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One Year On: where do we stand on the milestone humanitarian ‘carve-out’ in UN sanctions regimes?

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Picture: Giuseppe Cacace / AFP / Taken on October 19, 2023 – Humanitarian aid provided by the United Nations is loaded onto a United Arab Emirates Air Force C-130H-30 Hercules turboprop military transport aircraft at Dubai International Airport before departure for Cairo. Egypt announced on October 19 the ‘sustainable’ passage of humanitarian aid to the Gaza Strip through the Rafah crossing, as hundreds of aid trucks wait at the gates of the enclave being bombarded by Israel.

By Alice Debarre

One year ago, the United Nations (UN) Security Council adopted Resolution 2664, a landmark decision that provided for a cross-cutting humanitarian carve-out in all current and future UN sanctions regimes whose asset freezes and other restrictions had been found to gravely impact the delivery of humanitarian aid.

The resolution represented a major shift in the Security Council’s sanctions policy, with the potential to have a positive impact for humanitarian action across the world. The 2022 decision specified that to protect and safeguard the “timely delivery of humanitarian assistance” and “other activities that support basic human needs,” they “are permitted and are not a violation of the asset freeze”. Since the carve-out was put into effect, humanitarian organisations report some positive developments. However, more is needed to ensure the spirit of Resolution 2664 is carried forward.

The catastrophic levels of human suffering we are currently witnessing in places like Gaza, Sudan, and Ukraine may make discussions around Resolution 2664 and humanitarian carve-outs appear technical and removed from the reality of providing humanitarian aid on the ground in complex crises.

However, this resolution and the humanitarian carve-out it creates helps ensure that, in areas where UN-sanctioned entities or individuals operate, populations have a lifeline. In a world in which the International Committee of the Red Cross estimates that 175 million people live in areas controlled by armed groups, many of which are sanctioned by the UN, the impact of this is significant.

The adoption of Resolution 2664 was itself a major step, but the realisation of the Security Council’s intention to “provide clarity to ensure the continuation of humanitarian activities in the future” requires the resolution’s full and proper implementation. Over the past year, there have been a number of important developments on that front, with some member states going so far as to replicate the Security Council’s carve-out in their own autonomous sanctions regimes. This has led to the creation of a more conducive environment for humanitarian action, and the facilitation of some humanitarian activities that previously would have been hindered.

However, challenges and obstacles remain, notably due to the complex legal and policy frameworks that apply in contexts in which humanitarian actors operate, of which asset freezes in UN sanctions regimes are but one part. Furthermore, the carve-out instituted for the 1267 ISIL/al-Qaida regime is time-bound, with its renewal up for discussion at the end of next year. This introduces an element of uncertainty for the UN sanctions regime that has been described as having the widest impact on humanitarian action. One year on, it is therefore clear that continued efforts are needed to ensure the continued safeguarding of humanitarian action in UN sanctions regimes, and beyond.

Implementation of Resolution 2664

Resolution 2664 is legally binding, and as such, must be implemented by all UN member states. In their Interpretive Note for UN Member States on Security Council Resolution 2664, the Harvard Law School Program on International Law and Armed Conflict argue that this requires states to conduct a review of all relevant national measures, adjust any measures that might be in conflict with Resolution 2664, and communicate their obligations, interpretations and actions related to the resolution to all relevant stakeholders. Indeed, adapting laws and policies are necessary steps, but the changes made also need to be socialised across government actors, the private sector, and humanitarian organisations, in order to ensure they are effective.

Just a few days after the adoption of Resolution 2664, the United States (US) led the way in issuing or amending its own humanitarian carve-outs (called General Licenses), to apply across most of its sanctions regimes, including those that are not UN-based.

It also issued guidance documents, and reportedly set up a hotline and organised webinars to strengthen understanding of the new legal framework for both private sector and humanitarian actors. Canada also went beyond transposing the resolution in its UN-based sanctions to adopt a humanitarian carve-out in its counter-terrorism law.

The United Kingdom and the European Union (EU) have transposed Resolution 2664 in their UN-based regimes, and have adopted humanitarian carve-outs in some of their autonomous sanctions regimes, although they have not adopted a cross-cutting carve-out covering all their autonomous sanctions.

