US still wanted EU to have leverage on Zimbabwe

The United States government said it was against the lifting of sanctions on eight Zimbabwe parastatals by the European Union because their designation provided a significant leverage on President Robert Mugabe and the Zimbabwe African National Union-Patriotic Front.

 The EU said it had removed the parastatals listed in 2009, just after one year, because it had learnt that they were under the control of the Ministry of Finance ,headed by Tendai Biti of the Movement for Democratic Change, and were thus de-linked from ZANU-PF.

 The Unites States cautioned that the de-listing of these entities would most likely diminish EU leverage with respect to the Zimbabwean regime.

Full cable:

Viewing cable 10BRUSSELS219, U.S. – EU SANCTIONS INFORMAL

If you are new to these pages, please read an introduction on the structure of a cable as well as how to discuss them with others. See also the FAQs

VZCZCXRO9777

PP RUEHAG RUEHROV RUEHSL RUEHSR

DE RUEHBS #0219/01 0560842

ZNY CCCCC ZZH

P 250842Z FEB 10 ZDK

FM USEU BRUSSELS

TO RUEHC/SECSTATE WASHDC PRIORITY

INFO RUCNMEU/EU INTEREST COLLECTIVE PRIORITY

RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY

RUEHGG/UN SECURITY COUNCIL COLLECTIVE PRIORITY

RUEAORC/US CUSTOMS AND BORDER PROTECTION WASHINGTON DC PRIORITY

RUEKJCS/DOD WASHDC PRIORITY

RUCPDOC/USDOC WASHDC PRIORITY

RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY

RUEATRS/DEPT OF TREASURY WASHDC PRIORITY

RHEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC PRIORITY

RHEHNSC/NSC WASHDC PRIORITY

RUEAIIA/CIA WASHINGTON DC PRIORITY

C O N F I D E N T I A L SECTION 01 OF 06 BRUSSELS 000219

NOFORN

SIPDIS

STATE FOR IO, EEB, S/CT, S/P, EUR, L, AF, EAP

TREASURY FOR TFI

JUSTICE FOR CIVIL DIVISION

E.O. 12958: DECL: 02/24/2020

TAGS: BEXP BM EAIR EFIN ETTC EUN EWWT KJUS KN KNNP

KTFN, PINR, PTER, SO, UNSC, ZI, ER

SUBJECT: U.S. – EU SANCTIONS INFORMAL

REF: A. 2009 BRUSSELS 1524

¶B. 2010 BRUSSELS 35

¶C. 2009 BRUSSELS 101

¶D. 2010 BRUSSELS 197

¶E. 2009 BRUSSELS 616

¶F. 2009 BRUSSELS 493

BRUSSELS 00000219 001.2 OF 006

Classified By: USEU EconMinCouns Peter Chase for reasons 1.4 (b) and (d

).

¶1. (C//NF) SUMMARY. On February 3, an interagency

delegation held an off-the-record roundtable discussion on

sanctions issues with Spain (current EU Presidency) and the

EU institutions. Topics included legal challenges to

sanctions regimes, innovations to UN and EU counterterrorism

programs, data privacy, North Korea, Zimbabwe, Burma,

Eritrea, and Somalia. EU representatives welcomed changes to

the UN 1267 (Al-Qaeda and Taliban) sanctions program made by

UNSCR 1904, noting the updated EU Regulation implementing

those measures. But they indicated some uncertainty

concerning future EU implementation of UN 1267 sanctions,

given the ongoing designation challenges before EU courts and

an anticipated lawsuit by which the European Parliament would

assert co-equal authority over legislative design and program

implementation. With respect to EU sanctions programs

pending annual renewal, EU representatives previewed the

rollover of EU sanctions against Zimbabwe, which they

expected to include the de-listing of certain individuals and

entities. They also said that EU sanctions against Burma

would be renewed in April, but that it was too soon to

determine whether any modifications to that program would be

made. EU targeted sanctions are approaching a sliding scale

for due process standards and noFebru

renewed.

Q other EU Member States, Torres-Dulce informed the

delegation that the Spanish Presidency would remain in

listening mode on specific sanctions policies. He then

offered some general commentary, describing the impact of the

Lisbon Treaty in the sanctions domain. From April onward,

the EU will begin establishing various components of its

nascent diplomatic corps, the External Action Service

(“EAS”). The EAS should create synergies for certain

sectors, including sanctions. His personal view is that

Lisbon represents a push toward common European structures

and that the EAS will probably increase “structural

stability” on many External Relations fronts. Spain is

sensitive to the precedents that it is overseeing during its

Presidency tenure and is moving cautiously on all post-Lisbon

matters for which there is no EU case law.

