Identifier
Created
Classification
Origin
08STATE108662
2008-10-09 22:15:00
UNCLASSIFIED
Secretary of State
Cable title:  

DEMARCHE REGARDING SOMALIA SANCTIONS UNSC

Tags:  EFIN ETTC KTFN PREL PTER XW UNSC 
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OO RUEHWEB

DE RUEHC #8662 2832222
ZNR UUUUU ZZH
O R 092215Z OCT 08
FM SECSTATE WASHDC
TO RUEHFR/AMEMBASSY PARIS IMMEDIATE 0000
RUEHLO/AMEMBASSY LONDON IMMEDIATE 0000
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0000
INFO RHEHNSC/NSC WASHINGTON DC 0000
RUEATRS/TREASURY DEPT WASHINGTON DC 0000
UNCLAS STATE 108662 

SIPDIS

E.O. 12958: N/A
TAGS: EFIN ETTC KTFN PREL PTER XW UNSC
SUBJECT: DEMARCHE REGARDING SOMALIA SANCTIONS UNSC
RESOLUTION

REF: USUN 664

UNCLAS STATE 108662

SIPDIS

E.O. 12958: N/A
TAGS: EFIN ETTC KTFN PREL PTER XW UNSC
SUBJECT: DEMARCHE REGARDING SOMALIA SANCTIONS UNSC
RESOLUTION

REF: USUN 664


1. This is an action request. Please see para 2.

--------------
ACTION REQUEST
--------------

2. At the highest appropriate level, action addressees are
requested to inform French and UK counterparts that the
United States cannot agree to the automatic expiration of the
sanctions after twelve months in the UK-drafted Somalia
sanctions United Nations Security Council Resolution and that
this issue should be resolved in the P-3 negotiations prior
to circulating the resolution to the full Council. If
adopted, this resolution would expand the current sanctions
regime in Somalia from a comprehensive arms embargo to
include targeted measures (asset freeze and travel ban) for
those spoiling the peace process.


3. On 9 October, the UK Mission to the UN in New York (UKUN)
informally notified USUN that they would be agreeable to
dropping the "as designated by the Committee" from the asset
freeze language in operative paragraph (OP) 3 of the draft
resolution. If the UK has in fact agreed to drop "as
designated by the Committee" from OP 3, USUN and Embassy
London are requested to express gratitude for the UK,s
cooperation and to underscore that we believe this will serve
our delegations well in the long run, as well as create a
more robust sanctions regime for Somalia specifically. If
the UK reverts to insisting that "as designated by the
Committee," remain in OP 3, action addressees are requested
to inform counterparts that the United States cannot agree to
including the phrase (see paras 8 - 10).

--------------
STRATEGIC OBJECTIVE
--------------

4. The United States supports the efforts to expand the
current sanctions regime in Somalia. However, in the
protracted P-3 negotiations of this resolution, the UK and
France have insisted on including two points in the draft
UNSC resolution, which are redlines for the U.S. We seek to
reiterate our position to the UK and France that the
sanctions should not automatically expire (and that "as
designated by the Committee" should be deleted from the asset
freeze language) with a goal of persuading them to drop
this/these issue(s),particularly as we have agreed to

several of their requested changes during the P-3 negotiation
process.

--------------
BACKGROUND
--------------

5. In July, the UNSC Sanctions Committee for Somalia
recommended that the Security Council adopt a resolution
providing for targeted sanctions against individuals and
entities that undermine the peace process in Somalia. The UK
drafted the resolution and has had several rounds of P-3
consultations, during which we conceded on a number of
points. While, UKUN says they want to secure P-3 agreement
prior to circulating the resolution, they are pushing us to
agree to circulation on 10 October even though we have not
resolved the automatic expiration of the sanctions issue.
The French want to move the resolution to the full Council
for negotiation now in an effort to force our hand on the
redline of having the sanctions expire automatically. When
discussing Sudan sanctions in August, the French argued that
the U.S. should not circulate a resolution to the Council
without P-3 unity, but this is precisely what they are
pushing for now.


