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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 
 
¶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