Milestone in the Security Council: What the New Humanitarian “Carve-out” Means for UN Sanctions Regimes

The Security Council adopts Resolution 2664 (2022) on UN Sanctions regimes, Dec. 9, 2022. (UN Photo/Manuel Elías)

Last week, the United Nations Security Council (UNSC) adopted Resolution 2664, a cross-cutting humanitarian carve-out for all UN sanctions regimes–including the 1267 ISIL/al-Qaida regime–to safeguard the timely and effective conduct of humanitarian activities. The legally-binding resolution affirms that any financial transactions or provision of goods and services necessary for humanitarian assistance and basic human needs “are permitted and not a violation of the asset freeze” measures.

Few believed such a resolution would be adopted at this time, and fewer still thought that it would include the 1267 “counterterrorism” sanctions regime. For more than a decade, the humanitarian community has been calling attention to the knock-on effects of asset freeze measures on humanitarian activities due to overcompliance by donors, the private and financial sectors, and the “chilling effect” on humanitarian organizations themselves. Resolution 2664 represents a major shift, comparable to the moment when the UNSC moved from comprehensive embargoes on countries to targeted sanctions in the early 1990s. Its success is due in large part to the years of advocacy by humanitarian organizations, civil society groups, member states, as well as numerous counterterrorism practitioners. It also reflects the changing geopolitical dynamics. The United States—once considered among the most reticent to agree to such a carve-out—now has foreign policy priorities that superseded counterterrorism, and in fact was a penholder, with Ireland, of the resolution.

While the carve-out—also called a standing exemption or exception—will not solve all the difficulties related to delivering humanitarian assistance and protection in crises, and does not address all the concerns raised over the years, it signals the intent of the Council to ensure the effective delivery of humanitarian assistance and the prioritization of this goal. The resolution should alleviate some of the obstacles related to asset freeze measures, and provide the clarity and predictability necessary to conduct timely humanitarian activities in the more than 14 contexts targeted by UNSC sanctions. Finally, in resolving a few tensions with the counterterrorism sanctions, it offers greater clarity and predictability for all stakeholders and affirms that UN counterterrorism efforts and humanitarian activity share some common ground in addressing some of the key conditions and grievances that can fuel conflict and terrorism.

The New Baseline

While other sanctions regimes have employed carve-outs in different ways, UNSC Resolution 2664—adopted by fourteen votes and co-sponsored by fifty-three countries—creates a standardized humanitarian “carve-out” across all UN sanctions regimes.

The carve-out replaces all previous types of humanitarian carve-outs which had been included by the UNSC on a case-by-case basis, including the humanitarian exemption by request in the Yemen and North Korea regimes, as well as the standing humanitarian exemption in the Somalia and (the more recent) Haiti sanctions regimes. Notably, it does not replace the Taliban humanitarian exception (UNSCR 2615) which remains in place; however, the language of the carve-out is similar. Also, an important baseline was established by deeming the carve-out be included in all current regimes—including 1267—and any future regimes unless otherwise decided.

While the scope of the carve-out is broad and expands the lists of actors exempted in other regimes, it is not a blanket humanitarian exception. As per the resolution, it  includes “the United Nations, including its Programmes, Funds, and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations, international organizations, humanitarian organizations having observer status with the United Nations General Assembly and members of those humanitarian organizations, or bilaterally or multilaterally funded non-governmental organizations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals, or OCHA-coordinated humanitarian ‘clusters’ or their employees, grantees, subsidiaries, or implementing partners while and to the extent that they are acting in those capacities.” The resolution also enables each relevant committee to exempt other individuals as deemed appropriate and necessary. This white-list approach is meant to keep implementation in check and mitigate risks of abuse by “bad actors.”

The inclusion of the 1267 counterterrorism sanctions regime represents one of the most significant changes in policy direction for the UN Security Council. Concerns about aid diversion, material support, and benefits to designated terrorist groups looking to exploit humanitarian actors and non-profit organizations had prevented many states— including several permanent members of the Council—from supporting such an approach for many years. In addition, many states were unwilling to list al-Shabaab as a terrorist group under the 1267 regime, citing concerns about the negative impacts on humanitarian action. India, the sole abstention when the resolution was put to vote on December 9, reflected these concerns in explaining their vote.

