The Iraq (United Nations Sanctions) (Channel Islands) (Amendment) Order 2004

SCHEDULE

Article 4

PART 1 Amendments and Revocations of the Iraq (United Nations Sanctions) (Channel Islands) Order 2003

1.  In article 4, for the definition of “restricted goods” substitute—

““restricted goods” means the goods specified in Part I of Schedule 1 to the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003(1) made under the Export Control Act 2002(2);”

2.  After article 10 insert—

“Exception

10A.   The privileges and immunities provided in articles 9 and 10 above shall not apply with respect to any legal proceedings nor to any resulting final judgement arising out of a contractual obligation entered into by Iraq after 30th June 2004.”

3.  The following provisions of Schedule 1 are revoked—

(a) the definitions of “designated funds” and “designated person” in paragraph 1(1)(b);

(b) paragraph 1(1)(c);

(c) paragraph 1(1)(f);

(d) paragraph 3;

(e) paragraph 4; and

(f) paragraph 7(2).

Article 5

PART 2 Amendments and Revocations to the Iraq (United Nations Sanctions) (Channel Islands) Order 2000

1.  In article 2—

(a) in paragraph (1)—

(i) after the definition of “the 2003 resolution”(3), insert—

““the 2004 Order” means the Iraq (United Nations Sanctions) (Channel Islands) (Amendment) Order 2004;”;

(ii) omit the definition of “designated funds”(4);

(iii) for the definition of “designated person”, substitute —

““designated person”(5) means a person who is not a listed person, but is a designated 23a person or a designated 23b person;

“designated 23a person” means any person whose funds (including any funds held forhim or on his behalf) are subject to a direction given by the relevant enforcement authority under article 4A(1);

“designated 23b person” means any person whose funds (including any funds held for him or on his behalf) are subject to a direction given by the relevant enforcement authority under article 4A(2);”;

(iv) for the definition of “immediate family member” (6), substitute—

““immediate family member” includes a parent, son (whether or not adopted), daughter (whether or not adopted), spouse, or sibling of the whole or half blood;

“listed person” means a listed 23a person or a listed 23b person;

“listed 23a person” means any person identified by the Sanctions Committee pursuant to paragraph 19 of the 2003 resolution as being an entity referred to in paragraph 23(a) of that resolution;

“listed 23b person” means any person identified by the Sanctions Committee pursuant to paragraph 19 of the 2003 resolution as being an individual or entity referred to in paragraph 23(b) of that resolution;”;

(v) for the definition of “Sanctions Committee”(7), substitute—

““Sanctions Committee” means such committee as is established by the Security Council of the United Nations with responsibility from time to time for identifying pursuant to paragraph 19 of the 2003 resolution individuals and entities referred to in paragraph 23 of that resolution;”;

(vi) for the definition of “senior official”(8), substitute—

““senior official” includes any individual who, immediately before 20th March 2003 was—

(a)

a cabinet official of the former government of the Republic of Iraq;

(b)

a member of the former Iraqi Parliament;

(c)

a head or senior member of the Iraqi military or security forces, intelligence services, military police or paramilitary police who was of a rank at least equivalent to a listed 23b person;

(d)

a head or senior member of an enterprise that was owned or controlled by the former government of the Republic of Iraq who was of a rank at least equivalent to a listed 23b person;

(e)

a senior member of the Iraqi Ba'ath Party who was of a rank at least equivalent to a listed 23b person; or an official of a lower rank who performed crucial functions at least equivalent to those performed by a listed 23b person.”; and

(b) in paragraph (3)(9)—

(i) for the words “a body (“B”) is controlled by a person or government (“P”) if”, substitute “the circumstances in which a body (“B”) is to be treated as being controlled by a person or government (“P”) include, but are not limited to, where”;

(ii) in sub-paragraph (a) delete “or” in the last place it appears; and

(iii) after sub-paragraph (b), insert—

“(c) P, by virtue of his or its voting power in B or otherwise, is entitled to make use of any or all of B’s assets;

(d) P manages itself and B, or B and other bodies, together whilst publishing consolidated accounts;

(e) P shares, jointly and severally, the financial liabilities of B; or

(f) P provides any form of guarantee for the financial liabilities of B.”

2.  For the side heading before article 3 substitute, “Making funds available to designated 23b persons and listed 23b persons”.