BRUSSELS 00000219 002.2 OF 006

——————————————— —

LEGAL CHALLENGES TO UN AND EU TARGETED SANCTIONS

——————————————— —

¶4. (SBU) EU staffers explained that the European Court of

Justice (“ECJ”) would have new sanctions-related authorities

under the Lisbon Treaty. Although there is no established

case law for these areas, staffers highlighted that the Court

would have jurisdiction on all issues concerning the rights

of the individual. All targeted sanctions will therefore be

considered under the purview of the Court under the EU’s

revised treaty structure.

¶5. (C//NF) EU staffers said that UNSCR 1904 was “very

welcome” in the EU, but argued that more could potentially be

done to strengthen procedural safeguards in the UNSCR 1267

program. EU courts may demand that due process standards for

autonomous EU counterterrorism (i.e., UNSCR 1373)

designations apply to UNSCR 1267 or other sanctions programs

implemented in the European Union. Commission and Council

lawyers are currently asserting the opposite to the courts

(namely that internal EU/UNSCR 1373 standards should not

apply in all cases). But, absent formal jurisprudence, they

are only guardedly optimistic about the strength of their

arguments. Based on formal legal opinions and informal

feedback, staffers understand the courts to be saying, “what

does it cost you to enhance the rights of the individual,”

Commission and Council staffers warned.

¶6. (C//NF) EU sanctions are approaching a sliding scale for

due process standards and norms. Council and Commission

lawyers are particularly concerned that the ECJ will find

“manifest error” in (and seek to review information

underlying) listing decisions made by the UN Security

Council. EU lawyers are telling the EU courts to “back off”

of UN Security Council prerogatives and argue that the

intensity of EQcourt review should vary across the diverse

spectrum of sanctions programs.

¶7. (C//NF) According to Council Secretariat lawyer Richard

Szostak, “one area of high risk” involves cases under active

review in European courts for which tQ EU institutions have

little or no information supporting UN sanctions

designations. Szostak cited the Al Faqih case, which will

close for filings on February 25. He says that the UN has

not provided a statement of case and that the EU currently

has no other information with which to defend itself.

According to Szostak, the EU finds itself in similar

situations with respect to multiple cases concerning UN

designations (i.e., UN reference numbers: QI.A.181.04,

QE.M.120.05, QI.A.198.05, QI.K.214.06, QE.L.11.01, and

QE.L.118.05), all of which are being defended by good

lawyers. For Council and Commission lawyers, it is crucial

that UN statements of case include facts and not look like

hearsay. This is particularly true because the EU does not

re-process or add information to documents that it receives

from the UN (REF A/Para 9).

¶8. (C//NF) EU staffers explained the EU’s internal “review”

of UNSCR 1267 terrorism designations, as recently codified in

the implementing Council Regulation (EU) No 1286/2009 (REFS

A/Para 8, B/Paras 2-5). One Commission staffer asserted that

an EU-level review of Security Council designations is not

inconsistent with the UN Charter. He said that UN Member

States should be regularly updating information concerning

sanctions targets, noting that UNSCR 1822 had introduced

concepts and tools that the EU was simply putting into

practice. “UNSCR 1904 might not be enough, but all of the

tools are there,” he stated. He and other EU staffers agreed

that the combination of procedural innovations from UNSCR

1822 and UNSCR 1904 “should be enough” to prevent EU courts

from blocking implementation of targeted UN sanctions within

the European Union. (COMMENT: A final judgment in the “Kadi

II” case, currently before the lower court, should help

determine if such cautious optimism is warranted. END

COMMENT.)

BRUSSELS 00000219 003 OF 006

¶9. (C//NF) The possibility of administrative review applies

retroactively for anyone subject to EU counterterrorism

sanctions who requests it. Individuals and entities still

have only two months to challenge their initial listing

before the EU courts, but can submit “observations” and

request an administrative review of their designations at any

time. Internal EU review will incorporate those

observations, along with any information supplied by the UN

or EU Member States. The review will end when the EU

notifies the applicant of the reasons for its continued

designation. Staffers distinguished this “notification of

decision” from a point-by-point reply to observations offered

by the applicant. They also said that the results of EU

reviews would be presented to the UN for information purposes

only.

¶10. (C//NF) Despite the lack of clarity concerning other

sanctions programs, EU staffers are confident that their

autonomous terrorism sanctions (UNSCR 1373) regime remains on

solid legal footing. They cited the case of

Mujahideen-e-Khalq (MEK, known within the EU as “OMPI,” the

French acronym for the People’s Mujahedin of Iran), which

successfully challenged its designation as a terrorist

organization in the European Union (See also REF C). In its

proceedings, the lower court of the ECJ annulled OMPI’s

designation, but affirmed that internal EU due process

mechanisms were sound. Staffers noted that the EU had

drafted its own statement of case against OMPI and was thus

not completely reliant upon UN-derived information. (NOTE:

France is appealing before the high court the lower court’s

decision annulling the OMPI designation. END NOTE.)

