Archive for April, 2010


Apr

30

A Cosmetic Solution


Posted by at 11:49 am on April 30, 2010
Category: General

Lysistrata (Safe for Work)From the London Evening Standard we have this proposal for new sanctions on Iran to deter that country’s nuclear ambitions

[A]n Israeli journalist has come up with an ingenious idea: a boycott on the export of cosmetics and toiletries to Iran. Apparently, Iran is the world’s seventh largest consumer of beauty products, spending no less than $2.1 billion (£1.4 billion) a year on creams, lotions, shampoos, conditioner, lipstick and mascara. Iran alone accounts for a third of the total sales in the Middle East — and the vast majority of them are imported.

The argument put forward by Zvi Barel in Haaretz is that, threatened with the loss of their precious supplies, Iranian women would put pressure on their menfolk to stop the development of the bomb.

Clearly Mr. Barel clearly has Lysistrata in mind. What next? A proposal to consult with the oracle of Delphi to divine a plan to defeat the Iranian navy in the Straits of Salamis?

I hope Mr. Barel has his misogynistic tongue planted firmly in his cheek when proposing that depriving Iranian women of lipstick would be an effective way to influence nuclear policy in Iran. It all sounds more like I Love Lucy than Lysistrata.

Seriously, if we’ve learned anything about economic sanctions, it’s that targeting the general (and innocent) populace of a country never succeeds in reforming that country’s foreign policies or nuclear ambitions.

[Thanks to my colleague in London, Anita Esslinger, for pointing out the blurb in the Evening Standard]

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Apr

28

The ICE Repo Man Cometh


Posted by at 6:53 pm on April 28, 2010
Category: BISIran Sanctions

Ice AgentA court battle raging between Italian company Tiber Aviation s.r.l. and Bell Helicopter Textron Inc. turns on whether Tiber was actually intending to ship a helicopter to Iran or whether Bell told that story to a special agent of the Bureau of Industry and Security (“BIS”) in order to secure the government’s help in repossessing the helicopter. The latest chapter in the saga occurred earlier this month when ICE agents formally seized the helicopter in question.

According to a complaint filed by Tiber against Bell in a federal court in Texas, Tiber purchased three helicopters from Mexico-based Helicopteros y Vechiculos Aereas Nacionales (“Helivan”) for $22 million. Two of the helicopters were shipped directly from Mexico to Italy, while the third was sent to the U.S. to be taken apart and shipped to Italy after Tiber discovered that this was a cheaper method of getting the helicopter to Italy. Although Helivan purported to sell the helicopters with clear title, Bell asserts that they were financed under a lease agreement to Helivan and that Bell still had title to the helicopters, including the one still in Texas. According to Tiber, that interest was not properly recorded by Bell.

Tiber alleges that rather than seeking to exercise its claimed interest as owner of the helicopter, Bell took a more novel approach to repossessing the aircraft — namely, that Bell went to the field office of BIS in Dallas and alleged that Tiber was planning to ship the helicopters to Iran. Shortly therafter Bell and a BIS special agent went to the facility of United Rotocraft, where the helicopter was awaiting disassembly, and told United Rotocraft that the helicopter was being seized, whereupon they all got into the helicopter and flew it off to a hangar in Arlington, Texas. For its part, Tiber denies that it intended to ship the helicopter to Iran and, resorting to some colorful language in the complaint, compares Bell to a schoolyard bully stealing Tiber’s lunch money. (Since the helicopter is worth around $7-8 million, that was obviously money for a pretty big lunch.)

Bell, of course, denies in the answer and counterclaim that it filed in the Texas court, that it was trying to steal Tiber’s helicopter or even Tiber’s lunch money claiming, first, that it had validly recorded its interest in the helicopter and therefore still owned it. But Bell also admits that it went to BIS to allege that the helicopter was destined for Iran, although once it spoke with BIS it learned that the helicopter was already subject to an ongoing investigation by BIS. Bell says that it learned that the helicopter was destined for Iran from an unidentifed source that informed Bell that a Helivan mechanic was in Iran providing training and maintenance on the other two helicopters.

Far be it from me to speculate as to who is telling the truth here. The only thing I can say with certainty here is that $8 million dollars would buy several tons of school cafeteria mac and cheese.

