Editor’s note: This article is part of Just Security’s ongoing coverage of the U.S. military withdrawal and Taliban takeover in Afghanistan.

Helping Those Who Remain

As the Afghan tragedy unfolds, the immediate focus is triage: seeking to save as many lives as possible. In addition to the urgent need to help at-risk people access the airport and board evacuation flights, there is a longer-term need to provide humanitarian assistance to the tens of millions of people who will stay in Afghanistan.  On August 23, Ned Price, spokesperson for the United States Department of State, affirmed that the United States can and will continue to provide assistance to the people of Afghanistan through non-governmental partners on the ground.

According to the United Nations Inter-Agency Standing Committee, the highest-level humanitarian coordination forum of the U.N. system, half of Afghanistan’s population, including 10 million children, already required humanitarian assistance at the start of the year.  Those numbers have risen sharply in recent weeks and will climb even further as international assistance to the Government of Afghanistan is suspended.  The economy, half of which derives from international aid, is on the brink of collapse.  Medical and other critical supplies are already in short supply, and food prices are rising.  Without assistance from other countries, millions of Afghans, particularly women and children, will suffer.  Prior experience also tells us that heightened insecurity can create fertile ground for terrorist recruitment.  The need for international humanitarian assistance is acute.

But there is a challenge facing those who would help the people of Taliban-controlled Afghanistan.  The Taliban has been designated by the United States as a Specially Designated Global Terrorist since 2002.  And it is likely that any Taliban government will include others, such as the Haqqani Network, subject to U.S. counter-terrorism sanctions.  These sanctions prevent the provision of financial or other resources to designated groups or individuals, essentially cutting them off entirely from the U.S. financial system and, as Adam Smith has explained on these pages, “criminalizing almost any transaction with a U.S. nexus involving the Taliban.”

The legal landscape in the United States on terrorism finance and support is complex, derived from statute, executive orders, and implementing regulation.  While these authorities are intended to prevent and punish the provision of support to terrorists, they have also impeded the ability of humanitarian and civil society organizations, whether funded by governments or international philanthropy, to assist people living in areas under the control of terrorist groups, or where such groups have a significant presence. The negative impact of counter-terrorism finance measures has been well documented and is not an isolated occurrence.  In one concerning example, the 2008 inclusion of al-Shabaab on the United States’ sanction lists resulted in an 88 percent reduction of U.S.-funded humanitarian assistance in portions of Somalia controlled by al-Shabaab.

Learning from the Past

If past is prologue, we may soon see a catastrophic reduction of humanitarian aid in Afghanistan when it is needed most.  Concerns of these same types of impacts on humanitarian assistance in Yemen recently prompted the Biden administration to reverse a Trump administration decision to designate the Houthis in Yemen as a Foreign Terrorist Organization.  Sanctions regimes have too often left humanitarian workers and their organizations in fear of criminal prosecution, led banks to deny services to civil society organizations operating in conflict zones, and subjected those organizations to compliance burdens and, at times, legal jeopardy.

The withdrawal from Afghanistan is already accompanied by discussion of how the United States will sustain its counterterrorism efforts there.  In recent days both President Biden and Secretary of State Antony Blinken have spoken of the United States’ intent to maintain a “laser-focus” on counterterrorism in Afghanistan.  Already, according to the president, the United States has begun working with NATO allies to ensure Afghanistan does not become again a base for international terrorism.  We expect in the coming weeks and months that there will be more focus on denying terrorist groups operating in Afghanistan the ability to carry out terrorist operations.  As observed by the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, the terrorism threat from Afghanistan is real and this work must be done.

But while maintaining their counterterrorism efforts in Afghanistan, the United States and its allies should learn from the lessons of the past – including the unintended consequences of counterterrorism-related financial sanctions in other contexts – and avoid imposing excessive burdens on civil society and cross-border philanthropy trying to address the Afghan humanitarian crisis.

Don’t Wait to Act

Humanitarian needs are acute, and there is an urgent need for civil society and donors to ramp up their response.  The United States should help by taking the following steps:

1. Open a line of communication with humanitarian and civil society organizations: Convene a dialogue between civil society and relevant U.S. government agencies, including the Department of the Treasury, U.S. Agency for International Development (USAID), and the Department of State.  The dialogue should address the concerns, legal and otherwise, that civil society and non-governmental groups have about continuing their humanitarian operations in Afghanistan.  The United States should commit to addressing key issues with action and to sustained dialogue with civil society on ways to facilitate their ongoing work to assist those in need in Afghanistan.

2. Clarify the legal status of humanitarian assistance and other forms of support: The sanctions in place against the Taliban and other terrorist organizations in Afghanistan, combined with the control those same groups now exercise over most areas of the country, have created concern among civil society organizations about the extent to which they can legally carry out humanitarian work in Afghanistan.  The United States should act to ensure that humanitarian exemptions are in place to allow humanitarian organizations, foundations, and other civil society organizations to continue to legally assist the people of Afghanistan.

One option would be to provide specific licenses to groups that are already providing, or planning to provide, humanitarian and other forms of support to the people of Afghanistan.  To work, however, this could require a large number of licenses and licenses would need to be issued expeditiously.  The United States should also consider providing one or more general licenses, which authorize prescribed activity for a class and could reduce the burden of specific licenses.  Any general license would need to be broad enough to encompass transactions involving the Taliban that would be necessary to support ordinary humanitarian actions, including the transfer of funds, securing of licenses, and payment of import duties and fees.  This should be accompanied by guidance clarifying which entities are considered to be part of the Taliban and addressing other interpretation issues that could frustrate efforts to provide lifesaving assistance.

And as discussed at length here, the United States should also consider other options, especially if more rapidly achievable, including issuance of a “comfort letter” for humanitarian organizations. The United States should also make high-level public statements and implement other ideas coming out of the consultation with civil society suggested above. Financial sector regulators should in turn provide banks and other financial institutions with guidance on the permissibility of providing financial access for civil society organizations and donors responding to the crisis in Afghanistan.

3. Begin a policy review of laws and regulations affecting humanitarian assistance: The legal landscape of prohibitions involving designated terrorists is complex and, in some cases, opaque.  Ensuring that support to the people of Afghanistan is not only forthcoming but sustainable will require a review and rethink of how U.S. laws, regulations, and policies affect support provided to innocent civilians in zones under the control of terrorist groups – or in areas where those groups have control over financial transactions.  Specifically, the United States, in close consultation with civil society, should review relevant laws, regulations, and policies to ensure that provision of food, water, medicine, and shelter to the people of Afghanistan is unambiguously permitted under U.S. law.  Simultaneously, the United States should use influence with partners, such as the European Union and allied states, and its position on the United Nations Security Council to promote expanded humanitarian exemptions from prohibitions in each of those jurisdictions to ensure unambiguously that civil society organizations will be able to provide assistance to the people of Afghanistan.

We recommend that steps 1 and 2 occur urgently, and we recognize that step 3 will take more time. We also acknowledge the incredible amount of energy and effort going into evacuating those in Afghanistan in immediate danger.  We hope, however, that these recommendations will help those Afghans who remain in Afghanistan, facing the harsh realities of Taliban rule, by increasing the likelihood that they will have access to humanitarian and other forms of assistance.

Image: United Nations Children’s Emergency Fund (UNICEF) members label a shipment containing Astrazeneca Covid-19 vaccines donated by the French government after it arrived at the Kabul airport in Kabul on August 8, 2021. The takeover of Kabul by the Taliban and mass evacuations from the airport have interrupted shipments of Covid-19 vaccines and other humanitarian aid since mid-August. (Photo by WAKIL KOHSAR/AFP via Getty Images)