3.  In article 3(1), for the words “to a designated person” substitute “directly or indirectly to a designated 23b person or a listed 23b person”.

4.  After article 3(10), insert—

“Freezing funds of listed persons

3A.— (1) Any person who, except under the authority of a licence granted by the relevant enforcement authority under article 5, makes available to any person—

(a) any funds that he held on 22nd May 2003 for or on behalf of a listed 23a person; or

(b) any funds that he holds for or on behalf of a listed 23b person,

is guilty of an offence.

(2) In proceedings for an offence under this article, it is a defence for the accused to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.”.

5.  Article 4(11) is revoked.

6.  Before article 5 insert—

“Freezing of funds on suspicion

4A.— (1) Where the relevant enforcement authority has reasonable grounds for suspecting that the person by, for or on behalf of whom any funds are held is or may be—

(a) a listed 23a person; or

(b) an entity (wherever incorporated or constituted) that immediately before 20th March 2003 was owned or controlled by the government of the Republic of Iraq,

the relevant enforcement authority may by notice direct that such of those funds as were held by, for or on behalf of that person on 22nd May 2003 are not to be made available to any person except under the authority of a licence granted by the relevant enforcement authority under article 5.

(2) Where the relevant enforcement authority has reasonable grounds for suspecting that the person by, for or on behalf of whom any funds are held is or may be—

(a) a listed 23b person;

(b) a senior official;

(c) an immediate family member of a person referred to in sub-paragraph (a) or (b);

(d) an entity (wherever incorporated or constituted) owned or controlled by a person referred to in sub-paragraph (a), (b) or (c); or

(e) a person acting on behalf, or at the direction, of a person referred to in sub-paragraph (a), (b) or (c),

the relevant enforcement authority may by notice direct that those funds are not to be made available to any person except under the authority of a licence granted by the relevant enforcement authority under article 5.

(3) A notice given under paragraph (1) or (2) must specify either—

(a) the period for which the direction is to have effect; or

(b) that the direction is to have effect until it is revoked by notice under paragraph (5).

(4) The relevant enforcement authority must publish a notice given under paragraph (1) or (2) in the way appearing to it to be best calculated to bring it to the attention of the public.

(5) The relevant enforcement authority may by notice revoke a direction given under paragraph (1) or (2) at any time.

(6) The relevant enforcement authority must publish a notice given under paragraph (5) in the same manner as the original notice given under paragraph (1) or (2) was published.

(7) The expiry or revocation of a direction given under paragraph (1) or (2) does not affect the application of article 3 or 3A in respect of the funds in question.

(8) Where a direction has been given under paragraph (1) or (2), any person by, for or on behalf of whom those funds are held may apply to the Royal Court for the direction to be set aside; and on such application the court may set aside the direction.

(9) A person who makes an application under paragraph (8) must give a copy of the application and any witness statement or affidavit in support to the relevant enforcement authority (and to any person by, for or on behalf of whom those funds are held) not later than seven days before the date fixed for the hearing of the application.

(10) Any person who contravenes a direction under paragraph (1) or (2) is guilty of an offence.”.

7.  In article 5(4)(12), for the words “article 3(1) or 4(1)” substitute “article 3(1), 3A(1), 4A(1) or 4A(2)”.

8.  In article 5A(13)—

(a) in paragraph (1)—

(i) for the words “article 4(1)” , substitute “ article 4A(1) or 4A(2)”; and

(ii) in sub-paragraph (b)(i)—

(aa) before “notify” insert “must”; and

(bb) for “on whose behalf he held the funds” substitute “on behalf of whom the funds were held”;

(b) in paragraph (2)—

(i) for the words “article 4(1)”, substitute “ article 4A(1) or 4A(2)”; and

(ii) in sub-paragraph (b)(i), for the words “by, for, or on whose behalf he held the funds”, substitute “by, for or on behalf of whom the funds were held”;

(c) after paragraph (2), insert—

“(2A) Within 28 days of the publication by the relevant enforcement authority of notification that the Sanctions Committee has published a list of listed 23a persons, any person included in that list or holding funds for or on behalf of any person included in that list must—

(a) cause the transfer of such funds as were held by, for or on behalf of that person on 22nd May 2003 to the account of the Development Fund for Iraq held at the Federal Reserve Bank of New York; and

(b) notify the relevant enforcement authority in writing of—

(i) the identity of the person by, for or on behalf of whom the funds were held;

(ii) the amount transferred; and

(iii) the date the transfer took place.

