In the days immediately following the first Kahramanmaras earthquake, emergency aid workers arrived in Turkey by the hundreds with search dogs, backhoes and earth movers, pallets of water, and tents. According to State Department Spokesperson Ned Price, within two days the United States had sent Turkey “[e]mergency responders, hazardous material technicians, engineers, logisticians, paramedics, and planners, along with 170,000 pounds of specialized tools and equipment.” This immediate aid to Turkey was followed by “concrete breakers, generators, medical supplies, tents, water, and water purification systems.”
Just across the border in Syria, members of the White Helmets dug out the wounded with shovels and their hands. They did not have enough emergency workers and heavy machinery to pull thousands of people trapped in their collapsed homes.
Syrian president Bashar al-Assad blamed the lack of humanitarian response in Syria on sanctions against his government, particularly U.S. sanctions. The real barriers are more nuanced. Physical access itself proved to be a major obstacle in the first week following the quake, causing the UN to pause its regular aid deliveries because of road damage and logistical challenges. Competing authorities that control various portions of northwest Syria denied each other access to areas under differing control. U.S. sanctions do generally prohibit transactions involving Syria, but broad pre-existing authorizations allow humanitarian assistance-related transactions. The U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued an additional earthquake relief-related authorization on February 9, 2023.
U.S. export controls implemented by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) pose a more significant barrier to the delivery of rapid emergency assistance beyond the provision of food and basic medicine. As a result, although USAID had provided $50 million in new funding to meet urgent humanitarian needs in northern Syria, those implementing USAID-funded (and other) assistance have encountered delays in bringing equipment to Syria necessary to carry out their work.
Addressing the challenges to Syria earthquake relief requires, first, understanding the physical and political barriers to getting foreign aid into Syria immediately after the earthquake and the efforts made so far to overcome those barriers. From there, we turn to the scope of U.S. sanctions and relevant exceptions. Finally, and most substantially, we describe U.S. restrictions on export or reexport to Syria of any item subject to U.S. export controls, aside from food and certain medicine. We propose a path forward to remove export control obstacles, while still ensuring appropriate monitoring and oversight.
I. Closed Border Crossings and Blocked Transportation
The UN Office for the Coordination of Humanitarian Affairs estimates that 9 million people in Syria live in earthquake-affected areas. Although primarily under Assad government control, the region of northwest Syria impacted by the earthquake hosts areas under the authority of multiple groups, from Kurdish forces, to Turkish-backed rebel groups, to Islamists.
Areas under Assad government control represent the green area in the CFR map below. Kurdish forces (in dark yellow on the map), under the banner of the Syrian Democratic Forces (SDF), control a large swath of northern Syria, primarily to the east of earthquake-affected areas. Turkey, meanwhile, sponsored several groups’ push into Kurdish-controlled territory, and Turkish-backed groups now control two separate areas of the northwest region, colored purple in the map, including some of the areas most heavily impacted by earthquake destruction. Finally, an Islamist descendant of al-Qaeda groups fighting in Syria’s civil war, Hayat Tahrir al-Sham (HTS), controls a portion of the far northwest of the country that includes Idlib.
IMAGE: Map of the earthquake-affected areas and parties in control in Syria (Graphic by CFR, with alternations)
Over the past several years, aid and trade arrived in Syrian opposition-controlled areas through the Bab al-Hawa border crossing between northwest Syria and Turkey, which has represented the only humanitarian aid corridor authorized under UN Security Council Resolution 2165, as most recently extended in January 2023 under UNSCR 2672. Russia and China have previously vetoed the use of any other border crossings for this purpose.
