The direct or indirect supply, sale or transfer of arms and related material of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned to Somalia by nationals of Member States or from the territories of Member States shall be prohibited whether originating or not in their territories.
Council Decision 2010/231/CFSP of 26 April 2010 concerning restrictive measures against Somalia and repealing Common Position 2009/138/CFSP
Council Decision 2010/231/CFSP of 26 April 2010 concerning restrictive measures against Somalia and repealing Common Position 2009/138/CFSP
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 29 thereof,
Whereas:
On 10 December 2002, the Council adopted Common Position 2002/960/CFSP concerning restrictive measures against Somalia(1) following United Nations Security Council Resolutions (UNSCR) 733 (1992), 1356 (2001) and 1425 (2002) relating to an arms embargo against Somalia.
On 16 February 2009, the Council adopted Common Position 2009/138/CFSP concerning restrictive measures against Somalia and repealing Common Position 2002/960/CFSP(2), implementing UNSCR 1844 (2008) which introduced restrictive measures against those who seek to prevent or block a peaceful political process, or those who threaten the Transitional Federal Institutions (TFIs) of Somalia or the African Union Mission in Somalia (AMISOM) by force, or take action that undermines stability in Somalia or in the region.
On 1 March 2010, the Council adopted Council Decision 2010/126/CFSP amending Common Position 2009/138/CFSP(3) and implementing UNSCR 1907 (2009) which called upon all States to inspect, in accordance with their national authorities and legislation and consistent with international law, all cargoes to and from Somalia, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items whose supply, sale, transfer or export is prohibited under the general and complete arms embargo to Somalia established pursuant to paragraph 5 of UNSCR 733 (1992) and elaborated and amended by subsequent resolutions.
On 19 March 2010, the United Nations Security Council (hereinafter referred to as the ‘Security Council’) adopted UNSCR 1916 (2010) which, inter alia, extended the mandate of the monitoring group referred to in paragraph 3 of UNSCR 1558 (2004) and decided to ease some restrictions and obligations under the sanctions regime to enable the delivery of supplies and technical assistance by international, regional and sub-regional organisations and to ensure the timely delivery of urgently needed humanitarian assistance by the United Nations (UN).
On 12 April 2010, the Sanctions Committee established by paragraph 11 of UNSCR 751 (1992) concerning Somalia (hereinafter referred to as the ‘Sanctions Committee’) adopted the list of persons and entities which are subject to restrictive measures.
For the sake of clarity, the measures imposed by Common Position 2009/138/CFSP as amended by Council Decision 2010/126/CFSP and the exemptions provided for in UNSCR 1916 (2010) should be integrated into a single legal instrument.
Common Position 2009/138/CFSP should therefore be repealed.
This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union(4) and notably the right to an effective remedy and to a fair trial, the right to property and the right to the protection of personal data. This Decision should be applied in accordance with those rights and principles.
This Decision also fully respects the obligations of Member States under the Charter of the United Nations and the legally binding nature of Security Council Resolutions.
The procedure for amending the Annex I to this Decision should include providing to designated persons and entities the reasons for their listing as transmitted by the Sanctions Committee, so as to give them an opportunity to present observations. Where observations are submitted or where substantial new evidence is presented, the Council should review its decision in the light of those observations and inform the person or entity concerned accordingly.
Further action by the Union is needed in order to implement certain measures,
HAS ADOPTED THIS DECISION:
Article 1
1.
2.
The direct or indirect supply to Somalia of technical advice, financial and other assistance and training related to military activities, including in particular technical training and assistance related to the provision, manufacture, maintenance or use of the items mentioned in paragraph 1, by nationals of Member States or from the territories of the Member States, shall be prohibited.
3.