(2B) Within 28 days of the publication by the relevant enforcement authority of notification that the Sanctions Committee has published a list of listed 23b persons, any person included in that list or holding funds for or on behalf of a person included in that list must—

(a) cause the transfer of any funds held by, for or on behalf of that person to the account of the Development Fund for Iraq held at the Federal Reserve Bank of New York; and

(b) notify the relevant enforcement authority in writing of—

(i) the identity of the person by, for or on behalf of whom the funds were held;

(ii) the amount transferred; and

(iii) the date the transfer took place.

(2C) Any person who holds funds that are required to be transferred to the account of the Development Fund for Iraq by paragraph (2A) or (2B) after the expiry of the period referred to in the appropriate paragraph must, as soon as possible after he becomes aware that he holds such funds—

(a) cause the transfer of those funds to the account of the Development Fund for Iraq held at the Federal Reserve Bank of New York; and

(b) notify the relevant enforcement authority in writing of—

(i) the identity of the person by, for on behalf of whom the funds were held;

(ii) the amount transferred; and

(iii) the date the transfer took place.

(2D) The relevant enforcement authority must publish notification of any list referred to in paragraph (2A) or (2B) in the way appearing to it to be best calculated to bring it to the attention of the public.”;

(d) in paragraph (3)—

(i) for the words “Neither paragraph (1) nor (2) applies” substitute “Paragraphs (1) to (2C) do not apply”;

(ii) in sub-paragraph (a) for the words “that paragraph”, substitute “the appropriate paragraph”;

(iii) in sub-paragraph (c) for the words “that paragraph”, substitute “the appropriate paragraph”;

(e) in paragraph (4) for “(1) or (2)” substitute “(1), (2), (2A), (2B) or (2C)”;

(f) in paragraph (5) for “(1) or (2)” substitute “(1), (2), (2A), (2B) or (2C)”;

(g) in paragraph (6) for “(1) or (2)” substitute “(1), (2), (2A), (2B) or (2C)”; and

(h) in paragraph (7) for “(1) or (2)” substitute “(1), (2), (2A), (2B) or (2C)”;

9.  In article 6 after “article 3” insert “, 3A or 4A(10) or article 6(3) of the 2004 Order”;

10.  In article 8—

(a) in paragraph (1)(a)(14)—

(i) after “a designated person”, insert “or a listed person”;

(ii) after “article 3,” insert “3A, 4A(10),”;

(iii) after “article 5A” insert “or article 6(3) of the 2004 Order”; and

(b) for paragraph (2)(a) substitute—

“(a) its knowledge or suspicion that a person is a listed person or a designated person or has committed an offence under article3, 3A, 4A(10), 5(4) or 5A or article 6(3) of the 2004 Order, or”.

11.  In article 11(1)(15) after the “article 3,” insert “3A, 4A(10),”.

(1)

S.I. 2003/2764

(2)

2002 c. 28.

(3)

The definition of “the 2003 resolution” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(a) of Schedule 1.

(4)

The definition of “designated funds” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(b) of Schedule 1.

(5)

The definition of “designated person” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(b) of Schedule 1.

(6)

The definition of “immediate family member” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(c) of Schedule 1.

(7)

The definition of “Sanctions Committee” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(f) of Schedule 1.

(8)

The definition of “senior official” was inserted by S.I. 2003/1521, article 3 and paragraph 1(1)(f) of Schedule 1.

(9)

Article 2(3) was inserted by S.I. 2003/1521, article 3 and paragraph 1(2) of Schedule 1.

(10)

Article 3 was inserted by S.I. 2003/1521, article 3 and paragraph 2 of Schedule 1.

(11)

Article 4 was inserted by S.I. 2003/1521, article 3 and paragraph 3 of Schedule 1.

(12)

Article 5(4) was amended by S.I. 2003/1521, article 3 and paragraph 4 of Schedule 1.

(13)

Article 5A was inserted by S.I. 2003/1521, article 3 and paragraph 5 of Schedule 1.

(14)

Article 8(1)(a) was substituted by S.I. 2003/1521, article 3 and paragraph 7(1) of Schedule 1.

(15)

Article 11(1) was substituted by S.I. 2003/1521, article 3 and paragraph 8 of Schedule 1.