6. TIME-LIMITED SANCTIONS
France is pressing to include in the resolution a
twelve-month time limit, such that the targeted sanctions
would automatically be lifted unless the UN Security Council
adopts a subsequent resolution to renew the measures.
Although the Council has included such time limits in other
sanctions regimes (e.g., Liberia),U.S. policy has generally
been to oppose time-limited sanctions for the reasons
discussed below (see para 7). As a compromise, we proposed
including instead a provision stating the Council's intention
to "review" the measures in twelve months and decide in light
of the situation in Somalia at that time whether to
strengthen, terminate or otherwise modify the sanctions
regime. The Council has taken this approach in other
sanctions regimes (e.g., 1267 (al-Qaida/Taliban),Cote
d'Ivoire, and Iran). The UK has indicated it could support
such a compromise. The French Mission to the UN in New York,
however, has informed USUN that they have instructions not to
agree to the twelve-month "review" compromise. They have
argued that it is important that the Security Council retain
control of the issue and that the requirement to renew the
regime every twelve months would send a useful political
signal to those who feared being added to the list. It is
unclear how these concerns are related to a time-limit, as
well as why the twelve-month "review" compromise would be
contrary to or insufficient in meeting these objectives. The
French indicated that before compromising with a twelve month
"review" they will first seek support for the sanctions to
expire after twelve months from other members on the Council.



7. U.S. policy is not to agree to time-limited sanctions for
the following reasons:
- Time-limited UN sanctions take away the Council's
flexibility to respond appropriately in light of facts on the
ground;
- The Security Council can terminate the targeted sanctions
whenever it wishes, so the time limit is not only unnecessary
in that it does not in fact afford the Council any additional
"control" over the measures, but also arguably removes a
level of control by allowing for automatic expiration absent
Council action;
- If the UNSC has to renew these measures through adoption of
a resolution every 12 months, we will always need 9
affirmative votes and no vetoes in order to have the measures
continue - an unnecessary burden, especially since the
Council can modify or terminate the sanctions when/if the
situation in Somalia improves;
- If we support automatic expiration in this resolution, we
can expect others to press for this approach in other
contexts, where it may prove quite difficult to secure the
necessary votes to renew contentious sanctions that the P-3
have agreed are critical to addressing significant threats to
international peace and security (e.g., Iran); and
- An annual "review" has the advantage of demonstrating that
the sanctions are under continuous review without the
disadvantages identified above.


8. AS DESIGNATED BY THE COMMITTEE
Operative paragraph (OP) 3 of the draft resolution provides
for an asset freeze on two tiers of targets: (1) individuals
or entities designated by the Somalia Sanctions Committee as
meeting the designation criteria set out in operative
paragraph 7; and (2) those owned or controlled by, or acting
on behalf of, such individuals or entities. Until 9 October,
the UK insisted on including the phrase "as designated by the
Committee" to the second tier to make clear that the
obligation to freeze assets with respect to second tier
targets applies only where such targets are separately
designated by the Committee. UKUN now says they will drop
this phrase from the draft prior to circulating the
resolution to the full Council. The U.S. prefers to provide
for a more robust regime by requiring States to freeze assets
of individuals or entities they determine qualify as second
tier targets irrespective of Committee action (see para 9).
The French indicated in Paris that this is not a redline for
them and would support the deletion of the phrase. However,
their Mission in NY tells USUN that this phrase should remain
in the text.


9. Including the phrase, "as designated by the Committee," in
OP 3 would unnecessarily narrow
the scope of the asset freeze:
- The Committee would still have the authority to designate
those acting on behalf of designated individuals or entities;
- Imposing a self-judging requirement on States to freeze
assets of those they independently determine are controlled
by or acting on behalf of designated individuals or entities
would provide UNSC cover for more robust implementation by
States that are more willing to be proactive. This has
proven to be a useful tool, particularly in allowing States
to keep pace with attempts to circumvent sanctions through
the use of front companies or other proxies;
- In response to concerns related to recent domestic
challenges to asset freeze implementation (i.e., ECJ ruling
on Al Barakaat Foundation and Qadi): States would determine
for themselves when they had a sufficient basis to apply the
asset freeze to potential second tier targets;
- The potential for less uniform application of the asset
freeze to second tier targets does not argue for eliminating
the potential for a more robust regime.
- While this provision may be more critical in sanctions
regimes like that for Iran that involve more complicated
trade networks or where it is more difficult to obtain
consensus to designate in the sanctions committee, if we
accept language in this resolution, we can expect to be
pressured to accept it in other regimes;
- The Council's practice in this regard has not been
consistent, so it would be inaccurate to argue there is any
clear precedent. Some UN sanctions regimes (Cote d'Ivoire,
Democratic Republic of the Congo, and Liberia) include "as
designated by the Committee" with respect to those acting on
behalf of other designees, while other regimes do not (Sudan,
1267, DPRK).
- Neither the UK nor the French have presented arguments
that merit narrowing the scope of the asset freeze and
thereby potentially eliminate some UN cover for those states
willing to be more proactive.


