Council Decision (CFSP) 2022/2319 of 25 November 2022 concerning restrictive measures in view of the situation in Haiti

The direct or indirect supply, sale, transfer or export of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned to Haiti, from or through the territories of Member States or by nationals of Member States, or using their flag vessels or aircraft, shall be prohibited whether originating or not in their territories.

It shall be prohibited to:

1. provide technical assistance, training, brokering services or other assistance related to military activities or the provision, manufacture, maintenance or use of any arms and related materiel, directly or indirectly to Haiti;

2. provide financing or financial assistance related to military activities or the provision, manufacture, maintenance and use of any arms and related materiel, including but not limited to grants, loans and export credit insurance, as well as insurance and reinsurance for any sale, supply, transfer or export of arms and related materiel, or the provision of related technical assistance, training, brokering services or other assistance, directly or indirectly to Haiti.

Member States shall inspect, in accordance with their national authorities and legislation and consistent with international law, all cargo to Haiti in their territory, including seaports and airports, if they have information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited under this Article.

Member States shall report in a timely manner to the Committee established by paragraph 19 of United Nations Security Council Resolution (‘UNSCR’) 2653 (2022) (‘the Sanctions Committee’) cases of violations of the measures under paragraphs 1 and 2. Member States shall also submit to the Sanctions Committee a written report on any seizure of items as a result of an inspection carried out pursuant to paragraph 3.

Member States shall ensure that adequate marking and record-keeping measures are in place to trace arms, in accordance with the international and regional instruments to which they are parties, and to consider how best to assist, where relevant and upon their request, neighbouring countries in preventing and detecting illicit trafficking and diversion in violation of measures imposed in paragraphs 1 and 2.

The prohibitions set out in paragraphs 1 and 2 shall not apply to:

1. the supply, sale, transfer or export of arms and related materiel, or the provision of technical assistance, training, brokering services, other assistance or personnel or the provision of financing or financial assistance, to or by the United Nations or a United Nations-authorised mission or to a security unit that operates under the command of the Government of Haiti, intended to be used by, or in coordination with, those entities and intended solely to further the objectives of peace and stability in Haiti;

2. the supply, sale, transfer or export of arms and related materiel, the provision of technical assistance, training, brokering services, other assistance or personnel or the provision of financing or financial assistance to Haiti, as approved in advance by the Sanctions Committee to further the objectives of peace and stability in Haiti;

3. the supply, sale, transfer or export of non-lethal military equipment to Haiti intended solely for humanitarian or protective use, or the provision of related technical assistance, training, brokering services or other assistance or of financing or financial assistance, when intended to further the objectives of peace and stability in Haiti.

Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of persons designated by the Sanctions Committee as responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, stability and security of Haiti, including but not limited to:

1. engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

2. supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto;

3. acting for or on behalf of or at the direction of or otherwise supporting or financing a person or entity designated in connection with the activity described in points (a) and (b), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti, or the smuggling and trafficking of arms to or from Haiti;

4. acting in violation of the arms embargo, or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

5. planning, directing or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti;

6. planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

7. obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti;

8. attacking personnel or premises of United Nations missions and operations in Haiti, or providing support for such attacks;

9. engaging in illicit exploitation of natural resources or illicit trade in natural resources.

The persons referred to in this paragraph are listed in Annex I.

Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.

Paragraph 1 shall not apply where entry or transit is necessary for the fulfilment of a judicial process.

Paragraph 1 shall not apply where the Sanctions Committee determines, on a case-by-case basis, that:

1. entry or transit is justified on the grounds of humanitarian need, including religious obligation;

2. an exemption would further the objectives of peace and stability in Haiti.

In cases where, pursuant to paragraph 3 or 4, a Member State authorises the entry into, or transit through, its territory of persons listed in Annex I, the authorisation shall be limited to the purpose for which it is given and to the persons concerned by the authorisation.

All funds and economic resources owned or controlled directly or indirectly by persons or entities designated by the Sanctions Committee as responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, stability and security of Haiti, including but not limited to:

1. engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

2. supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto;

3. acting for or on behalf of or at the direction of or otherwise supporting or financing a person or entity designated in connection with the activity described in points (a) and (b), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti, or the smuggling and trafficking of arms to or from Haiti;

4. acting in violation of the arms embargo, or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

5. planning, directing, or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti;

6. planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

7. obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti;

8. attacking personnel or premises of United Nations missions and operations in Haiti, or providing support for such attacks;

   or by persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, shall be frozen;

9. engaging in illicit exploitation of natural resources or illicit trade in natural resources.

The designated persons or entities referred to in this paragraph are listed in Annex I.

No funds or economic resources shall be made available directly or indirectly, to or for the benefit of the persons or entities listed in Annex I.

The measures referred to in paragraphs 1 and 2 shall not apply to funds and economic resources which the relevant Member State has determined to be:

1. necessary for basic expenses, including payment for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges;

2. intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services or fees or service charges, in accordance with national laws;

3. intended exclusively for the payment of fees or service charges for routine holding or maintenance of frozen funds, other financial assets and economic resources;

   after notification by the relevant Member State to the Sanctions Committee of the intention to authorise, where appropriate, access to such funds, other financial assets or economic resources and in the absence of a negative decision by the Sanctions Committee within five working days of such notification.

The measures referred to in paragraphs 1 and 2 shall not apply to funds or economic resources which the relevant Member State has determined to be:

1. necessary for extraordinary expenses, provided that such determination has been notified by the Member States to the Sanctions Committee and has been approved by the Sanctions Committee;

2. the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgment provided that the lien was established or the judgment was rendered prior to the date on which the person or entity was included in Annex I, is not for the benefit of a person or entity designated by the Sanctions Committee and has been notified by the Member States to the Sanctions Committee.

Paragraph 1 shall not prevent a designated person or entity from making payment due under a contract entered into prior to the listing of such a person or entity, provided that the relevant Member State has determined that the payment is not directly or indirectly received by a person or entity referred to in paragraph 1, and after notification by the relevant Member State to the Sanctions Committee of the intention to make or receive such payments or to authorise, where appropriate, the unfreezing of funds, other financial assets or economic resources for this purpose, 10 working days prior to such authorisation.

Paragraph 2 shall not apply to the addition to frozen accounts of:

1. interest or other earnings on those accounts; or

2. payments due under contracts, agreements or obligations that arose prior to the date on which those accounts became subject to the measures provided for in paragraphs 1 and 2;

   provided that any such interest, other earnings and payments are frozen and continue to be subject to the measures provided for in paragraph 1.

Paragraphs 1 and 2 shall not apply to the provision, processing or payment of funds, other financial assets or economic resources or to the provision of goods and services which are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs where such assistance and other activities are carried out by:

1. the United Nations, including its programmes, funds and other entities and bodies, as well as its specialised agencies and related organisations;

2. international organisations;

3. humanitarian organisations having observer status with the United Nations General Assembly and members of those humanitarian organisations;

4. bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals or humanitarian clusters coordinated by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA);

5. the employees, grantees, subsidiaries, or implementing partners of the entities mentioned in points (a) to (d) while and to the extent that they are acting in those capacities; or

6. appropriate other actors as determined by the Sanctions Committee.