Most recently, the EU made the ground-breaking decision to introduce a humanitarian carve-out to asset freeze measures in ten EU autonomous sanctions regimes. Resolution 2664 has therefore provided momentum for change beyond what many advocates for humanitarian carve-outs may have hoped for. The general direction of travel is positive, and this has contributed to positive outcomes.

Resolution 2664 also requests organisations that benefit from the humanitarian carve-out to put in place and report on due diligence and risk mitigation measures, and to minimise any accrual of benefits to sanctioned entities. This part of the resolution has also started to be implemented, and will be a key part of ensuring a continued positive dynamic on this issue.

Improvement for Humanitarian Actors, Action on Ground

For the past several decades, humanitarian actors were exposed to the risk of legal liability if their activities were found to provide incidental benefits to UN-listed entities, or if aid was diverted by such entities. Resolution 2664 has created a much more conducive environment for humanitarian organisations to have a transparent and productive dialogue with the private sector, member states and donors on how to work together and mitigate some of the risks — as the resolution itself requests.

The increased legal certainty that the humanitarian carve-out has brought has created more comfort, both for the private sector and donor side in engaging with humanitarian actors in sanctioned environments, and for humanitarian actors, in sharing information about activities that can no longer be interpreted as falling afoul of financial sanctions.

There is also some evidence that the space for humanitarian action in sanctioned contexts is opening up. Some humanitarian organisations have reported that they had found it easier to transfer funds through the formal banking system for their operations in certain countries. In some contexts, like the Democratic Republic of the Congo, donors are reportedly more open to fund programs in areas where listed entities are operating. One organisation reported a reduction of investigations by banks of their payments in the months following the adoption of the resolution.

In some contexts, like Yemen or North West Syria, financial transactions with listed entities cannot be avoided, such as the payment of utility taxes for offices, or income and social security taxes for staff. Now, humanitarian organisations can operate in these contexts without fear of violating sanctions when paying these taxes.

However, just as it was difficult to identify the negative impact of a specific sanctions regime, it is not necessarily easy to attribute a positive impact exclusively to the existence of the humanitarian carve-out. Furthermore, Resolution 2664 is just one year young, and the huge shift it entails will require time to be implemented and to allow for the full force of its effect to be felt. Finally, UN asset freezes remain only one of the restrictive measures in place in sanctioned environments that create impediments to humanitarian action.

Challenges, Including For 1267 ISIL/al-Qaida Regime

A number of challenges to safeguarding the space for humanitarian action in sanctioned environments remain. Prior to the adoption of Resolution 2664, one of the reported sources of challenges for humanitarian actors in sanctioned environments was the existence of restrictive clauses in donor agreements. According to some non-governmental organisations (NGOs), this has not really changed since the adoption of Resolution 2664, and there is even a concern that donor agencies are starting to introduce more stringent procedures and conditions.

Another challenge is that the humanitarian carve-out in Resolution 2664 has limits to its scope. For example, it does not apply to UN sanctions beyond asset freezes, such as embargoes or travel bans. Recognising this, the Security Council in Resolution 2664 requested the UN Secretary-General “issue a written report on unintended adverse humanitarian consequences of Security Council sanctions measures.” In this report (S/2023/658), the UN Secretary-General highlights the fact that, despite the carve-out, humanitarian actors may still face financial hurdles and operational delays due to the application of UN and autonomous sanctions.

The carve-out also only applies to UN sanctions regimes, and does not extend to autonomous sanctions adopted by states or regional organisations, nor does it apply to UN counter-terrorism resolutions, and counter-terrorism measures adopted by states or regional organisations.

In many contexts in which humanitarian actors operate, there is a complex web of legal and policy measures in place, many of which do not specifically safeguard humanitarian action. Some counter-terrorism laws criminalise certain types of resource transfers that are authorised by Resolution 2264. This generates legal risk, uncertainty, and unpredictability, and means that the ability to provide humanitarian aid continues to be impacted.

For example, the limits in the scope of Resolution 2664 were visible in the humanitarian response to the earthquake that occurred in Türkiye and Syria in February 2023. Notably, the absence of standing humanitarian carve-outs to export restrictions in EU and US sanctions meant that humanitarian organisations could not bring into Syria some of the materials required to rebuild essential infrastructure. In addition, in areas controlled by Hayat Tahrir al-Sham, the implementation of humanitarian projects was curtailed, because US criminal laws prohibiting the provision “material support” to listed entities do not allow for certain transfers of funds.

