EU PROHIBITS GOODS FROM CRIMEA AND DELAYS FURTHER SANCTIONS UNTIL MONDAY

On 23 June 2014 the EU prohibited the import into the European Union of goods originating in Crimea or Sevastopol, with the exception of goods originating in Crimea or Sevastopol having been granted a certificate of origin by the Government of Ukraine.  See Decision 2014/386 and Regulation 692/2014 (both on the ‘sanctions in force’ section of this blog).

Today, the Council of the EU has announced that (as previously noted here) preparatory work has been undertaken for new sanctions to be imposed in view of the situation in Ukraine, and that the Council will assess the situation on Monday (30 June 2014) and “should it be required, adopt necessary decisions” for “further significant restrictive measures”.  The announcement states that by Monday the European Council expects that the following steps will have been taken:

a) agreement on a verification mechanism, monitored by the OSCE, for the cease-fire and for the effective control of the border;

b) return to the Ukrainian authorities of the three border checkpoints (Izvarino, Dolzhanskiy, Krasnopartizansk);

c) release of hostages including all of the OSCE observers; and

d) launch of substantial negotiations on the implementation of President Poroshenko’s peace plan.

EU AMENDS CENTRAL AFRICAN REPUBLIC SANCTIONS LIST

On 24 June 2014, the EU amended Regulation 224/2014, adding three individuals to the list of those subject to sanctions in the Central African Republic. They have been placed on the list for “engaging in or providing support for acts that undermine the peace, stability or security of the CAR”.

Most notably, the former President of the CAR François Yangouvonda Bozizé is now subject to sanctions as the result of his support for militiamen who are trying to destabilise the political transition in the country and bring him back to power.

Nourredine Adam and Levy Yakete – two leaders of rebel groups in the CAR – are also now subject to sanctions. These provisions form part of a new EU Regulation, which also notes Mr Adam’s involvement in acts that violate international humanitarian law and his support for armed groups through the illegal exploitation of natural resources.

As we reported earlier this year, Regulation 224/2014 was adopted by the Council in March 2014. It targets persons engaging in or supporting acts that undermine the peace, stability or security of the CAR or the political transition process. In addition, the asset-freezing measures target those who, among other things, recruit children for armed conflict in the CAR and provide support for armed groups through the illicit exploitation of natural resources, including diamonds and wildlife.

All EU sanctions measures relating to the Central African Republic are on the ‘sanctions in force’ section of this blog, which can be found here.

EU AMENDS ITS LIBYA SANCTIONS

The European Union has today:

1) Removed 2 entities from its sanctions relating to Libya (Libyan Holding Company for Development and Investment and Dalia Advisory Limited), and amended the information relating to one entity (Capitana Seas Limited), by means of a new Implementing Regulation.

2) Implemented United Nations measures which prohibit the loading, transport and discharge of crude oil illicitly exported from Libya on designated vessels, prevent designated vessels from entering ports and providing services to designated vessels, and prohibit transactions with respect to crude oil illicitly exported from Libya on designated vessels.  Those provisions are in a new Regulation and Decision.

3) Renewed its Libya sanctions for another year, and published a Notice informing listed people and entities that they have two months to challenge their designation in the European court.

All EU sanctions measures relating to Libya are on the ‘sanctions in force’ section of this blog.

EU IMPOSES SANCTIONS ON 12 SYRIAN MINISTERS

The EU has announced fresh sanctions against Syrian government ministers, accusing them of “responsibility for serious human rights violations”.

On 23 June 2014 EU foreign ministers agreed to impose an asset freeze and travel ban on 12 ministers in the Syrian government. The sanctions came into effect on the morning of 24 June, when the names of those subject to measures were published in the EU Official Journal.

The targeting of Cabinet ministers reflects the EU’s increasing frustration at the political deadlock in Syria. Although the country has been in a state of civil war since 2011, Bashar Assad was re-elected as President of Syria at the beginning of June.

The decision brings the number of individuals targeted by EU sanctions to 191. Fifty-three Syrian companies remain subject to sanctions, including the Syrian central bank.

The list of the twelve government ministers now subject to sanctions can be found here.

FCO ANSWERS QUESTION ON DRAFT EU CLASSIFIED EVIDENCE RULES

We report recently that Lord Pannick QC asked Her Majesty’s Government a question in Parliament, namely whether the Government “will be publishing a response to proposals from the European Court of Justice for new rules of procedure that would permit the General Court to take into account, in actions for annulment, confidential information that has not been shown to some of the parties to the proceedings”. The draft rules are here.

Baroness Warsi, the senior Minister for Foreign and Commonwealth Affairs, has now given the following written answer: “The Government issued an Explanatory Memorandum on the 25 May in which it highlighted these proposals as a matter of particular interest. This is a complex and sensitive issue which Governments across the EU are very carefully considering. We are aware of parliamentary interest in this issue and will continue to update on developments. Under the Treaty on European Union national security remains the sole responsibility of each Member State”.

The Explanatory Memorandum states that at present the European court will only take into account material disclosed to the Court and to the other parties (Kadi 2 and ZZ), and that Articles 103 – 105 of the draft rules are intended to “allow Member States to rely on such information if they are not willing (for security or international relations reasons) to disclose it to the other party”.  The Memorandum states that “the Government is examining this issue – which will require a careful balancing of competing priorities – in detail” and that it it is “engaging closely with other Member States, the Commission, and the Court on this proposal, and will update the Committees in due course”.

Importantly, the Memorandum also records that Article 105 of the draft rules “may have implications on the right to a fair trial (Article 6 of the ECHR).  It is the Government’s view that such procedures (which have already been adopted in the UK) are capable of being consistent with fundamental human rights.”