10. The UK indicated it would be willing to consider a
compromise that would extend the obligation to freeze assets
of second tier targets "as designated by the Committee or by
Member States." We are concerned that "as designated by
Member States" could be read to mean States are obligated to
freeze assets based on national lists of other States, and we
cannot agree to that.

--------------
DRAFT RESOLUTION
--------------

11. The Security Council,

Recalling its previous resolutions concerning the situation
in Somalia, in particular resolution 733 (1992),resolution
751 (1992),resolution 1356 (2001),resolution 1425 (2002),
resolution 1519 (2003),resolution 1725 (2006),resolution
1744 (2007),resolution 1772 (2007),resolution 1801 (2008),
resolution 1811 (2008),and resolution 1814 (2008),and the
statements of its President, in particular those of 13 July
2006 S/PRST/2006/31, 22 December 2006 S/PRST/2006/59, 30
April 2007 S/PRST/2007/13, and 14 June 2007 S/PRST/2007/19.

Reaffirming its respect for the sovereignty, territorial
integrity, political independence and unity of Somalia,

Underlining the importance of providing and maintaining
stability and security throughout Somalia,

Reaffirming its condemnation of all acts of violence in
Somalia and incitement to violence inside Somalia, and
expressing its concern at all acts intended to prevent or
block a peaceful political process,

Emphasizing the continued contribution made to Somalia's
peace and security by the arms embargo imposed by paragraph 5
of resolution 733 (1992),as elaborated and amended by
resolutions 1356 (2001),1425 (2002),1725 (2006),1744
(2007) and 1772 (2007),and reiterating its demand that all
Member States, in particular those in the region, comply
fully with the requirements of these resolutions,

Recalling its intention, outlined in paragraph 6 of
resolution 1814 (2008),to take measures against those who
seek to prevent or block a peaceful political process, or
those who threaten the Transitional Federal Institutions
(TFIs) of Somalia or the African Union Mission in Somalia
(AMISOM) by force, or take action that undermines stability
in Somalia or the region,

Further recalling its intention to strengthen the
effectiveness of the United Nations arms embargo on Somalia,
outlined in paragraph 7 of resolution 1814 (2008) and to take
measures against those who breach the arms embargo, and those
who support them in doing so,

Recalling also its request to the Committee established
pursuant to resolution 751 (1992) (hereinafter "the
Committee") to provide recommendations on specific targeted
measures to be imposed against such individuals or entities,

Taking note of the letter of 1 August 2008 from the
Chairperson of the Committee to the President of the Security
Council,

Determining that the situation in Somalia continues to
constitute a threat to international peace and security in
the region,

Acting under chapter VII of the Charter of the United Nations,


1. Decides that all States shall ((for a period of twelve
months)) take the necessary measures to prevent the entry
into or transit through their territories of individuals
designated by the Committee pursuant to paragraph 7 below,
provided that nothing in this paragraph shall oblige a State
to refuse its own nationals entry into its territory;


2. Decides that the measures imposed by paragraph 1 above
shall not apply:

(a) Where the Committee determines on a case-by-case basis
that such travel is justified on the grounds of humanitarian
need, including religious obligation; or

(b) Where the Committee determines on a case-by-case basis
that an exemption would otherwise further the objectives of
peace and national reconciliation in Somalia and stability in
the region;


3. Decides that all States shall ((for the same twelve month
period)) freeze without delay the funds, other financial
assets and economic resources which are on their territories
at the date of adoption of this resolution or at any time
thereafter, which are owned or controlled, directly or
indirectly, by the individuals or entities designated by the
Committee pursuant to paragraph 7 below, or by individuals or
entities acting on their behalf or at their direction, or
entities owned or controlled by them ((as designated by the
Committee)),and decides further that all States shall ensure
that any funds, financial assets or economic resources are
prevented from being made available by their nationals or by
any individuals or entities within their territories, to or
for the benefit of such individuals or entities;


4. Decides that the measures imposed by paragraph 3 above do
not apply to funds, other financial assets or economic
resources that have been determined by relevant States:

(a) to be necessary for basic expenses, including payment
for foodstuffs, rent or mortgage, medicines and medical
treatment, taxes, insurance premiums, and public utility
charges or exclusively for payment of reasonable professional
fees and reimbursement of incurred expenses associated with
the provision of legal services, or fees or service charges,
in accordance with national laws, for routine holding or
maintenance of frozen funds, other financial assets and
economic resources, after notification by the relevant State
to the Committee of the intention to authorize, where
appropriate, access to such funds, other financial assets or
economic resources and in the absence of a negative decision
by the Committee within three working days of such
notification;

