(translated by krizcpec)
In “Why would the wealth of dictators end up evaporated? (One)” I went through the background of the Swiss Dictator Assets Law. In this article I would write about the legal basis for Britain, the United States and other countries to freeze assets of MENA dictators.
This round of actions by Western countries like Britain and the United States to freeze assets of dictators based on UN Security Council resolutions 1970 and 1973, which drew their legitimacy from Article 41 of the UN Charter: “The Security Council may decide what measures not involving the use of armed force...” so that international peace and security can be maintained. The freezing of assets belonging to the dictator is of course a measure that does not involve the use of armed force.
Passed on February 26 this year, the UN Security Council resolution 1970 decided that “all Member States shall freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities listed in Annex II of this resolution”.
Addenda to the listed individuals and entities were included in the UN Security Council resolution 1973. Take for example Libyan dictator Gaddafi, who has the largest amount of assets frozen in this round of action: apart from Gaddafi himself, names of persons closely related to him, such as his children and the secretary for external security also appeared on the list. That list contained in addition five economic entities that were controlled by Gaddafi and his family: Libyan Central Bank, Libyan Investment authority, Libyan Foreign Bank, Libyan Arab African Investment Company, and Libyan National Investment Company.
The UN Security Council resolution 1973 affirmed the Security Council’s determination to ensure that the frozen assets “[shall] be made available to and for the benefit of the people of the Libyan Arab Jamahiriya.”
In fact, the UN Security Council has passed many resolutions to freeze assets of certain countries. In the past two decades, Iraq, Iran, Somalia, Sudan, and North Korea have been on the list. In countries like Britain and the United States there are laws that [allow] freezing of foreign assets. Many years ago, the United States had formulated a complete mechanism to freeze assets belonging to governments, organizations, and individuals of foreign countries; a mechanism that China’s state media often criticize as “a tool that the United States uses to forcefully promote the values of freedom and democracy”.
And in the United States there is an Office of Foreign Assets Control (the OFAC) of the US Department of the Treasury that directly reports to the Presidential Wartime and National Emergency Committee. The OFAC was formally established in December 1950, the time when the Chinese People's Volunteer Army entered North Korea for battles. U.S. President of the time Truman declared that the country had entered a state of emergency and announced a freeze on all assets of China and North Korea in United States through the OFAC.
The OFAC did not come out of nowhere. Its predecessor was the Office of Foreign Funds Control (the FFC), set up in 1940 after Nazi Germany invaded Norway. Directly under the U.S. Treasury Secretary, The FFC played an important role in U.S. economic and trade sanctions against the Axis powers before the United States formally entered World War II.
The scope of economic and trade sanction of the OFAC is broken down into six segments, namely: Specially Designated Nationals Sanctions, Anti-terrorism Sanctions, Non-Proliferation Sanctions, Narcotics Trafficking Sanctions, Cuba Sanctions, and Other OFAC Sanctions Programs.
Each of these is backed by complete and thorough U.S. Federal laws or administrative regulations. The OFAC is authorized to seize or freeze property it deems suspicious. These six independent and yet interconnected segments form a highly influential U.S. economic and trade sanction network that touches a host of industries across the globe and with formidable punishing powers.
How [then] are the acts of sanction carried out? The OFAC has a Specially Designated Nationals List which legal effect is applicable to all U.S. citizens living in the United States and around the world, foreigners with right of permanent residence in the United States, as well as overseas branches of U.S. corporations.
The Specially Designated Nationals List is updated regularly. Whenever U.S. financial institutions receive an updated version of the list, they would have to run a check against their own customers. If any of their customers are spotted on that list, the assets of these persons would have to be frozen immediately. These institutions are required to submit to the OFAC a report that contains the method employed to check their customers against the list, the actions taken to freeze assets, contact information and so on.
By reason of alleged persecution of human rights, or destruction of the democratic system, the OFAC has to this date rules that American enterprises and individuals must not have financial transactions with the governments, or certain individuals, of the following countries: North Korea, Cuba, Belarus, Burma, Libya, Iraq, Iran, Sudan, Somalia, Zimbabwe, Syria, the former Libyan authorities, the Democratic Republic of the Congo, the Balkan States, Côte d'Ivoire, and Lebanon.
The Specially Designated Nationals List on the OFAC website was last updated on March 31, 2011.
In general, frozen assets would in the end be handled in one of the following ways.
First, they would be returned to the owners after they are thawed.
In September 2004, President Bush announced that the [more than] one billion U.S. dollars worth of Libyan assets that had been frozen for twenty years would be released. These assets were thawed because Gaddafi government announced in 2003 its decision to abandon plan to produce weapons of mass destruction and pledged to pay 2.7 billion in damages to victims of Lockerbie bombing in 1988. In recognition of these actions, the U.S. government returned those assets to the owner.
Second, they would be used to repay victims of the parties whose assets are frozen.
U.S. law provides that the government do not use frozen assets; yet if there is relevant judicial ruling, the government would have to execute accordingly.
Prior to the Gulf war, the U.S. government froze huge amount of Iraqi money. In 2002, veterans who were held captives by the Iraqi military during the Gulf war won their appeal, and U.S. court ruled to use Iraqi assets frozen by the United States to pay them a compensation of more than 900 million U.S. dollars.
Third, the assets would remain frozen.
There are countries, governments and individuals whose assets are frozen for an extended period. For example, it's been decades since Cuban government's assets were frozen, nine presidents had assumed office and to this date the assets have yet to be thawed.
Up to this moment, it is not yet a main task of the OFAC to tackle properties dictators plunder by means of corruption. But in order to help developing countries to retrieve state assets corrupt leaders and officials had stolen, the UNODC and the World Bank had in 2007 jointly launched the Stolen Assets (StAR) Initiative: Challenges, Opportunities, and Action Plan, and made Switzerland legislate its Dictator Assets Law in 2010 ; [in time] they would undoubtedly urge OFAC to adjust its priorities. This [potential] makes the Specially Designated Nationals List, published by the United States in view of its national security and foreign policy, a threat to individuals who may be included in that list of sanction.
So here comes my last question: given that the United States has so long ago passed the laws to freeze assets belonging to foreign governments, organizations or individuals, why would dictators and terrorists keep choosing to deposit their fortune with American Banks nonetheless? Gaddafi for one continues to place his assets in American banks where his fortune has been frozen.
Answers to this question, apart from the fact that the United States has the world’s best financial system and economic ties with most countries in the world, are something that only these individuals with frozen assets can provide.