On September 17, 2021, President Biden signed Executive Order 14046, “Imposing Sanctions on Certain Persons With Respect to the Humanitarian and Human Rights Crisis in Ethiopia” (“EO 14046“) aimed at addressing the widespread humanitarian conflict in northern Ethiopia. Both the White House and Secretary of State Antony J. Blinken also released statements found here and here, calling for ceasefire negotiations to begin to find a political solution to the ongoing conflict in the region and a sanctions scheme to target individuals and groups responsible for violence, unrest, human rights abuses and the obstruction of humanitarian efforts. The EO was accompanied by certain general licenses and FAQs, as explained in more detail below, all of which are available here.
EO 14046 authorizes the US Treasury Department, in consultation with the US Department of State, to apply menu-based sanctions to any party found to fall within the following:
- Parties responsible for, or complicit in, or found to have been directly or indirectly engaged in (i) actions or policies that threaten the peace, security or stability of Ethiopia; (ii) corruption or human rights abuses in or with respect to northern Ethiopia; (iii) obstruction to the delivery or distribution of humanitarian assistance or attacks on humanitarian personnel or projects; (iv) the targeting individuals in northern Ethiopia through acts of violence and any conduct that would qualify as a violation of international humanitarian law; (v) planning, directing, or committing acts of violence in or with respect to northern Ethiopia against United Nations personnel or African Union personnel; (vi) actions or policies that undermine the democratic process or territorial integrity of Ethiopia; or (vii) activities that have contributed to or obstructed the ceasefire or peace process in northern Ethiopia;
- A military or security force that operates or has operated in Ethiopia on or after November 1, 2020;
- Entities, including government entities or political parties, that have engaged in, or whose members have engaged in, activities that have contributed to the crisis in northern Ethiopia or have obstructed a ceasefire or peace process to resolve the ongoing crisis;
- A political subdivision, agency, or instrumentality of the Government of Ethiopia, the Government of Eritrea, the People’s Front for Democracy and Justice, the Tigray’s People’s Libertarian Front, the Amhara regional government or the Amhara regional or irregular forces, on or after November 1, 2020;
- A spouse or adult child of any sanctioned person; and
- A leader, senior official, senior executive officer, or member of the board of directors, who is responsible for, or complicit in, or who has directly or indirectly engaged or attempted to engage in, any activity contributing to the crisis in northern Ethiopia, including: (i) entities, including government entities or military or security forces, in operation in Ethiopia during the tenure of such an individual; (ii) entities that have, or whose members have, engaged in any activity contributing to the crisis in northern Ethiopia or obstructed ceasefire or a peace process to resolve the ongoing crisis during his/her tenure; or (iii) the Government of Ethiopia, the Government of Eritrea, the People’s Front for Democracy and Justice, the Tigray’s People’s Libertarian Front, the Amhara regional government or the Amhara regional or irregular forces, on or after November 1, 2020.
EO 14046 also authorizes designation of those that materially assist, sponsor, or provide support to any sanctioned person designated pursuant to EO 14046, as well as those owned or controlled by a sanctioned party. Individuals designated pursuant to EO 14046 are restricted from entering the United States. A summary of EO 14046 is also included in OFAC’s FAQ 922.
As noted above, parties designated pursuant to EO 14046 can face varying levels of sanctions up to and including comprehensive blocking as a Specially Designated National (“SDN“). However, other possible sanctions include but are not limited to blocking of all property and interested in property within the United States of a sanctioned person, prohibitions on investments or purchasing of debt of a sanctioned person, prohibiting US financial institutions from making loans, or prohibiting any transactions in foreign exchange that are subject to US jurisdiction and are those in which a sanctioned person has an interest.
In the event of designation as an SDN, any property or interests in property of SDNs designated pursuant to EO 14046 that come within US jurisdiction or possession of a US person must be blocked and reported to OFAC, and US persons are generally prohibited from transacting with any listed SDNs. Though ordinarily entities owned 50% or more by one or more SDNs would be automatically considered SDNs as well, OFAC’s FAQ 923 and FAQ 924 issued concurrent with EO 14046 explain that unless an entity is itself sanctioned on the Specially Designated Nationals and Blocked Persons List (“SDN List“) or the Non-SDN Menu-Based Sanctions List (“NS-MBS List“), it is not blocked pursuant to EO 14046. In other words, the 50% rule does not apply to persons blocked solely pursuant to EO 14046. With that said, EO 14046 still leaves open the possibility for entities owned or controlled by blocked parties to be sanctioned, as noted above.
The US Treasury Department issued a press release on September 17, 2021 found here, expressing the Treasury Department’s commitment to the flow of humanitarian assistance to individuals across Ethiopia and the greater Horn of Africa region. In this regard, OFAC issued three general licenses authorizing US persons to engage in (i) activities of certain international organizations and other international entities (Ethiopia General License Number 1); (ii) certain transactions in support of nongovernmental organizations’ activities (Ethiopia General License Number 2); and (iii) transactions related to the exportation or reexportation of agricultural commodities, medicine, medical devices, replacement parts and components, or software updates (Ethiopia General License Number 3). FAQs regarding such general licenses were issued as FAQs 925, 926, and 927.
Though no designations have been made to date under EO 14046, on October 19, 2021, the US Senate Banking Committee held a hearing in which the Deputy Secretary of Treasury testified that the US Treasury Department remains committed to humanitarian efforts in Ethiopia, and that sanction targets would continue to be monitored and designations would be made if necessary. As Ethiopia and the greater Horn of Africa region remain in a humanitarian crisis, the imposed sanctions program will continue to develop. The State Department’s Directorate of Defense Trade Controls (“DDTC“) issued a notice to its website that Ethiopia would soon be added to Section 126.1(n) of the International Traffic in Arms Regulations (“ITAR“) imposing an arms embargo. Though not yet implemented, the inclusion of Ethiopia to Section 126.1 will result in the prohibition of exports/reexports of defense articles and services to Ethiopia. We note DDTC had already implemented a policy of denial for such items since May 23, 2021. Pursuant to a note to Country Group D:5 in Supplement No. 1 to Part 740 of the Export Administration Regulations (“EAR“), the addition of Ethiopia to ITAR Section 126.1 also means that Ethiopia will be a Country Group D:5 country. This will result in restrictions on EAR license exceptions when items subject to the EAR are destined to Ethiopia as a Country Group D:5 country.
The authors acknowledge the assistance of Taylor Parker with this blog post.