For two days after the earthquake, Bab al-Hawa was closed, because of earthquake damage. And for a week following the earthquake, Assad demanded that all aid go through his government in Damascus, rather than through northern checkpoints with Turkey. HTS, meanwhile, refused Syrian regime offers of aid into its territory, indicating that it would only accept aid via Turkey. Turkey, which had stymied aid from Kurdish-controlled regions of Deir al-Zour, Raqqa, and Manbij into Turkish-controlled regions eventually allowed the assistance a week after the earthquake after delivery trucks removed signs indicating that the aid had originated from the Kurdish-controlled areas. Around the same time, on Feb. 14, the UN announced that Assad had agreed to the opening of two more northern border crossings between Turkey and Syria in opposition controlled-areas: Bab al-Salam and Bab al-Rae’e.
Thus, while some physical barriers and political bottlenecks to the delivery assistance remain, they have eased in the weeks since the earthquake.
II. Sanctions and Humanitarian Exemptions
Sanctions add additional challenges on top of the physical barriers and geo-political issues. The United States has imposed territory-wide sanctions against Syria and has specifically sanctioned the Syrian regime, terrorist-controlled opposition groups, and various Syrian individuals and companies. Such sanctions can result in compliance challenges for those on the front lines of delivering humanitarian assistance. They also make it harder to transmit funding for aid projects because financial institution de-risking decisions make traditional banking unavailable in-country. This section describes these U.S. sanctions and the broad exemptions for earthquake relief.
In addition to U.S. primary sanctions, memorialized at 31 CFR part 542, which generally prohibit transactions involving Syria, its government, and Syrian petroleum products, the Caesar Syria Civilian Protection Act of 2019 (“Caesar Act”) provides for the imposition of so-called “secondary sanctions” on foreign persons that facilitate activities of the Syrian regime or profit from the Syrian conflict. Under the Caesar Act, even non-Syrian entities are at risk of sanctions designation if they meet its criteria. Additionally, opposition groups in northern Syria like Hayat Tahrir al-Sham are designated as Specially Designated Global Terrorists and Foreign Terrorist Organizations, imposing additional sanctions applicable to transactions in areas under their control.
Despite the broad scope of U.S. sanctions, OFAC has issued numerous, expansive general licenses (authorizations on which anyone can rely, so long as they meet all criteria) such that U.S. sanctions should not create a meaningful barrier to humanitarian assistance activities in Syria. In particular, three days after the earthquake, OFAC issued Syria General License 23, which authorizes “all transactions [with the Government of Syria] related to earthquake relief efforts in Syria that would otherwise be prohibited” under the Syria Sanctions Regulations. As OFAC clarified in a subsequent Compliance Communiqué, the 180-day license permits, among other things, all fundraising for earthquake relief in Syria. In particular, the license explicitly states that it encompasses “the processing or transfer of funds on behalf of third-country persons to or from Syria in support of the transactions” for earthquake relief and authorizes banks to rely on the representations of the funds transfer originator that the transfer meets the terms of GL 23 absent knowledge to the contrary. These provisions should reassure banks that they can and should permit financial transfers for earthquake relief.
Prior to the earthquake relief general license, OFAC had also issued a number of other licenses that served to authorize a range of humanitarian and other foreign assistance activities under the patchwork of sanctions applicable to Syria. For example, as part of a systematic effort to implement UN Security Council Resolution 2664, which carved out humanitarian assistance and other activities that support basic human needs from UN sanctions programs, OFAC issued general licenses across the range of OFAC sanctions programs authorizing otherwise prohibited activities for: (1) the official business of the U.S. government (including by grantees implementing U.S. awards) and (2) international organizations and entities, (3) transactions in support of certain NGO activities, including humanitarian projects to meet basic human needs in Syria, and (4) the provision of agricultural commodities, medicine, medical devices, and associated parts and software. Additionally, Syria General License 22 broadly authorized transactions in non-regime held areas of northeast and northwest Syria in a variety of economic sectors, including agriculture, power grid infrastructure, construction, water and waste management, and health services.
As a result of these broad and varied sanctions authorizations, while sanctions compliance remains an important element of any Syria assistance program, U.S. sanctions do not create a significant barrier to the implementation of earthquake response efforts.
