security Council's 
primacy under the UN Charter and, in particular, risked 
undermining the Article 25 obligation of states to accept and 
carry out Council decisions. 
 
¶3. Parham and Wolff noted that Austrian Perm Rep 
Mayr-Harting, chair of the 1267 Committee, had recently 
floated a poorly-defined proposal for an "Ombudsperson" for 
the 1267 regime.  Wolff asked Parham whether it might be 
acceptable to London to have an Ombudsperson who would assist 
the Committee in reviewing delisting requests -- namely 
through compiling and analyzing information and facilitating 
dialogue between the Committee and the petitioner -- but 
would not have a mandate to issue recommendations for how the 
Committee should act.  Parham agreed to consider the idea 
further.  Wolff also underscored the need to include other 
reforms in the new resolution to improve fairness and 
transparency, such as to encourage Committee members to do 
better prior review of listings before agreeing to a new 
designation.  U.S. and UK experts further refined these ideas 
(text at para 4) and agreed to share them with our respective 
capitals for review. 
 
¶4.  1267 DISCUSSION DRAFT: 
 
//BEGIN TEXT// 
 
1267 Successor Resolution -- 
Brainstorming and Discussion Draft 
 
1) OMBUDSPERSON 
 
An appointed Ombudsperson would help ensure the interests of 
designees are more directly incorporated into 1267 Committee 
deliberations.  The Ombudsperson would be empowered to 
facilitate substantive dialogue and information sharing 
between a person who wants to be delisted and the Committee 
and key states.  He or she would compile and analyze 
information for the Committee's review and lay out the 
arguments both in favor of and against a delisting request. 
The Ombudsperson would not, however, issue recommendations 
for how the Committee should decide on the request. 
 
The Ombudsperson would initially apply only to designees on 
the 1267 List, superseding the Focal Point for this regime 
only.  In a later stage, its mandate could be expanded for 
all regimes. 
 
OMBUDSPERSON MANDATE 
 
Upon receipt of a delisting request, the Ombudsperson shall: 
 
a)    Carry out administrative functions currently performed 
by the Focal Point (e.g., receive a petition, transmit it to 
the Committee and reviewing states), plus additional 
functions to facilitate the flow of information to the 
petitioner; 
 
b)    Compile, with the support of the Monitoring Team, all 
available information about the case (e.g., news reports, 
 
court rulings, etc.) for the Committee's review; 
 
c)    Facilitate dialogue among the petitioner, the Committee 
and designating state(s) and state(s) of 
residence/nationality, in order to: 
 
     i.     Solicit from relevant states reasons for 
supporting or opposing the delisting, including possible 
actions the petitioner could take to strengthen the delisting 
request; 
 
     ii.    Forward to the petitioner questions/requests for 
clarification from relevant parties. 
 
     iii.   Based upon consultations with relevant states and 
the Committee, ask the petitioner to provide additional 
information/clarifications that may help the Committee's 
consideration of the request. 
 
d)    Submit a report to the Committee that 1) summarizes all 
the available information, and 2) identifies principal 
factors for/against delisting; 
 
e)    Answer Committee members' questions in meetings where 
the petition is discussed; 
 
f)    Convey the Committee's decision to the petitioner, with 
an explanation for the decision; 
 
g)    Upon request from a rejected petitioner, recommend that 
the chair place the delisting petition on the agenda of the 
Security Council for review concurrent with the Committee's 
next regularly-scheduled biannual report. 
 
 
2) PROCEDURAL IMPROVEMENTS FOR INITIAL LISTING DECISIONS 
 
a)    Decides that listing decisions shall be put to the 
Committee under a ten-day "no objection" deadline (instead of 
current practice of five days) to allow more thorough 
consideration by Committee members of new listings; 
 
b)    Encourages all members of the Committee to share with 
the Committee any additional information they have regarding 
a pending designation. 
 
c)    Notes that the primary responsibility to ensure the 
appropriateness of new listings lies with the members of the 
Committee; 
 
d)    Requires that the statements of case submitted by 
designating states shall be publicly releasable, except for 
those parts of the statements of case that the designating 
state has identified as being confidential to the Committee; 
 
e)    Requires the Committee to approve a narrative summary 
of reasons for listing at the same time the Committee 
approves a new designation; 
 
f)    (Requests the Monitoring Team to propose to the 
Committee for its consideration minimum identifying criteria 
for listing (for eventual posting on the Committee's 
website).) 
 