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Apr

27

U.S. Seeks to Extradite German for Iran Shipments


Posted by at 7:45 pm on April 27, 2010
Category: Criminal PenaltiesIran Sanctions

Three FlagsA recent article in today’s international edition of Der Spiegel reports on an interesting analogue, in Germany, to the Majid Kakavand case in France. Just as the court in France seems likely to deny the request by the U.S. for extradition, the German court has already refused a U.S. request to arrest a German citizen for allegedly illegal shipments from Germany to Iran by way of Malaysia.

U.S. investigators have been trying to get Germany to arrest and extradite a German citizen who allegedly belongs to a network smuggling U.S. electronic components to Iran to be used in roadside bombs in Iraq and Afghanistan. But a German court is blocking the move.

The case has to do with temperature and humidity gauges as well as valves that regulate water flow – the kind of things you can pick up in any sanitation-equipment store.

What makes it unusual is that it also has to do with a request by American law-enforcement officials for their German counterparts to search through the office of a man they have in their sights and confiscate, in particular, “electronic data, written correspondence, invoices and lists of addresses.”

What’s more, these same officials would also like the Germans to extradite the suspect – a German citizen who, for legal reasons, can only be identified as “N.” – so he can face criminal charges in the U.S. As far as the Americans are concerned, the ethnic Iranian businessman from the northern German city of Kiel is an enemy of the state who deserves to be put in prison for up to five years

Well, even if Der Spiegel can’t reveal who “N.” is, we can. He’s Djamshid Nezhad. In September 2008, Mr. Nezhad was made a denied party (as part of the second wave of Mayrow General Trading designations) and was named as a defendant in this indictment in a federal court in Florida.

N. continues to plead his innocence and claims that this has all been a big mistake. But the U.S. is still investigating him. Last year, American officials unsuccessfully petitioned their German counterparts to detain N. Their hopes were stymied when an upper district court for the northern state of Schleswig-Holstein, which is home to Kiel, blocked the request, saying it couldn’t find any factual basis that justified launching a criminal inquiry into N.’s deliveries. The court based its decision on the fact that both German and European law permits the exportation of the components he traded. “The subject is accused of doing something that does not constitute a criminal offense in Germany,” the court found.

Still, the court’s views aren’t wholeheartedly shared by German customs officials, who believe the parts N. ordered from the U.S. could certainly be classified as “dual-use,” thereby rendering their exportation illegal. “One should have applied for an export permit in this country depending on the specification of the components,” said one customs investigator.

What’s interesting here is that, as in the Kakavand case, the extradition request will depend on whether or not the items are on Germany’s list of dual-use items which, of course, is derived from the Wassenaar list, also implement by the U.S. in the Commerce Control List of dual-use items requiring export license. Note also that the U.S. is not claiming that Nezhad’s valves and gauges were used in IEDs shipped by Iran to Iraq. It’s likely that they didn’t. Instead, the government’s interest is based solely on the claim that he is part of a network of exporters, some of whom exported items that were used in the detonation mechanisms for the IEDs.

I’m increasingly of the opinion that the United States is not really expecting to win these cases as much as it is trying to send a message to potential exporters to Iran. The message is that the U.S. will do whatever it can to make your life difficult if you try to ship things from the U.S. to Iran. And if you do ship things to Iran, you might want to limit your international travel plans. Take the family from Germany to Disneyland? Not in this lifetime.

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Apr

24

The Places You’d Rather Not Be


Posted by at 8:35 am on April 24, 2010
Category: Sudan

Khartoum Hilton
ABOVE: Khartoum Hilton


Yesterday, the Office of Foreign Assets Control (“OFAC”) released its monthly rundown of recent civil penalties. This month’s winner of the coveted highest penalty award goes to Hilton International, a subsidiary of Hilton Worldwide, which agreed to pay $735,407 to OFAC in connection with the chain’s operation of two Hilton hotels in Sudan between June 2002 and February 2006. The alleged violation was self-disclosed by Hilton International in connection with due diligence conducted as part of Hilton’s acquisition, on February 23, 2006, of Hilton Group plc, a British company which, prior to the acquisition, owned and operated all Hilton hotels and resorts outside the United States.

After the disclosure, OFAC alleged that Hilton International had committed 142 violations of the Sudanese Sanctions Regulations. Because Hilton waived the 5-year statute of limitations, the applicable penalty was $11,000 per violation (as opposed to the higher penalty of $250,000 per violation which became effective on October 16, 2007). This meant a maximum penalty of $1,562,000, which OFAC agreed to reduce by slightly more than 50 percent.