Paragraphs 1 and 2 shall not apply to:
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities, intended solely for the support of or use by United Nations personnel, including the United Nations Assistance Mission in Somalia (UNSOM);
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities, intended solely for the support of or use by the African Union Mission in Somalia (AMISOM);
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance intended solely for the support of, or use by, AMISOM’s strategic partners, operating solely under the African Union Strategic Concept of 5 January 2012 (or subsequent AU strategic concepts), and in cooperation and coordination with AMISOM;
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities intended solely for the support of or use by the European Union Training Mission (EUTM) in Somalia;
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance intended solely for the use of Member States or international, regional and subregional organisations undertaking measures to suppress acts of piracy and armed robbery at sea off the coast of Somalia, upon the request of the Federal Government of Somalia for which it has notified the Secretary-General and provided that any measures undertaken shall be consistent with applicable international humanitarian and human rights law;
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the supply, sale or transfer of arms and related material of all types and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities intended solely for the development of the Security Forces of the Federal Government of Somalia, to provide security for the Somali people, except in relation to deliveries of the items set out in Annex II, if a notification to the Sanctions Committee has been made as set out in paragraph 4 of this Article;
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the supply, sale or transfer of arms and related material of all types set out in Annex II to the Federal Government of Somalia as approved in advance by the Sanctions Committee on a case-by-case basis, as set out in paragraph 4a of this Article;
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the supply, sale or transfer of protective clothing, including flak jackets and military helmets, temporarily exported to Somalia by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel for their personal use only;
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the supply, sale or transfer of non-lethal military equipment intended solely for humanitarian or protective use, notified to the Sanctions Committee five days in advance, and for its information only, by the supplying State, international, regional or subregional organisation;
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the supply, sale or transfer of arms and related material of all types, and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities by Member States or international, regional and subregional organisations intended solely for the purposes of helping develop Somali security sector institutions, in the absence of a negative decision by the Committee within five working days of receiving a notification of any such assistance from the supplying Member State, international, regional or subregional organisation.
4.
The Federal Government of Somalia has the primary responsibility to notify the Sanctions Committee in advance of any deliveries of weapons, ammunition or military equipment or the provision of advice, assistance or training to its Security Forces, as set out under point (f) of paragraph 3. Alternatively, Member States delivering assistance may notify the Sanctions Committee at least five days in advance, in consultation with the Federal Government of Somalia, in accordance with paragraph 3 and 4 of UNSCR 2142 (2014). Where a Member State chooses to notify the Sanctions Committee, such notification shall include details of the manufacturer and supplier of the arms and ammunition, a description of the arms and ammunition including the type, calibre and quantity, the proposed date and place of delivery, and all relevant information concerning the intended destination unit in the Somali National Security Forces, or the intended place of storage. A Member State supplying arms or ammunition may, in cooperation with the Federal Government of Somalia, no later than 30 days after the delivery of such items, submit to the Sanctions Committee a written confirmation of the completion of the delivery, including the serial numbers for the arms and ammunition delivered, shipping information, bill of lading, cargo manifests or packing lists, and the specific place of storage.
4a.
The Federal Government of Somalia has the primary responsibility to request advance approval by the Sanctions Committee for any supplies of items set out in Annex II, as set out in point (g) of paragraph 3. In the alternative, Member States may request advance approval by the Sanctions Committee, in consultation with the Federal Government of Somalia, in accordance with paragraph 3 of UNSCR 2142 (2014).
5.
It shall be prohibited to supply, resale, transfer, or make available for use any weapons or military equipment, sold or supplied solely for the development of the Security Forces of the Federal Government of Somalia to any individual or entity not in the service of the Security Forces of the Federal Government of Somalia.
Article 1a
1.
The direct or indirect import, purchase or transport of charcoal from Somalia, whether or not such charcoal originated in Somalia, shall be prohibited.
The Union shall take the necessary measures in order to determine the relevant items to be covered by this provision.
2.
It shall be prohibited to provide, directly or indirectly, financing or financial assistance, as well as insurance and reinsurance, related to the import, purchase or transport of charcoal from Somalia.
Article 1b
Member States shall exercise vigilance over the direct or indirect supply, sale or transfer to Somalia of items not subject to the measures set out in Article 1(1) and over the direct or indirect supply to Somalia of technical advice, financial and other assistance and training related to military activities related to those items.
Article 2
Restrictive measures as provided for in Articles 3, 5(1) and 6(1) and (2) shall be imposed against persons and entities designated by the Sanctions Committee as:
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engaging in, or providing support for, acts that threaten the peace, security or stability of Somalia, including acts that threaten the peace and reconciliation process in Somalia, or threaten the Federal Government of Somalia or AMISOM by force,
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having acted in violation of the arms embargo or the arms resale and transfer restrictions or the prohibition against providing related assistance as referred to in Article 1,
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obstructing the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia,
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being political or military leaders recruiting or using children in armed conflicts in Somalia in violation of applicable international law,
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being responsible for violations of applicable international law in Somalia involving the targeting of civilians including children and women in situations of armed conflict, including killing and maiming, sexual and gender-based violence, attacks on schools and hospitals and abduction and forced displacement.
The relevant persons and entities are listed in the Annex I.