There are reports coming out today that senior administration officials have announced a policy that those providing humanitarian relief to Somalia which falls into the hands of al-Shabaab will not be prosecuted. This guidance is meant to alleviate the fears of those providing aid to the region which is currently suffering from severe famine.

This guidance, as reported by most news sources, is aimed at assuring those organizations providing humanitarian assistance in Somalia will not be prosecuted for providing aid that might fall into the hands of Al-Shabaab, an organization that is currently designated as a Specially Designated Global Terrorist pursuant to economic sanctions administered by the United States Department of the Treasury Office of Foreign Assets Control (OFAC).

The concern here is that Al-Shabaab, which controls two of the hardest-hit areas of Somalia, has been taxing, imposing tolls on and diverting aid that non-governmental organizations are struggling to get to those in need, creating a dilemma for those groups. Al-Shabaab has been targeted by sanctions since 2008, and non-governmental organizations having to pay the taxes described above have ran the risk of prosecution for violating those sanctions.

The new guidance has not been officially published, however, those officials discussing the guidance with reporters have stated that while the current sanctions are not meant to prohibit delivery of assistance to people in need in Somalia, humanitarian assistance organizations felt constrained by the sanctions due to the realities of operating in Somalia.

According to reports, almost 12 million people are in need of emergency assistance. In particular, children have been hard-hit, with nearly 1.2 million at risk in southern Somalia, 600,000 of them being severely malnourished.

While media reports are great they are no substitute for actual guidance issued by OFAC or the Department of Justice (DOJ). The reason I mention DOJ is because ultimately OFAC does not prosecute violations of the sanctions, that responsibility falls to DOJ. Another thing that bothers me about this “announcement” is that all officials spoke on condition of anonymity. Such an announcement made through reporters without citation to any formal advisory notice or change in the regulations does not make me comfortable advising clients they can freely provide aid in Somalia without fear of prosecution.

It should be kept in mind that the Somalia sanctions are a target based sanctions program and not a country based program. Therefore, U.S. persons are only prohibited from engaging in transactions with those parties designated pursuant to the program. However, until such guidance as mentioned in this article is officially released, I would caution anyone operating in Somalia to avoid all interactions and transactions with parties designated under the Somalia sanctions program, particularly Al-Shabaab.

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@ferrari-legal.com.