The Directorate of Defense Trade Controls (“DDTC”) imposed an arms embargo today on Eritrea. The embargo is the direct result of a State Department determination, made on May 14 under section 40A of the Arms Export Control Act, 22 U.S.C. 2781,that Eritrea was not cooperating fully with United States antiterrorism efforts. The statute makes an arms embargo mandatory after such a finding. According to the Federal Register notice announcing the arms embargo, the embargo becomes effective on October 1, 2008.

We’ve been anticipating this action for quite some time, going back to August 17 of last year when we posted that the State Department was threatening to put Eritrea on the list of state sponsors of terrorism. The basis asserted at that time was a U.N. report that found that “huge quantities of arms” have been provided, “by and through Eritrea,” to Al-Qaeda linked groups in Somalia These arms included “an unknown number of surface-to-air missiles, suicide belts, and explosives with timers and detonators.” The State Department never carried through with that threat, which would have had broader ramifications, and instead proceeded with a section 40A determination.

The embargo announced today is largely symbolic. In 2007, there were, not surprisingly, no foreign military sales to Eritrea. Nor were there any direct commercial sales of arms from the United States to Eritrea according to the State Department’s Section 655 report for the same period.

A federal district court in Washington, D.C., issued an opinion* last Friday awarding significant compensatory and punitive damages in a law suit against Syria brought by relatives of Jack Armstrong and Jack Hensley. Armstrong and Hensley were two U.S. civilian engineers who were kidnapped and beheaded in Iraq in 2004 by al-Tawhid wal-Jihad (“al-Qaeda in Iraq”). This incident gained worldwide notoriety after the terrorists released a gruesome video of the beheadings on the Internet.

Normally the sovereign immunity doctrine prohibits claims in U.S. courts against foreign nations. The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., however, permits such actions arising out of acts of terrorism where the foreign nation through official action has provided material support for extrajudicial killings, where the foreign nation was a designated state sponsor of terrorism at the time, and where the victim was a U.S. national. The court found that all these conditions were met with respect to Syria and the two beheadings at issue by al-Qaeda in Iraq. The court entered judgment against Syria in the amount of $412,909,587. This total award included separate awards for loss of income from the two decedents, pain and suffering by the two decedents, solatium to the immediate family members, and punitive damages. The award for punitive damages made up $300,000,000 of the total award.

The issue after such an award is how the plaintiffs might be able to collect these sums. Obviously the chance of this award being enforced in a Syrian court is roughly equal to the chance of winning the same amount in the lottery. Instead, these sums can only be recovered, as a practical matter, by judicial execution on Syrian assets in the United States. As readers of this blog will know, all Syrian assets in the United States are blocked. (And I’ll bet you were wondering what the export law connection would be for this case.)

Enter the Terrorism Risk Insurance Act of 2002, which permits execution against blocked assets. Section 201 of that act permits execution of blocked assets to satisfy judgments arising from acts of terrorism “to the extent of any compensatory damages for which such terrorist party has been adjudged liable.” And that’s the rub: only “compensatory” damages are included which means that punitive damages, which constitute the bulk of the award in the Armstrong and Hensley case, can’t be obtained from the blocked assets. Of course, the plaintiffs could apply for a license from OFAC or wait for the assets to be unblocked.

UPDATE: Although Executive Order 13399 states that the assets of entities in Syria engaged in the material support of terrorism are blocked, no specific order blocking the assets of the Syrian government has yet been issued, so the TRIA is not strictly applicable here until such time as those assets are specifically blocked. When writing this post I had momentarily confounded the comprehensive export ban with blocking of governmental assets. Thanks to Ex-OFAC in the comments for pointing this out.

*Francis Gates v. Syrian Arab Republic, 2008 WL 4367284 (D.D.C. 2008)(Westlaw subscription required). Slip opinion also available without Westlaw by clicking here.

A court in Bangkok this week denied a U.S. request to extradite Jamshid Ghassemi, an Iranian national. Ghassemi had been indicted by a federal grand jury in San Diego in 2006 in connection with an alleged attempt by Ghassemi to purchase and export 12 accelerometers from Honeywell International, Inc. to Iran.

