Humanitarian exceptions: A turning point in UN sanctions

The UN Security Council has adopted a cross-cutting exception for humanitarian action in UN sanctions. What does it cover? What must happen next?

Expert comment Published 20 December 2022 Updated 21 December 2022 4 minute READ

The UN Security Council has removed an obstacle to humanitarian work. On 9 December 2022, it adopted a resolution establishing a cross-cutting exception to existing – and future – UN financial sanctions for funds or assets necessary for humanitarian assistance and activities to meet basic human needs. In a coup for multilateralism, the council has been able to act, even when the Russian invasion of Ukraine has caused paralysis in other areas.

Whilst sanctions are not intended to have adverse humanitarian consequences for civilian populations, aid agencies have argued for years that they do just this.

Resolution 2664 – introduced by Ireland and the US, co-sponsored by 53 states, and adopted by 14 votes in favour, with India abstaining – is the culmination of a decade of engagement between humanitarian organizations and states to find ways of avoiding the adverse impact of sanctions on the most vulnerable: people relying on humanitarian action for survival.

A reminder of the problem

Whilst sanctions are not intended to have adverse humanitarian consequences for civilian populations, aid agencies have argued for years that they do just this. UN financial sanctions prohibit making funds or other assets available directly or indirectly to designated persons or entities. Without adequate safeguards, incidental payments made during humanitarian operations, or relief consignments that are diverted and end up in the hands of such persons or entities can violate this prohibition.

Exceptions in Afghanistan and Haiti sanctions pave the way

Humanitarian actors have been decrying and documenting the impact of sanctions on their operations for years. Ensuring that sanctions did not hinder the COVID-19 response was a turning point in states’ willingness to address the issue.

The return to power of the Taliban in Afghanistan called for a more radical approach.

Movement at Security Council level was gradual, starting off with demands in the renewals of certain country-specific sanctions that measures taken by member states to give effect to them comply with international law. The return to power of the Taliban called for a more radical approach.

In December 2021, the Council adopted a broad exception to the Afghanistan financial sanctions, covering the provision, payment and processing of funds and assets necessary for humanitarian action and for activities to meet basic human needs. A similar exception was adopted – almost unnoticed – in October 2022 in the newly-established Haiti sanctions.

These developments, coupled with the determination of elected Council member Ireland to find solutions, paved the way for the adoption of SCR 2664.

The scope of the humanitarian exception

SCR 2664 introduces a clear and broad exception that addresses the key challenges financial sanctions pose to humanitarian action. The exception expressly refers to the different ways in which funds or assets are allowed to reach designated persons or entities: by the provision of goods or payment of funds by humanitarian actors themselves; by the processing of funds by financial institutions; and by the provision of goods and services by other commercial actors whose services are necessary for humanitarian action such as insurers and freight companies.

SCR 2664 introduces a clear and broad exception that addresses the key challenges financial sanctions pose to humanitarian action.

The exception is broad in terms of the excluded activities: the provision of funds and assets necessary for humanitarian assistance and activities to meet basic human needs. The UN Somalia sanctions – the first, and for a decade the only, regime to include an express exception – exclude funds necessary for ‘humanitarian assistance’.

SCR 2615 on Afghanistan added the expression ‘activities to meet basic human needs’.  These go beyond humanitarian assistance, and have been interpreted as including activities necessary to sustain essential social services such as health and education, preserve essential community systems, and promote livelihoods and social cohesion.  These are essentially development programmes.  ‘Activities that support basic needs’ should be understood in a similar manner in SCR 2664.

SCR 2664 is not, however, a ‘blanket’ exception.  It only applies to financial sanctions.  These are not the only type of restriction in UN sanctions that can hinder humanitarian action. For example, organizations that send commodities into the Democratic People’s Republic of Korea must still go through the notoriously slow procedure of authorization by the sanctions committee.  Similarly, authorizations are still required for import of demining materials that fall within the scope of arms embargoes.

Opportunities for further engagement and additional safeguards

Recognizing that additional challenges remain, SCR 2664 requests the UN Secretary-General to draft a report on unintended adverse humanitarian consequences of all types of restrictions in UN sanctions. He is asked to include recommendations for minimizing and such unintended consequences, including by the adoption of additional cross-cutting exceptions.

Humanitarian organizations have played a pivotal role in advancing the agenda. SCR 2664 is the result of their relentless engagement with the Security Council. It is not the end of the road. Other restrictions raise problems, and the Council has left the door open to finding ways of addressing them.

Humanitarian organizations have played a pivotal role in advancing the agenda. SCR 2664 is the result of their relentless engagement with the Security Council.

Humanitarian actors should seize this opportunity to provide information, identifying the problematic types of restrictions and their consequences on their operations as specifically as possible.

What happens next?

It is UN member states that implement UN sanctions. For SCR 2664 to be truly effective, it is imperative that states give effect to it in domestic law and practice. In doing so, they must not narrow the scope of the exception.

Recent experience in Afghanistan has shown that even in situations when significant safeguards exist, key actors may be unaware of them or unclear as to their precise scope. Financial institutions in particular are fast to de-risk when sanctions are imposed, and remain wary of conducting transactions that they perceive as high-risk even though exceptions permit this.

For SCR 2664 to be truly effective, it is imperative that states give effect to it in domestic law and practice. In doing so, they must not narrow the scope of the exception.

OFAC – the Office of Foreign Assets Control in the US Treasury – has issued extensive guidance on the Afghanistan sanctions in the form of frequently asked questions.  These have played an extremely important role in ensuring full advantage is taken of the exceptions.

States should follow this example, and adopt guidance to raise awareness of the exception in SCR 2664 and to clarify its scope.

A valuable precedent for autonomous sanctions

SCR 2664 only applies to sanctions adopted by the UN Security Council. It does not extend to autonomous sanctions adopted by states or relevant international organizations such as the EU.

Humanitarian considerations cont.

This said, the humanitarian and legal considerations that led the Security Council to adopt SCR 2664 – that sanctions are not intended to have adverse humanitarian consequences for civilian populations, and that in implementing sanctions, states must comply with international law, including international humanitarian law – apply equally to autonomous sanctions. In view of this, states and the EU should consider including a similar exception to autonomous financial sanctions.

A few years ago, it was US autonomous sanctions that posed the most significant challenges to humanitarian work. The Security Council was not acting, and progress seemed most likely at EU-level.

Dynamics have changed significantly.  The Biden administration ensured that any new sanctions it adopted were accompanied by general and specific licenses to facilitate humanitarian response.

States and the EU should consider including a similar exception in their to autonomous financial sanctions.

It is now the EU that is lagging behind. Earlier this year, the European Commission issued guidance that adopted an unwarrantedly broad interpretation of restrictions in financial sanctions. While the prohibitions relate to making funds or assets available to designated persons, the guidance extended it to include training, if the knowledge imparted could lead to financial benefits. It is hard to imagine any form of training or capacity-building which would not have this potential.

The EU is also adopting a restrictively narrow approach in the safeguards for humanitarian action in its autonomous sanctions. Efforts to broaden the safeguards in the Ukraine-related sanctions have fallen prey to divergences among EU members on these measures more generally.

Ireland made addressing the impact of sanctions on humanitarian action one of the objectives of its Council membership. By building broad coalitions and championing bold solutions that address the problems without undermining sanctions objectives, it achieved more than could ever have been hoped for. As it leaves its Council seat, it should turn its attention, experience and commitment to making similar progress at the EU-level.