(b) to be necessary for extraordinary expenses, provided
that such determination has been notified by the relevant
State or States to the Committee and has been approved by the
Committee; or

(c) to be the subject of a judicial, administrative or
arbitral lien or judgment, in which case the funds, other
financial assets and economic resources may be used to
satisfy that lien or judgment provided that the lien or
judgment was entered into prior to the date of the present
resolution, is not for the benefit of a person or entity
designated pursuant to paragraph 3 above, and has been
notified by the relevant State or States to the Committee;


5. Decides that States may permit the addition to the
accounts frozen pursuant to the provisions of paragraph 3
above of interests or other earnings due to those accounts or
payments due under contracts, agreements or obligations that
arose prior to the date on which those accounts became
subject to the provisions of this resolution, provided that
any such interest, other earnings and payments continue to be
subject to these provisions and are frozen;


6. Reaffirms the general and complete arms embargo against
Somalia imposed by resolution 733 (1992),as elaborated and
amended by resolutions 1356 (2001),1425 (2002),1725 (2006),
1744 (2007) and 1772(2007);


7. Decides that all States shall take the necessary measures
to prevent the direct or indirect supply, sale or transfer of
weapons and military equipment and the direct or indirect
supply of technical assistance or training, financial and
other assistance including investment, brokering or other
financial services, related to military activities or to the
supply, sale, transfer, manufacture, maintenance or use of
weapons and military equipment, to the individuals or
entities designated by the Committee pursuant to paragraph 7
below;


8. Decides that the provisions of paragraphs 1, 3, and 7
above shall apply to the following individuals and, as
appropriate, entities, as designated by the Committee;

(a) Individuals or entities who engage in or provide
support for acts that threaten the peace, security or
stability in or related to Somalia, including acts that
threaten the Djibouti Agreement of 18 August 2008 or any
other peaceful political process, or threaten the TFIs or
AMISOM;

(b) Individuals or entities who breach the measures as
described in paragraphs 6 and 7 above; or

(c) Individuals or entities who impede access to, or
distribution of, humanitarian assistance to Somalia;


9. Decides that the measures outlined in paragraphs 1, 3 and
7 in this resolution shall cease to apply in respect of such
individuals or entities if, and at such time as the Committee
removes them from the list of designated individuals and
entities;


10. Decides to expand the mandate of the Committee to include
the following tasks:

(a) to seek from all States, in particular those in the
region, information regarding the actions taken by them to
implement effectively the measures imposed by paragraphs 1,
3, and 7 above and whatever further information it may
consider useful in this regard;

(b) to examine and take appropriate action on information
regarding alleged violations of measures imposed by
paragraphs 1, 3 and 7 of this resolution, paragraph 5 of
resolution 733 (1992) and paragraphs 1 and 2 of resolution
1425 (2002);

(c) to consider and decide upon requests for exemptions
set out in paragraphs 2 and 4 above;

(d) to designate individuals and entities pursuant to
paragraph 7 above;

(e) to amend its existing guidelines as may be necessary
to facilitate the implementation of the measures imposed by
this resolution and include in such guidelines a requirement
on States to provide information where possible as to why any
individuals and/or entities meet the criteria set out in
paragraph 7 and any relevant identifying information;

(f) to report at least every 90 days to the Security
Council on its work and on the implementation of this
resolution, with its observations and recommendations, in
particular on ways to strengthen the effectiveness of the
measures imposed by paragraphs 1, 3 and 7 above;


11. Decides that the mandate of the Monitoring Group referred
to in paragraph 3 of resolution 1811 (2008) shall also cover
the measures set out in paragraph 6 above;


12. Reminds all States of their obligation to implement
strictly the measures imposed by this and all relevant
resolutions;


13. Decides that all States shall report to the Committee
within 90 days of the adoption of this resolution on the
steps they have taken with a view to implementing effectively
paragraphs 1 and 7 above;


14. Decides to review the measures imposed by paragraphs 1,
3, and 7 above, with a a view to their possible
strengthening, in 12 months or sooner if necessary;


15. Decides to remain actively seized of the matter.

END TEXT

--------------
POC AND REPORTING DEADLINE
--------------

12. Jean T Clark (clarkjt@state.sgov.gov, 202.736.7736)
in IO/PSC is the point of contact. Reporting deadline is 10
October 2008.


13. Department appreciates Posts' efforts.
RICE