III. Export Controls
OFAC’s Compliance Communiqué states that General License 23 allows for “removing rubble from collapsed buildings; stabilizing damaged buildings; stabilizing or repairing roads and other critical infrastructure damaged in the earthquake; remediation of pollution or environmental damage; repairing or rebuilding damaged hospitals and schools in earthquake-affected areas.” But without a license from the U.S. Commerce Department’s Bureau of Industry and Security, organizations may be unable to supply the necessary equipment to carry out these activities. BIS controls exports to Syria via the Export Administration Regulations (EAR), which describe controls on the export, reexport, or transfer of commercial items that are within the scope of U.S. export jurisdiction.
Although some level of export control applies to every country, the United States imposes the most expansive export controls on Syria, Iran, Cuba, and North Korea. For these countries, U.S. export controls apply to both U.S.-origin items, as well as items exported from other countries that contain just 10 percent U.S.-origin content (generally calculated based on the value of the item and its constituent parts). As a result of this 10 percent content threshold, it is frequently difficult for organizations to avoid U.S. export control jurisdiction, even for items procured from overseas. BIS therefore serves as a gatekeeper for the myriad products, software, and technology necessary to provide disaster response.
A. History: The Syria Accountability and Lebanese Sovereignty Restoration Act of 2003
Many of the broad controls on U.S. exports to Syria date to the 2003 Syria Accountability and Lebanese Sovereignty Restoration Act (Syria Accountability Act). The Syria Accountability Act aimed to compel Syria to comply with various foreign policy goals, from ceasing the provision of support to international terrorist groups, to withdrawing from Lebanon (which it did in 2005), to ceasing missiles and weapons development-related activities, to ending Syrian support for terrorist activities in Iraq. It did so by imposing a range of restrictions on Syria, which apply, unless waived, until a presidential determination that certain criteria are met.
- Prohibitions: Section 5(a) of the Syrian Accountability Act provides that unless the President determines and certifies to Congress that Syria has met the foreign policy goals described above, the President “shall prohibit the export to Syria of any item, including the issuance of a license for the export of any item, on the United States Munitions List or Commerce Control List, of dual-use items in the Export Administration Regulations.” It also required the President to impose two or more additional sanctions which, in practice, have included a prohibition on the “export of products of the United States (other than food and medicine) to Syria.”
- Waiver: Section 5(b) of the Syria Accountability Act allows the President to waive these export controls upon a determination and submission of a report to Congress that doing so is in the national security interest of the United States.
President George W. Bush implemented the Syria Accountability Act through Executive Order 13338 of May 13, 2004, delegating the Section 5(b) waiver authority to the Secretary of State.
B. Syria Export Controls in Practice
The Commerce Department implemented the broad Syria Accountability Act export control prohibitions via the EAR, including a Syria embargo-specific section at 15 CFR § 746.9. As these regulations specify, with limited exception, U.S. export controls prohibit the export of virtually everything other than food and basic medicine – both specifically defined terms – to Syria. (Informational materials such as books and other media, publicly available software and technology, and technology related to patent applications are also allowed because they are not subject to the EAR or its controls.) Export licenses to Syria are “subject to a general policy of denial” under § 746.9(c)(1) unless waived under the Syrian Accountability Act waiver authority.
BIS authorizations take the form of specific licenses or license exceptions, which carve out specified activities from licensing requirements. There are only five license exceptions applicable to Syria exports, none of which are particularly helpful for humanitarian disaster relief efforts. They encompass exceptions for news media, U.S. government personnel, limited software exports, personal baggage, and civil aircraft while in transit.
