Editor’s note: This article is part of Just Security’s ongoing coverage of the Taliban takeover in Afghanistan

Afghanistan is the latest in a string of countries facing humanitarian emergencies at a time when sanctioned or terrorist actors have gained de facto control as governing authorities. Although the specifics of governance, sanctions designations, and the humanitarian crises vary, in recent history, this club has included Yemen, Burma, Venezuela, Syria, the West Bank and Gaza, and Somalia, among others. Such changes in governing authority status are often accompanied, as in Afghanistan, by a significant deterioration in the security situation on the ground. This environment creates substantial challenges for the frontline international non-governmental organizations (INGOs) providing life-saving humanitarian assistance to affected populations. They must deal with security concerns and impeded flows of financing and supplies, while also navigating the sanctions and counterterrorism legal minefield.

As Adam Smith recently explained, under the current legal and regulatory framework, INGOs face serious risks if they do not wait for clear U.S. government authorization to continue their humanitarian assistance operations even in these emergency situations. It is time to flip the presumption. For the United States to honor the humanitarian principles drawn from international humanitarian law, it must establish a clear legal or regulatory path in advance for INGOs to continue critical humanitarian operations during these transitional times of crisis, unless and until the U.S. government affirmatively acts to restrict humanitarian assistance. (Disclaimer: I represent INGOs that provide humanitarian aid in Afghanistan.)

Critics may argue that pre-authorizing the continuation of humanitarian assistance in areas under sanctioned actor control will increase the risks of diversion to restricted parties and provide legitimacy to bad actors (see generally, this commentary by Jessica Trisko Darden, outlining tensions between terrorism and humanitarian assistance). Flipping the presumption, however, will not meaningfully increase such risks, and may provide additional tools to counter them. As a practical matter, the U.S. government’s practice is to authorize the continuation of legitimate humanitarian INGO activities in areas under sanctioned party control, either through general licenses (as in Yemen and Venezuela) or specific licenses issued to individual organizations or through USAID for its grantees (as in this license for assistance in the West Bank or Gaza). Providing such authorization in advance would not change the end result and would serve to allow continued delivery of assistance to at-risk populations during what is usually a time of significant crisis. As described below, this pre-authorization could be narrowly tailored to situations in which INGOs take steps to ensure that potential sanctioned party involvement is only incidental to the primary humanitarian assistance activities. Ultimately, should national security considerations counsel in favor of stopping otherwise pre-authorized humanitarian assistance, a U.S. government decision that serves to halt such assistance may carry greater political weight than would an affirmative decision to allow it to continue during the immediate crisis, which some may see in context as implicit support for a sanctioned actor.

Afghanistan’s Looming Humanitarian Crisis

Using Afghanistan as an example, once the Taliban seized de facto control of the government, a number of factors coalesced to compound the difficulty of providing humanitarian assistance. As international financial institutions began restricting financial flows into the country and freight forwarders stopped shipments to and from Afghanistan, INGO staff had to quickly pinpoint new potential areas of engagement with the Taliban to identify potential sanctions exposure. The day-to-day operation of their humanitarian assistance programming suddenly carried significant risk of providing incidental benefit to a terrorist group.

In addition, because the Taliban in Afghanistan is a Specially Designated Global Terrorist Organization under Executive Order 13224, U.S. persons (U.S. organizations, citizens, or green card holders) are generally prohibited from engaging in any transaction or dealings with them, such as by making or receiving contributions of funds, goods, or services to or for their benefit. For certain sanctions programs, the International Emergency Economic Powers Act (IEEPA) exempts donations of “food, clothing, and medicine, intended to be used to relieve human suffering” from the general prohibition against transactions. But E.O. 13224, which was issued in the immediate aftermath of 9/11, expressly prohibited such donations based on presidential determinations of a national emergency and military safety concerns.

As a result, INGOs in Afghanistan must now grapple with whether engaging in routine interactions with government entities, such as obtaining licenses to operate in the country, paying salary taxes for their employees, and making payments to utility companies, would violate U.S. law. Absent authorization or clear guidance from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), INGOs are faced with hard choices: do they continue providing critical humanitarian support and risk possibly violating U.S. sanctions law, or do they stop, thereby exacerbating an already dire situation? If INGOs stop programming, the effect is clear – humanitarian assistance stalls and the suffering increases for the people of Afghanistan. And when INGOs spend valuable resources on U.S. government outreach and engagement to obtain assurances that their actions will not put them in legal jeopardy, it diverts limited resources from the immediate crisis response to regulatory engagement.

Eventually, if history and recent U.S. government rhetoric about the importance of continued humanitarian support in Afghanistan are guides, the U.S. government may issue broad authorizations in the form of OFAC general or specific licenses, allowing for transactions with the Taliban “that are ordinarily incident and necessary to” critical foreign assistance activities (see, e.g., Yemen, Burma, and Venezuela General Licenses). As of August 31, OFAC had reportedly issued a specific license authorizing the U.S. government and its contractors and grantees to provide humanitarian assistance in Afghanistan, despite U.S. sanctions on the Taliban. Although OFAC apparently issued the license on August 25, INGOs were not notified of it until August 31 and have yet to receive the license itself. In the meantime, INGO operations remain stymied due to lack of clear U.S. government guidance and the relatively limited authorization, which thus far only applies to organizations implementing U.S. government grants or contracts. Such roadblocks are contrary to the goals and objectives of core humanitarian principles.