————————————

DATA PRIVACY OVERSIGHT AND SANCTIONS

————————————

¶11. (C//NF) The European Data Protection Supervisor (“EDPS”)

has issued a legal opinion concerning the EU’s latest UN

terrorism sanctions (UNSCR 1267) implementing Regulation. In

his non-binding opinion, the EDPS asserts the authority to

access all personal data, including classified information,

processed by the EU institutions. With respect to targeted

sanctions, the EDPS states that a security clearance and

proper handling procedures for sensitive information may be

required so that he and the European Court of Justice may

“review whether a fair balance is struck between the need to

combat international terrorism and the protection of

fundamental rights.” EU staffers acknowledged that EDPS

oversight authority was not restricted by law but stressed

that the EU Council was not obliged to recognize his legal

opinions. (COMMENT: The European Parliament, which plans to

sue the Council and Commission to obtain a greater role in

targeted sanctions implementation, will likely seize upon the

EDPS legal opinion in its quest for stronger data privacy

protection standards. END COMMENT.)

———–

NORTH KOREA

———–

¶12. (C//NF) On DPRK sanctions, EU staffers said that efforts

were underway to facilitate EU implementation of measures for

which Member States retain competence, including: a

correspondence table for various customs authorities; a new

approach to dual-use items (we assume this to mean dual-use

Regulation 428/2009); a clause requiring Member States to

inform the Commission of steps taken to implement DPRK

sanctions; and certain non-binding UN provisions that the EU

has rendered binding within its own territory (e.g.,

restrictions on shipping, specialized training, and financial

services).

¶13. (C//NF) Given the possibility of court challenges to

DPRK sanctions measures, EU staffers expressed concern over

the lack of narrative summaries emanating from the UN.

BRUSSELS 00000219 004.2 OF 006

Statements of case against DPRK targets need not be very

specific, they suggested, since these are being designated

largely for their links to a state and jurisdiction. But “a

reason would be helpful” vis–vis EU courts, one Council

lawyer explained, even if these do not require due process as

practiced in the counterterrorism context.

¶14. (C//NF) Commission sanctions staffer Stephane Chardon

indicated that provisions for enhanced vigilance in the

financial sector were drawn from the EU’s latest anti-money

laundering (“AML/CFT”) Directive. Although DPRK sanctions

and proliferation finance issues differ somewhat from the

vulnerabilities addressed by AML/CFT Directives, the

Commission is attempting to “transpose” other areas of its

technical expertise into sanctions mechanisms. According to

Chardon, some individual Member States have given further

guidance to their financial institutions with respect to DPRK

sanctions implementation. (COMMENT: The EU continues to

resist issuing an EU-wide advisory, however. END COMMENT.)

——–

ZIMBABWE

——–

¶15. (C//NF) Spain indicated that a new EU Council Decision

(FKA Common Position) on Zimbabwe would be finalized over the

following days and described forthcoming changes to the EU’s

sanctions program. (NOTE: The Common Position underlying

that program was due to expire February 20, prompting the EU

to review/renew existing measures. See REF D for information

about the eventual rollover. END NOTE.) After intense

debate and compromise, Perm Rep officials from the EU

Council’s Africa Working Group (COAFR) have agreed to remove

six (6) individuals and nine (9) entities from the EU’s

designation list. The individuals include one person who has

left the GoZ, four who are now deceased, and one, Thamer Al

Shanfari, whom the EU has assessed no longer meets

designation criteria. Eight of the entities are Zimbabwean

parastatals that were designated by the EU on January 27,

2009, but which have been judged, based on reporting from EU

Member State missions in Harare, to be under control of the

Zimbabwean finance ministry and thus de-linked from ZANU-PF.

Apart from these de-listings, all EU measures would be

renewed for twelve months, despite a strong preference for a

six-month rollover among some Member States.

¶16. (C//NF) The U.S. delegation informed EU counterparts

that parastatal designations were assessed by the USG to be a

significant leverage point vis-a-vis Robert Mugabe and

ZANU-PF, and cautioned that the de-listing of these entities

would most likely diminish EU leverage with respect to the

Zimbabwean regime.

