OFAC Places Two Mali Nationals, One Mali Entity on SDN List

Last Friday, the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) placed two individuals, Hamad El Khairy and Ahmed El Tilemsi, from Mali and one entity in Mali, Movement for Unity and Jihad in West Africa (MUJWA) on the Specially Designated Nationals and Blocked Persons List (“SDN List”) under the authority of Executive Order (E.O) 13224. The targeting of these parties was actually directed by the U.S. Department of State, who also have authority to utilize sanctions under E.O. 13224. E.O. 13224 was issued shortly after September 11, 2001, in an effort to give the U.S. additional authorities under which to apply economic sanctions to parties engaged in international terrorism and those providing material support to those engaged in such activities. As a result of these designations, U.S. persons can no longer engage in any transactions with the designated parties and any assets under U.S. jurisdiction belonging to those parties are to be blocked.

In addition to their E.O. 13224 designation, MUJWA is also listed by the United Nations 1267/1989 al-Qa’ida Sanctions Committee. As part of their UN listing all member states are ordered to implement assets freezes, travel bans, and arms embargoes against MUJWA. When effectively implemented UN sanctions can be extremely effective, much more so than unilateral sanctions such as the one imposed by the U.S. In addition, UN sanctions may procedurally be more sound than the U.S. sanctions regime, as those designated under UN sanctions have recourse to challenge their designation through submission of the case to an independent Ombudsman who reviews the cases to determine whether or not the designation was made in error or whether the circumstances had changed to such a degree that the designation was no longer warranted. At a meeting last week in New York, it was confirmed that in the overwhelmingly majority of cases reviewed by the Ombudsman that the recommendation was ultimately made to remove the designated party from the sanctions list.

OFAC also allows for reconsideration of the designations made to the Specially Designated Nationals and Blocked Persons List (SDN List), whether they be made by Treasury or State. However, in that process there is no independent arbiter to review the designation, the review is often carried out by the very same officials that placed the party on the list in the first place. In addition, OFAC is under no mandated timeline to process the reconsideration, and I personally have worked on cases where the reconsideration has been pending for nearly eight years. Finally, OFAC will also turn over very little, if any evidence, serving as the basis of the designation, opting instead to engage in back and forth communications with the designated party where OFAC requests additional information and the designated party supplies such information. Once OFAC is satisfied with the information it has received it makes its decision as to whether to rescind the designation.

Despite the problems with the OFAC SDN reconsideration process, parties are frequently removed from the list. As such, any party seeking to have such a designation reconsidered should engage with OFAC as soon as possible and begin the steps towards removing their designation.

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@ferrariassociatespc.com.