At the beginning of last week myself and a number of journalists, most notably Josh Gerstein at Politico who forwarded me some very useful statements, wrote about the policy the U.S. government was adopting towards U.S. persons who may potentially violate sanctions for providing money to sanctions targeted persons in Somalia during the course of carrying out humanitarian efforts. By the end of the week, The United States Department of the Treasury Office of Foreign Assets Control (OFAC) released a statement updating their Frequently Asked Questions and Answers (FAQ) section to reflect these statements.
The updated FAQ confirms what I previously stated in this blog; that there is no concern of violating U.S. sanctions relating to Somalia if the parties with whom U.S. persons are transacting have not been specifically targeted for sanctions and are not on the OFAC Specially Designated Nationals and Blocked Persons List (SDN List).
Moreover, OFAC confirmed the statements earlier this week which made it clear that those engaged in humanitarian activities which unintentionally lead to food and medicine ending up in the hands of Al-Shabaab or other Specially Designated National’s hands will not be punished for such technical violations of the Somalia sanctions program. OFAC contends that such incidental benefits are not the focus of OFAC administered sanctions.
OFAC did clarify, however, that if U.S. persons providing humanitarian assistance in Somalia are repeatedly being forced to pay bribes to Al-Shabaab, then they should consult with OFAC prior to proceeding with their operations.
This guidance is nice, but cases will still need to be viewed on a case to case basis to determine the need for a penalty. Moreover, the guidance makes it clear–incidental transactions may avoid enforcement action, while more consistent transactions violating the Somalia sanctions will require consultation with OFAC.
The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
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