While Afghans Wait, States and Banks Decrypt the Humanitarian Exception in the Taliban Sanctions Regime

A man distributes bread to Burka-wearing Afghan women outside a bakery in Kabul, Afghanistan, Thursday, Dec, 2, 2021. According to U.N. figures from early November, almost 24 million people in Afghanistan, around 60% percent of the population, suffer from acute hunger, including 8.7 million living in near famine. (AP Photo/Petros Giannakouris)

On March 31st, in response to the United Nation’s biggest humanitarian appeal to date, the international donors conference on supporting the humanitarian response in Afghanistan secured about $2.4 billion in pledges for 2022 from forty-one donors. Despite the high figure, it still fell short of the $4.4 billion required to meet the skyrocketing humanitarian needs of the Afghan population, including millions who face emergency levels of acute food insecurity. With increasing parts of the population relying on assistance since the Taliban took over the country in August 2021, these donations must rapidly transform into concrete deliveries of life-saving and basic human needs assistance. The capacity to facilitate and ensure the flow of delivery on humanitarian activities depends in part on the full humanitarian supply chain, including financial services and the capacity to transfer and access funds into the country.

While the United Nations (UN) sanctions regime against the Taliban remains in place, as well as other regional and national sanctions measures, sanctions authorities have taken steps to ensure that NGOs, humanitarian organizations, and international organizations can provide humanitarian assistance in Afghanistan. In December 2021, amid mounting pressure to alleviate the humanitarian catastrophe in Afghanistan, the United Nations Security Council took a rare step with the adoption of Resolution 2615 which created a humanitarian exception for the 1988 Taliban sanctions regime. With this resolution, the Council affirmed that humanitarian assistance and other activities that support basic human needs in Afghanistan are not a violation of the asset freeze against listed individuals and entities associated with the Taliban. It permits the processing and payment of funds, other financial assets or economic resources, and the provision of necessary goods and services to Afghanistan to ensure the timely delivery of humanitarian assistance and to support basic human needs.

Contrary to the humanitarian exception in the UN Somalia sanction regime—the only other humanitarian exception in a UN sanction regime—the provision is not restricted to the UN and its implementing partners. This allows for more humanitarian actors to be involved while also extending beyond humanitarian assistance to “other activities that support basic human needs.” While there is no agreement upon an international definition of “basic human needs,” the latter is understood to go beyond immediate life-saving assistance to activities foreseen in the United Nations Transitional Engagement Framework (TEF) for Afghanistan, including education, agriculture, and access to justice.

For the UN humanitarian exception for Afghanistan to matter, member states must translate it into domestic and regional legislation and policies. Some have already begun doing so, including the United Kingdom, and others through the European Union. Concurrently, the US issued six general licenses, among which three were adopted pursuant to Resolution 2615. This includes General License 19 which authorizes transactions and activities by non-governmental organizations necessary “to support humanitarian projects to meet basic human needs,” among others. The domestication of the UN humanitarian exception is ongoing, though there remain some gaps at the international level. To help navigate this complex sanction landscape and its various humanitarian carve-outs, the UN Office for the Coordination of Humanitarian Affairs (OCHA) has recently shared internal guidance for the implementing partners of the humanitarian response plan in Afghanistan.

In a report for the Norwegian Refugee Council, Dr. Erica Moret noted that while “general licenses and the 2615 exceptions are both welcome and necessary, banks are likely to remain extremely cautious in relation to transfers into Afghanistan, and bank de-risking will remain a major challenge to the scaling up of humanitarian response.” And indeed, more than three months after the adoption of the humanitarian carve-out, some banks—in particular, correspondent banks involved in transactions to Afghanistan—continue to delay or refuse the transfer of funds to Afghanistan. To overcome the problem, the report says financial actors would need “legal clarity and incentives to facilitate financial transfer to aid groups. Aid agencies also need to be able to withdraw that money once it reaches their accounts in Kabul.” In the meantime, and as recently reported by the president and CEO of Save the Children, humanitarian agencies face a serious obstacle in getting access to cash for their operations in Afghanistan. They reportedly rely on “a single international banking partner” as well as the UN system which has facilitated the transfer of cash into the country and informal money changer systems also known as hawala.

By mid-year 2022, as per Resolution 2615, the Emergency Relief Coordinator is expected to brief the Security Council on the delivery of humanitarian assistance in Afghanistan and the implementation of the exception. Humanitarian organizations, OCHA, relevant civil society groups, and member states should thus continue to closely monitor the implementation of the humanitarian exception in the Taliban sanctions regime, including how it is translated into national legislation and regulations; how it is applied in donor agreement; how financial institutions react to it; and how effective it has been to ensure the delivery of humanitarian assistance.

The mid-year briefing will be an important opportunity to shed light on ongoing challenges for humanitarian organizations to deliver aid in the country, as well as on solutions the Security Council could put forward to address such challenges—though the intervening six months is a long time for Afghans in need to wait. The solutions could include the following initiatives: the clarification by member states of the scope of the humanitarian exception through multi-stakeholder dialogues at the national level; the publication of further guidance on the implementation of the humanitarian exception; the issuance of guarantees for the baking sector, ensuring that donor contractual conditions fully abide by the humanitarian exception; and the allowance by donors of flexibility to navigate the rapidly evolving context.

The international community should also keep in mind that by December 2022, one year from its adoption, the Security Council will review the humanitarian exception in order to gauge the extent to which there has been a diversion to the listed entities and individuals, under the 1988 Taliban sanctions list. The one-year mark could also turn into an opportunity to course-correct and make the humanitarian exception more effective. To that end, it is important to continue documenting and actively reporting on the types of challenges humanitarian organizations face to deliver on their activities in Afghanistan, including in assisting OCHA to prepare for the briefings.

Arguably, however, the UN membership should not wait for these calendar landmarks to address such persistent roadblocks. As the lives of many Afghans are worsening by the day, all steps should be taken to facilitate the delivery of humanitarian activities and support basic human needs in the country.

Agathe Sarfati is a Senior Policy Analyst at the International Peace Institute. Her policy report on better safeguarding humanitarian action in UN Security Council’s counterterrorism measures and related sanctions was published on March 31, 2022.