The Thai court decision is not public, but the AP obtained a defense filing which asserted three arguments against extradition. First, the defense argued that the extradition papers were not timely filed. Second, it was asserted that Ghassemi would be tortured in the United States if extradited. Finally, the defense pleading relied on the “military offense” exception in the extradition treaty between the United States and Thailand.

It is, of course, somewhat speculative, but it seems likely that the court relied on the “military offense” exception rather than the other two arguments. Under Article 7 of the Extradition Treaty, a request is still timely if the statute of limitations hasn’t expired, which in this case it had not. The torture argument has little factual basis.

But reliance on the military offense exception, set forth in Article 3 of the treaty, seems tenuous as well. The defense argument in support of the exemption was that Ghassemi was a military officer and that he attempted to purchase the accelerometers under orders from his immediate military superior. The military offense exception is widely thought to refer to military offenses such as desertion and mutiny, offenses that are outside the ordinary scope of criminal laws. See, for example, In the Matter of the Requested Extradition of Carlos Guillermo Suarez-Mason, 649 F. Supp. 676 (N.D. Cal. 1988). The Italian Extradition Treaty, Art. V, §3, 35 U.S.T. 3029 (1984), provides a more detailed definition of military offenses as “offenses under military law which are not offenses under ordinary criminal law.” Violations of export laws do not fit readily within such a definition of a “military offense.”

. . . the United Arab Emirates. With the publication today by the Bureau of Industry and Security (“BIS”) of the additions to the Entity List announced on Wednesday, the UAE moves into first place in terms of the single country with the most entries on the Entity List. The tiny emirate, just a short boat-ride from Iran, now has 36 entries on the Entity List after today’s addition of 34 more companies and individuals.

By today’s action BIS added 108 entities to the list, 33 of which were already on General Order No. 3, Because of the transfer of those entities from General Order No. 3 to the Entity List, that general order is now being repealed and removed from Supplement No. 1 to Part 736 of the Export Administration Regulations. Entities that were previously listed in General Order No. 3 are designated with asterisks.

Entities from a total of thirteen countries were named to the Entity List. Those countries were Canada (2), PRC (3), Egypt (3), Germany (4), Hong Kong (19), Iran (25), Kuwait (2), Lebanon (2), Malaysia (14), Singapore (3), South Korea (1), Syria (3), UAE (34). (Seven entities were located in two countries, which accounts for the total of 115 new entries shown in the preceding list.)

A license is required for all exports to, or involving, any individual or country on the Entity List. No license exceptions are available for such exports, and BIS will apply a policy of denial to license requests.

As of time this entry was posted, BIS had not yet updated the “List to Check” portion of its website to reflect the new additions.

The defense trade cooperation treaties signed by the United States with the United Kingdom and Australia may have just become victims of election year politics. The Senate Foreign Relations Committee announced today, according to this report in Defense News, that further consideration of Senate ratification of these treaties would be deferred until next year, i.e., until after the November elections. This could entail even further delays if the Democrats take the White House and decide to rewrite the treaty in order to put their own stamp on, and take credit for, the treaty.

The current delay seems to be prompted by the Senate panel’s concern that the State Department would need to amend the International Traffic in Arms Regulations in order for the treaty to be enforceable. Although the Foreign Relations Committee had repeatedly asked for such amendments, they had not been forthcoming, and apparently the committee became frustrated with the last response it received from State on September 15 and which the committee deemed incomplete.

According to the Defense News article, the members of the Foreign Relations Committee aren’t the only ones expressing frustration — U.K. officials are reportedly peeved as well:

In Britain, there has been mounting frustration that the measures have stalled, and the delay infuriated U.K. officials who were counting on securing approval before the end of the Bush administration.

“All the U.K. government wants is clarity of message from the U.S. government on what’s happened and whether they are motivated to get this ratified as soon as their processes are completed,” said one British official. “Right now, we’re getting all sorts of messages from each of the three strands of government.”

The Australians, being somewhat more patient than their colonial forebears, are reported to have put another prawn on the barbie, cracked open another tinny of Foster’s, and gone back to watching a game of footy on the telly. (In fact, I imagine that the Australians aren’t pleased with this development either, but I couldn’t find any reported reaction from the Australian government.)