 
3) ENHANCED MONITORING TEAM ROLE 
 
a)    Requests that the Monitoring Team collect and present 
to the Committee all available information relevant to 
listing requests; 
 
b)    Decides that the following additional tasks shall be 
added to the Monitoring Team's mandate (note: some of these 
tasks could alternatively be assigned to an ombudsperson): 
 
     i.     To bring to the Committee's attention new or 
noteworthy circumstances that may warrant a delisting (e.g., 
publicly-reported information on a deceased individual); 
 
     ii.    To collate, assess, monitor and report this 
information, for the purpose of assisting the Committee's 
review and de-listing processes. 
 
     iii.   To assist the Ombudsperson in his or her mandate 
to provide fact-based assessments, based on open-source 
information, of the accuracy, strengths and weaknesses of 
 
information provided in a delisting request; 
 
     iv.    To propose to the Ombudsperson questions or 
requests for more information that the Committee may wish to 
address to a delisting petitioner via the Focal Point; 
 
     v.     To further assist the Committee in its review and 
delisting procedures by undertaking travel and contact with 
member states and listed individuals and entities, with a 
view to developing the Committee's record of all the facts 
and circumstances relating to a listed individual or entity, 
in particular to assess the circumstances of reportedly 
decided individuals on the List. 
 
c)    Requests the Monitoring Team circulate to the Committee 
annually a list of individuals on the list who are reportedly 
deceased, along with information on the proof of death and 
the status of frozen assets, that shall include 
recommendations for the chair to submit to the Committee a 
delisting request for those names for which there is high 
confidence in the proof of death and low concern that 
unfrozen assets would be claimed by other extremists; 
 
d)    Requests the Monitoring Team to work with Member States 
to compile additional identifying information for listings; 
 
e)    Requests the Monitoring Team submit a report by 30 July 
2010 on the outcome of the comprehensive review, highlighting 
the Committee's serious efforts and assembling statistics on 
retention/delisting; 
 
 
4) OTHER COMMITTEE PRACTICES 
 
a)    Directs the Committee to amend its Guidelines so that 
Committee members may place on "hold" a Committee decision 
for a period of no more than three months, renewable up to 
four times (i.e., one year), after which the hold shall 
automatically expire, and further encourages states to 
explain to the Committee the reasons why a hold has been 
placed; 
 
b)    Requires states that have placed "holds" on Committee 
delisting decisions prior to the adoption of this resolution 
to make a final decision within one year or else the matter 
will be brought for a vote of the Security Council to be held 
concurrent with the Committee's next regularly-scheduled 
biannual report. 
 
c)    Encourages the Committee to give due deference to 
delisting requests made by a designating state, state of 
residence or state of nationality/incorporation. 
 
d)    (Encourages designating states to agree to allow the 
Committee to inform the designee of their status as the 
designating state;)  (NOTE: The UK strongly favors this 
provision, which they say stems from issues arising in 
domestic litigation.  END NOTE). 
 
e)    Encourages states to answer promptly all Committee 
requests for information relevant to the one-time 
comprehensive review pursuant to resolution 1822, and further 
notes that all states should reply no later than 1 March 2010 
so that the Committee can take their opinions into account in 
the completion of this review; 
 
f)    Clarifies that names shall be reviewed regularly by the 
Committee every (X) years from the date on which the 
Committee completed its one-time comprehensive review 
pursuant to resolution 1822; 
 
g)    Reaffirms that the payment of ransoms to designated 
individuals and entities constitutes a violation of the asset 
freeze provisions and is prohibited; 
 
 
5) ENHANCED FOCAL POINT TASKS FOR OMBUDSPERSON 
 
a)    In addition to the current tasks performed by the Focal 
Point, the Ombudsperson could also be authorized to: 
 
     i.     Distribute information prepared by the Committee 
to petitioners about the process (e.g., Committee Guidelines, 
fact sheets, etc.). 
 
     ii.    Share immediately incoming de-listing requests 
 
with all members of the Committee (and not just designating 
states and states of citizenship/residence/incorporation). 
 
     iii.   Transmit to the Committee a request from a 
petitioner for a humanitarian exemption to the asset 
freeze/travel ban (i.e., addresses situations where a state 
of residence/nationality is unwilling to make this request on 
behalf of a listed individual or entity). 
 
//END TEXT// 
RICE