However, in recognition of the concerns of many states and practitioners about aid diversion, particularly in contexts with designated terrorist groups, the resolution calls for these exempt providers “to use reasonable efforts to minimize the accrual of any benefits prohibited by sanctions […] to individuals or entities designated.” In fact, to uphold their own principles of impartiality and neutrality, most, if not all, humanitarian organizations listed in the resolution had already put in place rigorous due diligence mechanisms to mitigate risks of aid diversion, which will continue—and even be further reinforced—with the adoption of this humanitarian carve-out. For many organizations, this was done at great expense and capacity allocation, and remains an administrative and financial challenge for many smaller organizations, particularly those in complex conflict settings. Though some armed groups (including some designated terrorists) have exploited a few humanitarian organizations or charities, the proportion remains relatively small. But it remains important for states to continue implementing a risk-based approach to their non-profit sector to protect it from abuse, including terrorist financing abuse, as recommended by the Financial Action Task Force.

There are a few other aspects of Resolution 2664 that make it stand out, notably, the two-year review period introduced for the 1267 “counterterrorism” regime, and the role given to the Al-Qaida and Taliban Monitoring Team to collect information on the implementation of these measures and the potential diversion of resources to designated individuals or groups. While the resolution does not make clear what will happen after the two-year review period that was included in 1267, the establishment of the carve-out as a new baseline sets an important precedent, reflected not only in the vote itself but by the co-sponsorship of more than fifty countries.

Balancing Security and Humanitarian Action

For years, sanctions and humanitarian action have been presented as mutually exclusive. However, the resolution reaffirms that the delivery of principled humanitarian action need not compromise the goals of the sanctions regimes. It aims to strike a balance between effective targeted sanctions and respect for impartial humanitarian activities. It also reaffirms the legitimacy of sanctions as a key policy tool under the UN Charter, while reiterating core international humanitarian law (IHL) commitments. It includes the “intent clause” which had been added to almost all UN sanctions regimes since 2021 to “[emphasize] that such measures are not intended to have adverse humanitarian consequences for civilian populations,” but also adds “nor adverse consequences for humanitarian activities or those carrying them out.”  It even goes further, with a paragraph that clarifies that “the protection of humanitarian personnel and consignments for humanitarian relief operations and the non-punishment of any person for carrying out medical activities compatible with medical ethics,” which aims to address the stifling of humanitarian actors in contexts where designated terrorist groups are operating.

Further, for the first time, it considers the importance of “assessing potential humanitarian impacts prior to a Council decision to establish a sanctions regime,” a long-standing recommendation in line with the prerogative to design targeted sanctions measures. Such recommendations to more carefully assess the needs and impacts prior to the adoption of resolutions have increasingly been made in the area of counterterrorism, where a proliferation of resolutions has raised questions about needs and gaps, impacts, and effectiveness. The preambular paragraphs also note that sanctions are “intended to be temporary” and that they may be “adjust[ed] and terminate[d]” depending on the evolving situation on the ground and the need to mitigate humanitarian impacts, opening the way for possible sunset-clauses or criteria development for their adjustment and termination.

As the International Committee for the Red Cross (ICRC) put it, “This resolution helps reconcile UN sanctions regimes with key obligations of international humanitarian law (IHL), notably those governing humanitarian activities, and will help ensure that future sanctions regimes are designed and implemented in conformity with IHL.”

What Challenges Remain? 

For this historical resolution to make a difference, it must be recognized by states at their national level, and respected by all stakeholders supporting humanitarian activities, including donors as well as the financial and private sectors. Jan Engeland, the Secretary General of the Norwegian Refugee Council (NRC), wrote “governments must now give the resolution full effect in order to ensure it is as effective as possible, as quickly as possible”. How many—and how—countries transpose these obligations into domestic or regional legal framework will determine the impact of the carve-out. States, the private sector, and civil society organizations must expand their singular focus from creating changes in policy or legislation to pursuing multistakeholder engagement at various levels; building and maintaining trust among all actors; and addressing any issues in a joint manner.