Four Key Humanitarian Principles

Derived from international humanitarian law (such as the Fourth Geneva Convention), four Humanitarian Principles underpin an international humanitarian response: humanity, neutrality, impartiality, and independence. The need for INGOs to scramble to request authorizations to continue their humanitarian assistance programming under U.S. sanctions law during times of upheaval is inconsistent with these principles, which provide for continued, impartial, and independent assistance, including during times of hostility and controversy. While the policymaking and interagency process runs its course, people living in Afghanistan face starvation, COVID-19 and other illnesses, and displacement. And as Smith has noted, by exacerbating the humanitarian crisis, the United States risks increasing the chances that Afghanistan becomes a haven for the very groups the U.S. invasion sought to remove.

Nicholas Miller and Doug Rutzen recently laid out several steps the United States should take to respond to the acute humanitarian needs in Afghanistan, including the important step of reviewing the laws and policies affecting humanitarian assistance for possible reform. One of the reforms Congress should adopt, as detailed below, is amending existing sanctions law to broaden the exemptions from prohibited activities to allow for humanitarian assistance operations to continue during times of crises (ideally with analogous changes to sanctions-related UN Security Council resolutions where relevant). Pending a legislative fix, the executive branch has a few existing executive and regulatory options, which are discussed below, for proactively addressing Afghanistan’s looming humanitarian disaster.

  1. Legislative Fix: Congress should amend IEEPA and the material support statutes at 18 U.S.C. 2339A and 2339B (which provide the basis for Foreign Terrorist Organization (FTO) designations) to exclude from the scope of prohibited activities transactions that are ordinarily incident and necessary to the donation or provision of goods or services intended to prevent or alleviate the suffering of civilians. Currently, IEEPA includes a limited, waivable carveout from sanctions for donations “of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering,” and the material support statute at 18 U.S.C. 2339A defines material support to exclude “medicine or religious materials.” Expanding these carveouts to extend more broadly to activities ordinarily incident and necessary to the provision of humanitarian assistance, while limiting the waiver authority to targeted situations, would present the most concrete mechanism to enshrine in U.S. law the continuation of humanitarian assistance during times of crisis. While there are various ways to draft such legislative fixes, the Humanitarian Assistance Facilitation Act of 2013, is one example of such a legislative proposal providing a carveout for humanitarian assistance.
  1. Regulatory Fix: Even absent legislative change, the executive branch currently has the legal tools to broadly authorize the continued provision of humanitarian assistance in the event a sanctioned entity assumes actual or de facto control. This could be done in a number of ways under IEEPA authorities, such as (a) through the issuance of a broad general license to address such scenarios in advance or (b) through amendments to sanctions regulatory definitions to clarify that transactions that are ordinarily incident and necessary to the implementation of INGO programming with sanctioned or terrorist entities acting in a governance capacity are not within the scope of prohibitions. To address potential national security concerns related to diversion or support for sanctioned parties, such authorization might require INGOs to submit documentation describing the measures they will take to guard against unintended diversion of humanitarian resources during such a crisis in order to be eligible to rely on the license authorization. In addition, OFAC could decide to limit the duration of such authorization for a set period after the designated organization assumes governance functions to allow for continuity of operations and time to carry out the decision-making process, without the confusion and stresses that lack of authorization presents. This would also allow the decisions to be better informed about the new status quo on the ground.
  1. Guidance: Short of legislative or regulatory amendments, issuance of clear OFAC guidance about the parameters allowing for continued INGO programming during such transitional periods would provide much-needed reassurance. In 2014, OFAC issued Guidance Related to the Provision of Humanitarian Assistance by Not-For-Profit Non-Governmental Organizations. This guidance recognized that U.S persons should be careful not “to provide financial, material, technological, or other services to or in support of” a designated terrorist entity, but this may be unavoidable in certain environments. OFAC noted that “[s]uch incidental benefits are not a focus for OFAC sanctions enforcement” and encouraged INGO reach out to OFAC where the provision of material support to a sanctioned party group may be unavoidable.
    The Treasury Department recently announced it was conducting a “top to bottom review of U.S. economic and financial sanctions.” As part of its review, the department should consider updating this guidance on humanitarian assistance to clarify that INGOs operating in areas that are under the de facto control of a sanctioned party and experiencing urgent humanitarian needs, like Afghanistan, are authorized to take all steps necessary (with appropriate diligence and guardrails) to implement their humanitarian programming. Treasury might further adopt the view that transactions that are necessary and incidental to carrying out humanitarian assistance programs are not transactions that “benefit” a sanctioned party. As a result, such transactions would not be subject to relevant sanctions prohibitions. This approach, however, does not provide the same degree of protection and reassurance as the prior two approaches and may not prove as helpful, particularly with respect to risk averse INGO business partners, such as international financial institutions. But it could provide a partial solution until a more permanent one is implemented. Even simply imposing a clear, short timeline for OFAC license decision-making in this context would be helpful from an INGO operational perspective.

In bringing the U.S sanctions regime in line with humanitarian principles, the U.S. government need not lose its discretion to remove authorizations and cut off assistance if policy and national security considerations so warrant. The proposed options above, however, change the focus of the U.S. government policy process so that humanitarian assistance can continue unhindered while the U.S. government evaluates whether and how to allow such assistance to continue in the future. This may have the effect of either speeding up the policy decision-making process if there is a clear national security concern with presumptively continuing humanitarian assistance, or freeing policymakers to deal with other issues, if the status quo humanitarian authorizations are sufficient. Either way, it will allow those on the front lines of the humanitarian response effort to focus on the protection of life and health during times of transitional crisis without the distraction of worrying about potential prosecutions against them.

Image: A nurse tends to a mother and her infant at the therapeutic feeding unit of NGO “Action contre La Faim” in Lashkar Gah, Helmand province on March 28, 2021. (Photo by ELISE BLANCHARD/AFP via Getty Images)