In December 2022, the United Nations Security Council adopted Resolution 2664, creating a cross-cutting humanitarian carve-out for asset freezes under all UN sanctions regimes. Earlier this month, the Security Council unanimously adopted Resolution 2761, extending the application of the carve-out to the 1267 ISIL/al-Qaida counterterrorism regime indefinitely. Resolution 2664 was a milestone decision that represented a fundamental policy shift within the council aimed at safeguarding humanitarian action from the unintended effects of sanctions. Resolution 2761 is just as significant.

Resolution 2664 affirmed that “the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs” by select humanitarian actors “are permitted and not a violation of the asset freeze” measures. The Security Council decided to apply this carve-out indefinitely for all UN sanctions regimes, except for the 1267 ISIL/al-Qaida regime, which it limited to two-years.

In Resolution 2761, the council decided that the humanitarian carve-out “shall continue to apply” to the ISIL/al-Qaida regime and “reiterates the importance of monitoring the implementation of these provisions consistent with resolution 2664.”

A Recap of the Last Two Years

In the two years since the adoption of Resolution 2664, three key developments contributed to the decision taken by the council earlier this month.

First, various states, including the United States (US) and the United Kingdom (UK), as well as the European Union (EU) have taken steps toward the implementation of Resolution 2664. The US, UK, and the EU have also taken steps beyond what was required under the resolution to introduce humanitarian carve-outs into their non-UN sanctions regimes, also called autonomous sanctions regimes. Measures have also been taken to help ensure the humanitarian carve-outs adopted are known, understood, and operationalized, including through the development of guidance and the conduct of explanatory webinars.

Second, there has been documented evidence of the positive impact that Resolution 2664 has already had on humanitarian actors and their ability to operate, including in areas where the ISIL/al-Qaida regime applies.

Third, despite the concerns expressed by some states, humanitarian organizations, states, and UN sanctions experts have reported seeing no evidence that the humanitarian carve-out has led to aid diversion or a significant increase in incidental benefits to listed entities.

Given these positive developments, humanitarian organizations, civil society, the UN Office for the Coordination of Humanitarian Affairs (OCHA), some states, and counterterrorism practitioners, called for the Security Council to extend the application of the carve-out to the ISIL/al-Qaida regime.

The Significance of an Indefinite Extension

It is notable that the Security Council’s decision in Resolution 2761 was unanimous. Concerns related to aid diversion and benefits to designated actors have prevented the council from instituting a cross-cutting humanitarian carve-out in the past. The negotiations two years ago on Resolution 2664 were “difficult,” with the inclusion of the ISIL/al-Qaida regime being particularly contentious. Due to concerns raised by China, France, India, Kenya, and Russia on the inclusion of the ISIL/al-Qaida regime, Security Council members compromised on the two-year time limit. India still abstained from the vote, citing apprehensions over terrorist groups misusing carve-outs.

In stark contrast, the negotiations on Resolution 2761 were “relatively smooth,” with only Russia appearing to call for another two-year time limit for the application of the carveout to the ISIL/al-Qaida regime, rather than an indefinite extension. Russia also called for additional language on the accrual of benefits, while France called for language on strengthening reporting mechanisms. These positions seem to have been assuaged by the penholders–the United States and Switzerland–which added previously agreed language on accrual of benefits and new language proposed by France on reporting by the UN emergency relief coordinator.

The unanimity of the vote sends a clear political signal that humanitarian norms and principles apply everywhere, including in counterterrorism contexts. The application of the humanitarian carve-out to the ISIL/al-Qaida regime is the most consequential component of Resolution 2664. The ISIL/al-Qaida regime applies to actors in some of the world’s most challenging humanitarian contexts, including Syria, Afghanistan, Yemen, and the Sahel. Over 100 million people are in need of humanitarian assistance in countries in which ISIL and al-Qaida are present.

Had the Security Council decided to end the carve-out for the ISIL/al-Qaida regime, there would have been serious implications for humanitarian operations and, most importantly, for the people in need of relief. Critically, this decision harmonizes the application of the carve-out across all UN sanctions regimes, providing legal clarity, predictability, and reassurance for humanitarians, states, and the private sector.

What’s New in Resolution 2761?

Resolution 2761 largely reiterates the language contained in Resolution 2664. However, there are some subtle additions that warrant further examination.

First, Resolution 2761 emphasizes monitoring and reporting. While it reiterates the role of the 1267 Committee in monitoring the implementation of the carve-out, it also incorporates new language. Paragraph 1 reiterates “the importance of monitoring the implementation of these provisions consistent” with Resolution 2664. Paragraph 3 notes that, in addition to the information listed in Resolution 2664, briefings by the [emergency relief coordinator] should also include information on “the impact on beneficiaries of humanitarian activities.”

Second, Resolution 2761 references abuse of carve-outs and the role of humanitarian actors in addressing the accrual of benefits for designated actors. This includes a reference in paragraph 3 to “reported cases of abuse of non-profit organizations, including as front organizations to raise, move or transfer funds by and for ISIL (Da’esh), Al-Qaida and their affiliates.” Paragraph 4 notes that humanitarian organizations should “use reasonable efforts to eliminate or in any event minimize” the accrual of benefits to designated actors. This is a change from Resolution 2664, which only stated that humanitarians should “use reasonable efforts to minimize” the accrual of benefits, not to “eliminate” them.

These additions have several implications.  With its emphasis on the need for monitoring and reporting, the resolution will require humanitarians to continue to invest in collecting the needed data and information—a sensitive, resource-intensive, and often challenging task. Similarly, the requirement to use reasonable efforts to “eliminate or in any event minimize” the accrual of benefits to designated actors means humanitarians are expected to continue to invest in and share information on risk management and mitigation. While this is important, humanitarian actors have decades of experience working in complicated contexts and establishing and implementing such measures to ensure aid is going to the people who need it. The desire to reduce risk should not lead to measures that would prevent humanitarian organizations from delivering assistance in line with humanitarian principles or unnecessarily divert time and resources away from humanitarian work. This would be counterproductive to Resolution 2664’s goal of ensuring the continuation of humanitarian activities. Ultimately, more risk sharing is needed, and risk management should not fall entirely on humanitarian actors.

Broader Challenges

Resolution 2664 has already had a positive impact on humanitarian operations but requires further implementation, socialization, and operationalization to realize its full potential. Extending the application of the carve-out to the ISIL/al-Qaida regime indefinitely is a critical step in the right direction.

However, Resolution 2664 and Resolution 2761 only apply to asset-freeze measures under UN sanctions regimes. This is just one piece of a much broader and complex landscape of legal regulations and requirements that humanitarians must navigate. Humanitarian organizations and civil society organizations have regularly drawn attention to the challenges that autonomous sanctions and counterterrorism measures can generate for humanitarian operations. These challenges include a “chilling effect” on humanitarian actors that self-regulate beyond what is required and “de-risking” and overcompliance by the private sector, including financial institutions, that restrict or refuse to provide services to humanitarian actors due to the perceived risk in contexts where sanctions apply.

Getting the indefinite extension of the carve-out for the ISIL/al-Qaida regime was a major win for humanitarian operations and the people they aim to serve. However, it does not solve every challenge. The next steps are, first, to further implement, socialize, and operationalize Resolutions 2664 and 2761 and, second, to address the elements of the broader regulatory framework that continue to impede the timely and effective delivery of humanitarian assistance.

Lauren McGowan is a Policy Analyst at the International Peace Institute.  Alice Debarre is an independent consultant on humanitarian issues.