¶17. (C//NF) U.S. officials also emphasized the need for

transatlantic political unity on Zimbabwe, in particular

since that country is not subject to UN sanctions. EU

staffers and the Spanish Presidency then previewed the draft

public “conclusions” that would accompany the new Council

Decision. These would state firstly that sanctions were

still appropriate and were being renewed due to insufficient

political progress in Zimbabwe. Staffers were adamant that

select de-liQings did not refute this statement and that

signs of dynamism in the EU program would encourage and

empower the MDC. They nonetheless agreed to avoid public

statements that could undermine USG political messaging. The

de-listings would thus be treated as a group and in generic

terms in secondary “conclusions.”

—–

BURMA

—–

¶18. (C//NF) EU sanctions against Burma are due to expire on

April 30. Spain had not yet begun work on a renewal Council

Decision, nor had it received draft text from EU Member

States or institutions. None of our interlocutors had a

BRUSSELS 00000219 005.2 OF 006

clear sense of the political direction among Member States,

but all agreed that major changes to the EU program were

unlikely in the immediate future. EU sanctions against Burma

are comparatively complex, and new measures were instituted

as recently as August 2009. Spain expects to initiate the

rollover process with a relatively standard 2-month lead time

in case of unforeseen complications during internal

negotiations. An anticipated EU official visit to Burma may

not happen before the end of April and should not conflict

with EU sanctions, by which Member States have suspended all

high-level bilateral engagement with the GoB. The EU visit

will most likely take place at the Director level.

¶19. (C//NF) EU staffers were dismissive when pressed about

their and Member States’ implementation of existing

prohibitions on certain Burmese exports. “If Thailand won’t

act, it’s hard to do anything,” one staffer lamented.

Another acknowledged that Burma engaged in only a small

percentage of its total trade with the U.S. and EU; Western

import restrictions could therefore be only minimally

effective at best.

——————————————— —–

ERITREA, SOMALIA, AND MORE ON DUE PROCESS VARIANCE

——————————————— —–

¶20. (C//NF) Council Secretariat sanctions staffer Francesco

Fini called the due process elements of UNSCR 1907,

concerning Eritrea, “weak” when compared to other sanctions

programs. He then asked if this was because the UN was

targeting a political regime. Fini sees a pattern whereby

different standards/norms of due process appear, depending on

the focus of a sanctions program. In his view, programs

focused on non-state actors and individuals unaffiliated with

political regimes, such as DRC sanctions, tend to provide

robust due process elements. Conversely, programs targeting

state actors and individual political elites offer few

procedural safeguards. While these trends may seem

coincidental, they are important for EU institutions, which

are increasingly wary of court challenges. “We will want to

know, what is the scope of due process to apply” in the

context of Eritrea sanctions, Fini informed the delegation.

¶21. (C//NF) EU staffers were keen to know when designations

would be finalized in the UN/Somalia sanctions committee.

The EU has not yet passed a Regulation to implement its

Somalia sanctions Common Position (2009/138/CFSP of 16

February 2009) and is therefore unprepared for a roll-out of

UN measures. Staffers expect the Regulation, a strict

implementation of UNSCR 1844, to be ready by the end of

February.

¶22. (C//NF) Fini again raised the due process issue with

respect to targeted Somalia sanctions. He noted that the

procedural safeguards found in UNSCR 1844 came more or less

directly from UNSCR 1822 concerning Al-Qaeda and the Taliban.

Fini asked iQ3QEce’Ksthe EDPS states that a security clearance and

proper handling procedures for sensitive information may be

required so that he and the European Court of Justice may

“review whether a fair balance is struck between the need to

combat international terrorism and the protection of

fundamental rights.” EU staffers acknowledged that EDPS

oversight authority was not restricted by law but stressed

that the EU Council was not obliged to recognize his legal

opinions. (COMMENT: The European Parliament, which plans to

sue the Council and Commission to obtain a greater role in

targeted sanctions implementation, will likely seize upon the

EDPS legal opinion in its quest for stronger data privacy

protection standards. END COMMENT.)

———–

NORTH KOREA

———–

¶12. (C//NF) On DPRK sanctions, EU staffers said that efforts

were underway to facilitate EU implementation of measures for

which Member States retain competence, including: a

correspondence table for various customs authorities; a new

approach to dual-use items (we assume this to mean dual-use

Regulation 428/2009); a clause requiring Member States to

inform the Commission of steps taken to implement DPRK

sanctions; and certain non-binding UN provisions that the EU

has rendered binding within its own territory (e.g.,

restrictions on shipping, specialized training, and financial

services).

¶13. (C//NF) Given the possibility of court challenges to

DPRK sanctions measures, EU staffers expressed concern over

the lack of narrative summaries emanating from the UN.

BRUSSELS 00000219 006 OF 006

(23 VIEWS)