Proportionality and due process in targeted sanctions

Proportionality and due process in targeted sanctions describes the procedural and rights constraints governing listing, notice, reasons, evidence, review, delisting and remedy. It is not one universal rule. The applicable standard depends on the source of the sanction, the implementing legal order, the right engaged and the reviewing body's jurisdiction.

Why the issue arose

Targeted sanctions shifted pressure from whole economies towards named persons and entities. Asset freezes, travel bans and business restrictions can operate for long periods on preventive and intelligence-based judgments. That design reduced some population-wide harms but created an adjudicative problem: a listed party may suffer severe effects without advance hearing or full disclosure.

The UNSCR 1267 (1999) regime made the issue acute. Early procedures offered limited reasons and no independent merits review. The Security Council created a delisting focal point in 2006 and the UN 1267 Ombudsperson (2009) in 2009. As at 29 July 2026, the independent Ombudsperson reviews delisting requests only for the ISIL and Al-Qaida list, with a mandate extended by Resolution 2734 until 17 June 2027. Other UN regimes use different committee and focal-point procedures.

Courts and standards

In Kadi and Al Barakaat v Council and Commission (2008), the Court of Justice held that EU implementation of a Security Council listing remained subject to review against EU fundamental rights. The judgment did not invalidate the Security Council resolution. It annulled the EU measure as applied to the appellants while preserving its effects temporarily.

The European Court of Human Rights addressed national implementation in Nada v Switzerland (2012) and Al-Dulimi v Switzerland (2016). In the United Kingdom, Ahmed v HM Treasury (2010) concerned statutory authority for freezing orders, while Bank Mellat v HM Treasury (No 2) (2013) applied procedural fairness and proportionality to a direction against one bank. These judgments arise from different instruments and should not be collapsed into a single global test.

Operational tension

Governments argue that disclosure can compromise sources, methods and preventive action. Listed parties answer that unreviewable designation invites error and arbitrary power. Procedural robustness can slow action, but it can also improve evidentiary discipline and legal durability.

Operational review should separate listing criteria, reasons, disclosure, confidential-evidence arrangements, reconsideration, judicial review, licences and delisting. A humanitarian exemption addresses transaction effects. It does not supply an individual remedy against listing.

Review method

A defensible review starts with the legal act and the listing criterion. It then records the statement of reasons, disclosed evidence, opportunity to respond, standard of review, treatment of confidential material and available remedy. The proportionality inquiry must identify the legitimate objective, suitability, less restrictive alternatives and the balance between individual burden and public purpose under the governing system.

Procedure also changes over time. A listing lawful when adopted may become unsupported if reasons grow stale, while a procedural defect may be cured without proving the underlying allegation false. Annulment, delisting, licence and suspension should therefore be reported as different legal outcomes.

See also

Kadi v Council and Commission (ECJ, 2008) · Ahmed v HM Treasury (UK Supreme Court, 2010) · Bank Mellat v HM Treasury (UK Supreme Court, 2013) · UN 1267 Ombudsperson (2009) · Smart (targeted) sanctions · Humanitarian exemptions and general licences

Sources

1. Court of Justice of the European Union, *Kadi and Al Barakaat v Council and Commission*, Joined Cases C-402/05 P and C-415/05 P, 3 September 2008.
2. European Court of Human Rights, *Nada v Switzerland*, App no 10593/08, 12 September 2012.
3. European Court of Human Rights, *Al-Dulimi and Montana Management Inc v Switzerland*, App no 5809/08, 21 June 2016.
4. UK Supreme Court, *Bank Mellat v HM Treasury (No 2)*, [2013] UKSC 39.
5. United Nations Security Council, Office of the Ombudsperson, current mandate and officeholder checked 29 July 2026.
6. Supreme Court of the United Kingdom, *Ahmed and others v HM Treasury*, [2010] UKSC 2.