Given the limited nature of applicable license exceptions, assistance organizations must generally apply to BIS for export licenses on a case-by-case basis. BIS only authorizes such specific license for the range of activities authorized under the Section 5(b) waivers. These include the waivers that the president issued in EO 13338 and a June 12, 2013 waiver issued by the Secretary of State. Licensable exports that are most relevant for earthquake relief include:
- Medicines that are described on the Commerce Control List, which include vaccines, non-NSAID pain killers including opioids, and medical devices;
- Telecommunications equipment and associated computers, software, and technology;
- Items in support of United Nations operations in Syria; and
- Items necessary for the support of the Syrian people, including those related to
- water supply and sanitation,
- agricultural production and food processing,
- power generation,
- oil and gas production,
- construction and engineering,
- transportation, and
- educational infrastructure.
Thus, the types of equipment that organizations need for aid after the earthquake may conceivably be brought into Syria. However, they require an individual license to do so.
In order to apply for a license, at a high level, an organization must (1) identify each of the products, software, or technology it intends to export, reexport, or transfer to Syria; (2) assess whether they are subject to US export controls; (3) identify the export control classification numbers (ECCNs) for the items subject to US export controls; and (4) prepare and submit a license application to BIS describing the controlled items to be exported, reexported, or transferred, and their use. Absent clear information from a product manufacturer, assessing whether an item is subject to U.S. export controls and then determining that item’s ECCN is a time and labor-intensive and technical process. It often involves enlisting the expertise of a third-party consultant or attorney. The application process is time and resource intensive, serving as a barrier to aid organizations’ ability to rapidly deliver disaster assistance.
C. Better export licensing
On Feb. 17, 11 days after the earthquake first hit, BIS announced that it would expedite license applications for both Turkey and Syria. It did not provide a time frame or say how long such license applications would take to process. In practice, it appears to be taking a matter of weeks for the U.S. government to review and process each application. While this timeframe is faster than the standard BIS license review process, it is still too slow for a humanitarian crisis. This section outlines options to address these barriers to the provision of lifesaving humanitarian assistance in a timely manner.
More License Exceptions: With response times of critical importance, license exceptions are the best mechanism to allow for the quick delivery of assistance since they allow for the export of items without the need to apply or wait for BIS review. License exceptions have historically been limited in the Syria context due to concerns about diversion to unintended actors and the unpredictable nature of the environment. We therefore do not propose that BIS implement a broad range of license exceptions but rather recommend targeted expansions of the temporary export exception (i.e., license exception TMP) to allow for the time-limited export of disaster relief-related equipment for the earthquake response, as well as future humanitarian response efforts. Such a limited exception lowers risk of diversion but would make a material impact to the ability of aid organizations to carry out their work.
For countries other than Syria, Iran, North Korea, and Cuba the “tools of the trade” temporary export exception at 15 CFR 740.9(a)(1) allows for the export of commodities and software for exporters or their employees to use for their work while abroad. This license exception requires that the items remain under “effective control” of the exporter or the exporter’s employees while in use. If not consumed or destroyed in the normal course of use, items must be returned to the country of origin as soon as possible, and no later than a year after export, or the exporter should apply for a longer-term specific license. This license exception is not currently available in Syria.
Such a license exception for humanitarian aid in Syria would increase aid worker safety and would enable them to carry out their work within the critical window for a humanitarian response. Specifically, it would allow for the immediate export of communication devices and critical earthquake relief tools, such as construction equipment, water pumps, and power supplies at the time of crisis, rather than weeks later. Such items would remain under aid organization control while in-country and be returned following their use, thereby minimizing the risks of unauthorized diversion. In the event an exporter required the use of an item for a longer period, they would have ample time in which to apply for a license, while still retaining the use of the equipment in the meantime.
If a tools of the trade exemption for Syrian humanitarian assistance had been in place at the time of the earthquake, aid organizations could have brought the necessary assistance tools into Syria as soon as the physical access restrictions were resolved. Instead, they must now wait the weeks or months necessary to prepare and then receive a response to a specific export license application.