Another challenge is that key actors, such as financial and other private institutions, may be unaware of humanitarian carve-outs, unclear of their scope, or simply reticent to engage as they continue to make choices based on profit and perceived risk. In Afghanistan, for example, a March 2023 Norwegian Refugee Council report found that private sector over-compliance persisted, despite the presence of significant safeguards.

One key element of uncertainty at the UN level is the renewal of the humanitarian carve-out for the 1267 ISIL/al-Qaida regime. The Security Council decided that the carve-out would apply for two years for this specific regime, and the extension of its application is therefore to be decided in December next year.

This is a key concern for humanitarian actors, because entities listed in the 1267 regime are present in a number of major humanitarian contexts, such as Syria, Iraq, Nigeria, Yemen, the Sahel, or Afghanistan. The importance of Resolution 2664 in safeguarding humanitarian action would therefore significantly be diminished should the humanitarian carve-out not be extended for the 1267 ISIL/al-Qaida regime.

Keeping Momentum to Safeguard Humanitarian Action

A series of parallel efforts will be required to ensure that humanitarian action is fully safeguarded in sanctioned environments. Resolution 2664 was a necessary step to ensure significant progress could be made in this area, but it remains insufficient.

First, a continued focus on the implementation of Resolution 2664 is required. States must give full effect to the resolution in domestic law, policy and practice. In this respect, it is key for governments and regional organisations like the EU to engage and provide guidance on the scope and implementation of the humanitarian carve-out with relevant private actors, together with humanitarian actors.

For example, trisector working groups in some countries have reportedly played an instrumental role in helping to avoid de-risking and over-compliance. There may also be a need to reflect on how financial and other private institutions can be incentivised to operate in sanctioned environments, given the challenges and costs it entails despite the existing humanitarian carve-outs.

For humanitarian actors, there is a need to continue to develop and showcase due diligence and risk management efforts, and to be proactive and transparent about the realities on the ground. This should not, however, lead donors towards being over-zealous and imposing conditions that would ultimately be counter-productive to the aim of Resolution 2664 of ensuring the continuation of humanitarian activities in the future.

Second, humanitarian carve-outs should be adopted in other sanctions regimes, and in counter-terrorism measures, at national and regional levels. Ideally, all humanitarian carve-outs should be harmonised, in order to create legal predictability for all actors involved.

For actors operating in sanctioned contexts, the full effect of a humanitarian carve-out cannot be felt as long as carve-outs are not included in all restrictive measures applicable in that context, and if they are not harmonised.

At UN level, as recognised in the UN Secretary-General’s September 2023 report on the unintended adverse humanitarian consequences of Security Council sanctions measures, other sanctions (beyond asset freezes) have an impact on humanitarian action, and the Council may need to adjust the design and scope of the humanitarian carve-out. The Council could also consider adopting humanitarian carve-outs in its counter-terrorism resolutions.

Third, the Security Council should renew the humanitarian carve-out in Resolution 2664 for the 1267 ISIL/al-Qaida regime at the end of 2024. Several Council members have pronounced themselves in favour of an extension, but efforts will be required to ensure dynamics around this discussion remain positive and productive.

Humanitarian actors will need to be forthcoming about aid diversion issues and other challenges on the ground; the due diligence measures they put in place; and their ability to mitigate risk. It will also be important to show the practical, positive impact the humanitarian carve-out has had, albeit keeping in mind the challenges and limits described above.

In stating that the conduct of principled humanitarian action justified some transfer of resources to entities listed under UN sanctions regimes, Resolution 2664 represented a momentous shift.

Despite its limits and remaining challenges, it has ensured a move away from the piecemeal approach that previously prevailed and hindered any significant progress in ensuring that humanitarian action was safeguarded in UN sanctions regimes. Moving forward, and with current (and possibly future) events making dynamics in the Security Council more challenging, it will be important to keep the Council’s intention and the spirit of Resolution 2664 alive and strong.

Alice Debarre is an independent consultant on humanitarian issues.

This article was first published on Global Observatory