The following is a summary of the 26th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.
On February 16, 2023, the Congressional Study Group on Foreign Relations and National Security convened over Zoom to discuss changes to U.S. and international sanctions policies related to humanitarian assistance, namely the creation of exceptions across United Nations and U.S. sanctions programs for humanitarian assistance.
In December 2022, the U.N. Security Council adopted Resolution 2664, which installs an unprecedented set of exceptions across all U.N. sanctions programs that are intended to ensure that counter-terrorism and other sanctions do not interfere with or deter the delivery of essential humanitarian assistance in areas like Afghanistan that are under the substantial control of sanctioned entities. The U.S. Treasury Department followed suit the next month by introducing a set of General Licenses and related guidance that does much the same for U.S. sanctions regimes. Together, the two measures introduce some fundamental changes to how sanctions operate. But challenges remain, including in how humanitarian assistance intersects with U.S. material support for terrorism laws.
The study group was joined by two outside experts who led the discussion:
- Rachel Alpert, a partner at Jenner & Block LLP and co-chair of its National Security, Sanctions, and Export Control practice group, who previously served as an attorney-adviser at the U.S. Department of State working on related issues; and
- Alex Zerden, the founder and principal of Capital Peak Strategies LLC and an adjunct senior fellow at the Center for a New American Security, who previously served at the National Economic Council, on Capitol Hill, and at the U.S. Treasury Department, including a stint leading the Treasury Department’s office at the U.S. Embassy in Kabul, Afghanistan.
Prior to the discussion, the study group received the following background readings:
- Katie King et al., Understanding Humanitarian Exemptions: U.N. Security Council Sanctions and Principles Humanitarian Action, Working Group Briefing Memorandum, Harvard Law School Program on International Law and Armed Conflict (Apr. 2016);
- S. Department of the Treasury, The Treasury 2021 Sanctions Review (Oct. 2021);
- Dustin Lewis and Naz Modirzadeh, “The U.N. Security Council Adopts a Standing Humanitarian ‘Carve-Out,’” Lawfare (Dec. 13, 2022); and
- Ali Burney et al., S. Treasury Implements Humanitarian Authorizations Across Sanctions Programs to Comply with U.N. Resolution, International Compliance Blog (Jan. 11, 2023).
The presenters began with basic information on sanctions and differences between U.N.- and U.S.-imposed sanctions. Chapter VII of the U.N. Charter provides the U.N. Security Council with the authority to take action to maintain or restore international peace and security, but U.N. member states must carry out U.N. sanctions by importing them into their respective domestic legal regimes. Historically, the presenters said, there have not been consistent humanitarian carveouts in U.N. sanctions regimes, which can create serious challenges for actors providing humanitarian relief in areas where a sanctioned entity has de facto control. The presenters provided examples of these challenges: U.N. sanctions targeting the Taliban initially did not provide a broad carveout for humanitarian assistance, which necessitated case-by-case authorization of humanitarian assistance; the U.N. also created a humanitarian carveout 2010 in order to allow delivery of famine-relief aid to areas of Somalia under control of Al Shabaab.
Pivoting to sanctions under U.S. domestic law, the presenters explained that the material support/resources criminal statute at 18 U.S.C. §§ 2339A/B provides exceptions for medicine and religious materials, but no general licensing authority. In the Al Shabaab context, the presenters explained, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) had stated that “incidental benefits” of food or medicine flowing to al Shabaab members as a result of humanitarian assistance are not a focus for OFAC sanctions enforcement, but exposure to criminal material support statutes remains because of that lack of a general licensing authority.
The presenters also described in detail the regime of sanctions imposed by the U.S. and U.N. against the Taliban. Over time, they explained, sanctions imposed against the Taliban by the U.N under U.N. Security Council Resolution 1267 changed from an organization-based designation to a list-based designation; however, the U.S. did not mirror that shift. The presenters explained that although the Taliban spent political capital during the 2018-2021 peace process negotiating for sanctions relief and forbearance, those deadlines were not met, and after the Taliban took over Kabul in 2021, sanctions remained in full force. Thus, the presenters said, U.S. OFAC sanctions that had previously been focused on the then-insurgent Taliban remained in place even after the Taliban gained control over Afghanistan; those counterterrorism sanctions lack humanitarian carveouts, unlike other types of sanctions.
The presenters explained that the Department of the Treasury began to balance pressure against the Taliban by providing six general licenses, as well as guidance. In October 2021, the Department also released to the public a review describing key policy considerations for its use of sanctions for foreign policy and national security purposes: existence of a clear policy objective; assessment of whether sanctions are an appropriate tool for the circumstances; the economic and political implications for sanctions targets and the U.S. economy, allies, and third parties; multilateral coordination and engagement; and the ability to clearly communicate, enforce, and reverse sanctions.
Following the passage of U.N. Security Council Resolution 2615, the presenters said, the Department of the Treasury announced additional general licenses available for entities conducting the official business of the United States; transactions by non-government organizations; and for certain limited activities addressing basic human needs. According to the presenters, General License 20 allows for most economic activity imagined by humanitarian stakeholders in Afghanistan. Personal remittances are also addressed by Treasury’s general licenses, a measure that the presenters said addressed concerns of Afghan-Americans.
Finally, the presenters discussed remaining sanctions-related challenges to humanitarian assistance. OFAC has issued a general license for humanitarian assistance related to the recent earthquake in Syria, but existing counter-terrorism sanctions are unaffected by that license, the presenters observed. The material support criminal statutes remain a challenge to organizations providing humanitarian aid, as do highly-restrictive export controls in some contexts that provide very little de minimis allowances, they said. The presenters also explained that the cost of financial transactions in very low-income jurisdictions cuts against the business case for banks to participate in those markets.
A robust question-and-answer period followed the presentations. Topics discussed included effective messaging to the public and to affected parties around these issues; the extent to which these restrictions limit humanitarian aid efforts; and other avenues Congress might pursue to address these issues.
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