It is difficult to see how Article 105 is “capable of being consistent” with Article 6.  It permits a party (such as the Council of the EU) to submit that the communication of certain evidence would “harm the security of the European Union or its Member States or the conduct of their international relations”, and for the Court to take the material into account (having “weighed up” a number of factors) without it being disclosed to the other party.  In assessing that material, the Court will “take account of the fact that a main party has not been able to make his views on it known” and “has not been fully able to exercise his rights of defence”.

Article 6 of the ECHR (the right to a fair hearing) as interpreted by the European Court of Human Rights and House of Lords, requires an “irreducible minimum” level of disclosure; individuals must be given sufficient information to enable them to give effective instructions in order to refute allegations against them (even if the supporting evidence can not be disclosed), even where it would be damaging to national security to disclose that “irreducible minimum”.   The ECJ’s Kadi 2 and ZZ judgments both required disclosure of the “essence of the grounds” (i.e. an irreducible minimum).  The new draft rules do not require this irreducible minimum.

It is also unclear what the FCO means when it says that these procedures have “already been adopted in the UK”.  If the FCO is referring to the Justice & Security Act, those procedures are very different in a number of respects, including strict preconditions for a closed material procedure, and the presence of special advocates to represent the interests of listed parties.  As far as we are aware, there is no procedure asking to Article 105 of the draft rules in the UK.

UN EXTENDS MANDATE OF OMBUDSPERSON AND AQ SANCTIONS COMMITTEE

The United Nations Security Council adopted two resolutions last week (17 June 2014) relating to its Al Qaida and Taliban sanctions programmes.

Resolution 2160 (2014) reinforces the UN’s sanctions (asset freezes and travel bans) against individuals and entities associated with the Taliban, and invites the Government of Afghanistan to submit names for inclusion on that list.

Resolution 2161 (2014) extends the mandate of the Office of the Ombudsperson to the UN Al Qaida and Taliban Sanctions Committee (established by resolution 1904 (2009)), and of the Committee’s Monitoring Team, for 30 months from June 2015 (the end date of the current mandate).  The current UN Ombudsperson (the first person to hold this post) is Kimberley Prost, formerly the Canadian Judge at the International Criminal Tribunal for the Former Yugoslavia in the Hague.  Interesting, in the light of the Kadi litigation in the European Courts (see here), the resolution also (among other things):

1) Requests the Secretary General of the UN “to continue to strengthen the capacity of the Office of the Ombudsperson by providing necessary resources”;

2) “Strongly urges Member States to provide all relevant information to the Ombudsperson, including any relevant confidential information, where appropriate”, and welcomes arrangements entered into between Member States and the Ombudsperson to facilitate the sharing of confidential information; and

3) Requests that Member States and relevant bodies “encourage individuals and entities that are considering challenging or are already in the process of challenging their listing through national and regional courts to seek removal from the Al-Qaida Sanctions List by submitting delisting petitions” to the Ombudsperson, and encourages States to reproved reasons for submitting delisting requests and to permit the Ombudsperson to reveal the identity of the State.

Resolution 2161 expreses concern about the increased use of the internet and new communications technologies by terrorists, and urges States to prevent the supply of arms and related material to people and entities associated with Al Qaida.  It also urges States to implement the Financial Action Task Force’s revised 40 recommendations for combating money laundering and financing terrorism and proliferation.

CANADA MAKES ADDITIONS TO UKRAINIAN AND RUSSIAN SANCTIONS LISTS

On 21 June 2014 Canada made additions to both its Ukrainian and Russian sanctions lists.

Canada added ten individuals and a Crimean oil company, Feodosia Enterprise, to its Ukrainian sanctions list. The full list of those now subject to sanctions is here.

We have previously reported on Canada’s sanctions relating to Ukraine, which target people “engaged in activities that directly or indirectly facilitate, support, provide funding for or contribute to a violation or attempted violation of the sovereignty or territorial integrity of Ukraine or that obstruct the work of international organizations in Ukraine”.

In addition, the Canadian government added one individual, Vladimir Shamanov, to its Russian sanctions list (the amending regulation can be found here).  The Russian sanctions list is aimed at those believed to be connected with the Government of Russia or who are “engaged in activities that directly or indirectly facilitate, support, provide funding for, or contribute to the deployment of Russian armed forces to Crimea in clear violation of Ukraine’s sovereignty and territorial integrity”.

We also reported yesterday on the USA’s seven additions to its targeted sanctions list. All the additions made by Canada to its Ukrainian sanctions list are different to those imposed by the USA, save for Vyacheslav Ponomaryov, who has been added by both countries.

USA ADDS 7 “SEPARATISTS” TO UKRAINE SANCTIONS LIST

As we foreshadowed earlier today, the US Treasury Department has today added 7 “separatists” to its sanctions list, for being “responsible for or complicit in actions or policies that threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine”.

“The United States will continue to take action to hold accountable those persons engaged in efforts to destabilize Crimea andeastern Ukraine,” said Under Secretary for Terrorism and Financial Intelligence David S. Cohen. “These individuals have all contributed to attempts to illegally undermine the legitimate government in Kyiv, notably by falsely proclaiming leadership positions and fomenting violent unrest.”  The Treasury’s statement says that “any assets of the individuals designated today that are within U.S. jurisdiction must be frozen. Additionally, transactions by U.S. persons or within the United States involving the individuals designated today are generally prohibited.”

The list of individuals is here.  Links to previous blogs on US sanctions relating to Ukraine are here.