This momentum could also lead national and regional sanctions authorities to adopt similar humanitarian carve-outs on their own sanctions regimes. This may be the case for the United States—which showed leadership on the issue as one of the two co-penholders of the resolution—and signals its interest to adopt global general licenses to its sanctions regimes, in addition to the recent licenses it adopted. This has the potential to be a game-changer, as the impact of the United States’ restrictive measures has been particularly strong on humanitarian activities. More could be done in Europe as well, which has its own humanitarian carve-out in regional frameworks, but implementation at the national level remains low.

The role of the UN Secretariat in supporting the implementation of the cross-cutting humanitarian carve-out will also be key. As per the resolution, Sanctions Committees are expected to issue an Implementation Assistance Notice (IAN) to support states with their implementation. While a tailored approach to each sanction regime may be appropriate to reflect context specificities, the UN Secretariat—including through the engagement of the UN Office for the Coordination of Humanitarian Affairs (OCHA)—should help develop a homogeneous and system-wide approach to guidance implementation to prevent disparate implementation among sanctions regimes. The reporting requirements in the resolution present the UN system with high expectations and no additional resources. To complete the task of reporting before each committee, OCHA should bolster its ability to be a bridge within the UN system between the humanitarian sector and sanctions entities. It will be important to draw on as many existing resources as possible to support the Emergency Relief Coordinator (ERC)/Head of the UN Office for the Coordination of Humanitarian Affairs (OCHA) with the collection of data and information, and to ensure that the reports can provide member states with credible evidence-based assessments of the impacts of the resolution. Strong briefing and reporting will be a determining factor to continue building trust among the various stakeholders and preserve current gains, particularly for the 1267 humanitarian exemption, which will be reviewed two years from now.

Finally, beyond the implementation of the cross-cutting humanitarian exemption, there are also a number of issues that need to be addressed in the longer term, including the wider intersection between counterterrorism and IHL, in particular as it relates to the protection of medical and humanitarian activities. Indeed, one area where there remains a lack of clarity is how this resolution will intersect with the binding obligations established by the Council with regard to counterterrorism legislation and measures. The humanitarian exemption covering the 1267 counterterrorism sanctions regime will not resolve some of the difficulties posed by national-level counterterrorism or material support legislation. Through UNSCR 1373 and a subsequent suite of Security Council resolutions, including resolution 2462 (2019), states have been required to criminalize support to terrorist organizations for any purpose, even in the absence of a terrorist act. The Holder vs. Humanitarian Law Project ruling in the United States, for example, established a broad definition of material support which, though challenged, has reportedly had a chilling effect on civil society actors engaged in humanitarian activities around the globe.

It will therefore be important for Council members to consider how the goals set out in UNSCR 2664 can be aligned with wider counterterrorism obligations, and how to build on the strong language provided in resolutions 2462 and 2482, which urge states “to take into account the potential effect of [counterterrorism] measures on exclusively humanitarian activities.” This also raises a question about the potential role of the UNSC Counter-Terrorism Executive Directorate (CTED), tasked with monitoring implementation of UNSC counterterrorism resolutions including UNSCR 1373 and 2462, through country-specific assessment visits and thematic analyses. Might there be a role for this expert body in collecting data and briefing member states and UN bodies through their cooperation with the 1267 Monitoring Team—as was done for UNSCR 2462—on the implementation of the humanitarian carve-out?

The two penholders of the resolution— the United States and Ireland—have affirmed the resolution will “save countless lives” and “will support [humanitarian organizations] in scaling up critical operations to deliver life-saving humanitarian assistance.” At a time when humanitarian needs are skyrocketing—with a 25 percent increase compared to 2022—this resolution will support impartial humanitarian organizations to reach people in need, and allows for the provision of humanitarian assistance to meet some critical basic needs without penalties under asset freeze measures. The decision has also been welcomed by humanitarian organizations, including the ICRC and NRC, and experts around the world. It is a big step in the right direction and a historical moment to applaud, but much remains to be done to ensure that the implementation delivers on its ambition, and that the Security Council builds on this success to foster greater cohesion and consistency across its peace and security measures.

Naureen Chowdhury Fink is the Executive Director of the Soufan Center and Non-resident Senior Adviser at the International Peace Institute. Agathe Sarfati is a Senior Policy Analyst at the Brian Urquhart Center for Peace Operations at the International Peace Institute (IPI).