This is due to a “licence” that was granted to the mining magnate by the US Department of the Treasury on 15 January – five days before the handover of power between the Donald Trump and Joe Biden administrations.
In a letter addressed to the Washington-based law firm Arnold & Porter Kaye Scholer LLP, Andrea M. Gacki, director of the Office of Foreign Assets Control, informed the Israeli tycoon’s lawyers that “based upon, inter alia, of information dated December 3, 2020, submitted on behalf of Mr. Dan Gertler, to the Office of Foreign Assets Control, the transactions described herein are authorised.”
What follows is a long list of companies linked to the billionaire and one of his associates, the Belgian national Pieter Albert Deboutte, which were sanctioned in December 2017 under the Global Magnitsky Act. This is a law that allows the US government to sanction and freeze the assets of individuals and companies it considers to be complicit in acts of corruption or human rights violations.
“Gertler used his close friendship with DRC President Joseph Kabila to act as a middleman for mining asset sales in the DRC, requiring some multinational companies to go through Gertler to do business with the Congolese state. As a result, between 2010 and 2012, the DRC reportedly lost more than $1.36bn in revenue from the underpricing of mining assets that were sold to offshore companies linked to Gertler,” the US Treasury Department said at the time.
A light regime before a total exoneration?
Three years later, the tone changed. In addition to Gertler and Deboutte, a total of 35 companies sanctioned in two waves (December 2017 and June 2018) – including Fleurette Properties, Oil of DR Congo and Moku Mines d’Or SA – are again allowed to carry out transactions with firms based in the US. These include financial institutions such as Citibank, Bank of New York Mellon, but also Deutsche Bank and Bank of China Limited.
The easing of these sanctions, initially reported by The New York Times, allows financial transactions and access to previously blocked accounts. However, this lighter regime is accompanied by various restrictions on certain transfers of property. The one-year period granted is supposed to allow the US administration to continue to examine the information provided by Gertler before deciding on the lifting of the restrictions.
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“The licence does not remove Gertler and his network from the sanctions list, but it effectively undermines the sanctions by allowing all transactions and activities moving forward with Gertler and his network and by authorising a group of named banks and financial institutions to unblock, i.e. unfreeze, any accounts/funds/property they have held. The licence shows that, in the end, the [law] firm helping Gertler was one of DC’s biggest and most prestigious,” said The Sentry, an NGO that fights corruption in Africa.
The Trump administration provided no details regarding the nature of the “information dated December 3, 2020”, which led it to ease the sanctions regime imposed on Gertler and his associates.
It should be noted however, that one of the lawyers and lobbyists associated with Gertler is Alan Dershowitz, who also represented former president Trump. Furthermore, the outgoing team had been particularly criticised for the list of controversial people, often accused of financial wrongdoing, who were granted presidential pardons in the final hours of the Trump administration.
“This licence may be revoked or modified at any time. If this licence was issued as a result of willful misrepresentation it may be declared void from the date of its issuance or from any other date,” states the document from the Office of Foreign Assets Control.
Neither the Biden administration nor the Kinshasa authorities have reacted officially since the easing of sanctions.
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