The settlement here is about as smelly as, allegedly, the Khartoum Hilton itself. (More, later in this post, on these allegations in unfavorable reviews of the hotel.)

First, during the time period of the alleged violations, the Sudanese hotels were owned and operated by Hilton Group plc, a British company and, more importantly, not a “U.S. person” as defined by the section 538.515 of the Sudanese Sanctions Regulations. Only U.S. persons are subject to the prohibitions of the Sudanese Sanctions Regulations, most notably the prohibition of section 538.205 which forbids the export of goods, technology or services by U.S. persons to Sudan. If Hilton continued to operate the hotels in Sudan after the acquisition in February 2006 of Hilton Group plc, then section 538.205 would apply. But that’s not what is alleged here. There must be something else going on here that isn’t described in the OFAC release to explain why Hilton would agree to such a large fine in this situation.

Even if a violation occurred because of the operation of the hotels by Hilton Group plc, one can only wonder as to how OFAC concocted 142 violations exactly. Since the charges cover a period of approximately three years and 8 months, that’s one violation for each 6.4 days of operation of each hotel. Where did that come from? Why not find a separate violation for each month or year of operation? Heck, why not go for broke and allege that each minute of operation was a separate violation? Although the hotels were alleged to be miserable flea-traps, it’s doubtful that the hotels only had 142 customers or nights of occupancy during the relevant period, so that can’t be the basis for an allegation of exactly 142 violations. Given that the International Emergency Economic Powers Act, which establishes the applicable penalty, doesn’t provide guidance on how to calculate the number of violations here, it seems hard to justify an allegation of any more than two violations, one for each of the Hilton Hotels in Sudan.

On a lighter note, while researching this post I ran across some customer reviews of the Khartoum Hilton which were more than a little harsh and described the hotel as, variously, mosquito-infested, dirty, shabby, run-down, smelly and “grooty,” whatever that is. One highly amusing favorable review could only have been left by the hotel itself:

Hilton Hotel Khartoum is one of the best hotel’s location some gests can get board according to the government regulation and the Legislations , this hotel is good for hunny moons quiet better visit Sudan between Dec-March . for better outdoor activities clean . people are super nice limeted female workers due to culture but guys deliver outstanding services . all nice and Ibelieve its getting better .no hilton has location better than that arround the globe

I don’t know about you, but I’m packing my bags for Khartoum and checking into the Hilton for an extended stay.

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Apr

22

(Ran)Somalia Payments and OFAC


Posted by at 7:57 pm on April 22, 2010
Category: OFACPiracy on the High SeasSomalia Sanctions

SomaliaLast week I posted on the new Somalia “smart” sanctions and noted that the concerns by the maritime industry that the new sanctions would prohibit ransom payments were unfounded. The industry was concerned that language in the executive order, which permitted designations of persons engaged in piracy off the coast of Somalia, would prohibit payments of ransoms to pirates.

Most marine hull insurance covers piracy as does Institute Cargo Clause A. Even under Cargo Clauses B and C, insurers may still be required to contribute to ransom payments under the general average rule. Accordingly, because shippers and vessel owners have insurance coverage paid for and available to pay the ransom, they are anxious not to lose that benefit (or their crews or goods) as a result of any interference by OFAC with ransom payments.

I indicated that these concerns were unfounded because the executive order forbids payments to parties already designated for piratical activities. If a pirate demanding ransom hadn’t been designated yet, nothing in the order would forbid payment of ransom to that pirate or pirate crew. (Of course, it is a little surrealistic to imagine that a vessel owner would demand the pirate’s name and run it against the SDN list before making a ransom payment.)

On April 16, during a meeting with maritime industry officials, a senior government official confirmed my position, namely, that only payments to designated individuals were prohibited by the order. Nothing in the order prohibited ransom payments to pirates in general.

But the bad news is that the official indicated that vessel owners should consult with OFAC before making any payment where the order “might” apply. Because the pirates demanding ransom presumably don’t give their names (or even aliases such as Blackbeard or the like), the order “might” apply to any proposed payment of ransom to pirates.

The utility of meeting with OFAC in such cases certainly doesn’t outweigh the increased danger to crew lives caused by the consequent delay. This is particularly true given that OFAC is unlikely to agree that it won’t pursue criminal or civil penalties should one of the pirates turn out to be a designated individual.

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