To the extent the requirements of the “tools of the trade” exception are insufficient to account for diversion concerns, the additional parameters of the “news media” exception (which does currently apply to Syria) in paragraph (a)(9) of the temporary export exception, provide BIS with potential additional mechanisms of control, without impeding the immediate export of necessary items during a humanitarian crisis. This exception (1) requires those relying on it to email a list of the commodities for export to BIS, specifying the destination and estimated dates of departure and return; (2) allows BIS to check that items are, in fact, returned; and (3) requires that news media organizations retain “effective control” of the news-gathering tools in the country of destination. This does not preclude a sub-contractor from using such equipment, as long as the news gathering organization designates an organization employee to be responsible for the equipment. The same processes applied to aid organizations relying on the temporary license exemption would provide BIS with a mechanism to ensure oversight of equipment exported or reexported for disaster response, while allowing for aid organizations and their local implementing partners to export and use disaster relief equipment in Syria without delay.
If U.S. policymakers believe that even further controls are necessary, they might limit the use of a Syria “tools of the trade” exception to those implementing U.S. government foreign assistance programs, since such U.S. government implementing partners are not only bound by U.S. export control requirements, but also by the elevated obligations tied to their contract and grant agreements. The U.S. government has already vetted these implementing partners, who have presumably demonstrated their abilities to implement assistance programs consistent with U.S. laws and regulations. The fact that many such U.S. government awardees must now wait to start providing disaster relief in Syria because of the time it takes to apply for and receive U.S. export licenses undermines U.S. government emergency relief activities overall. An alternative approach to achieving this goal would be to authorize an expansion to Syria of the license exception applicable to U.S. government foreign assistance, perhaps in conjunction with written authorization, provided as part of the contract or grant, from the head of the U.S. government department or agency responsible for the assistance program in question. This would allow the U.S. government to decide when to apply the exception on an award-by-award basis. Such parameters, however, would significantly limit the utility of the exception.
The “support for the Cuban people” license exception (license exception SCP) provides an additional potential model for the contours of a Syria assistance-related license exception. This license exception generally applies to the export or reexport of items subject to the lowest levels of export control (i.e., those controlled only for anti-terrorism reasons or those designated as EAR99, that is, items that are not controlled in an ECCN described in the Commerce Control List) for specified purposes that are consistent with U.S. foreign policy objectives towards Cuba. The U.S. government could craft a similar license exception to support the Syrian people. Such a license exception might pre-authorize, for example, the export of the categories of items that currently receive a favorable specific license review policy for Syria, as described in the previous section.
Implementation: The foregoing Syria export authorization expansions would be implemented in the same manner as prior changes in Syria export licensing. Namely, the Secretary of State would issue a waiver under section 5(b) of the Syria Accountability Act and report to Congress explaining that these export authorizations are in the national security interest of the United States. Subsequently, BIS would implement the authorizations via changes to the EAR. While too late to address the immediate post-earthquake emergency, such authorizations would still enable the ongoing earthquake response effort, allow for a faster response in the next crisis, and facilitate the longer-term provision of humanitarian assistance.
Additional Steps: Beyond license exceptions, there are several simple steps that BIS could take to facilitate the ability of aid organizations to comply with U.S. export controls. These include: (1) issuing guidance for humanitarian assistance organizations to explain Syria-related (and other) U.S. export controls requirements and exceptions most applicable to humanitarian relief efforts, à la OFAC’s Compliance Communiqué; (2) providing public information about and points of contact for emergency export license review timelines and processes; and (3) issuing a list of export control classification numbers for common disaster relief equipment. BIS might build such a list from the export licenses it is currently reviewing for Syria and in consultation with the international NGO community.
It is not in the U.S. national security interest for export controls to increase loss of life in Syria by preventing the supply of disaster relief equipment at a time of crisis. When, as here, the news media has authorization to take their equipment to report about the Syrian earthquake, while aid organizations must wait for the review and approval of their case-by-case specific license applications, it is time to change the policy. Done in a considered, thoughtful way, such a policy shift will allow for the delivery of life-saving humanitarian assistance in response to the Syrian earthquake and future humanitarian crises, without increasing the risks against which U.S. export controls seek to guard.