After more than ten years of advocacy by the humanitarian community, the United Nations made a landmark decision to safeguard humanitarian action across all UN sanctions regimes. In December, the UN Security Council (UNSC) adopted Resolution 2664, which allows for a humanitarian exemption in asset freeze measures imposed by UN sanctions. An exemption, also known as a “safeguard” or “carve-out,” creates a legally binding, obligatory exception within a sanctions measure—in this case, to permit certain organizations to carry out designated humanitarian activities without violating the sanctions regime.
The resolution represents what one senior humanitarian called a “huge victory” for the field in a January 2023 interview with the author. It also marked a moment of rare consensus in the UNSC, which has long been deeply divided and, since Russia’s invasion of Ukraine, nearly paralyzed. Proposed by the United States and Ireland, the resolution passed with fourteen votes in favor, while only India abstained.
The decision comes at a significant moment. Days before the UNSC vote, the UN Office for the Coordination of Humanitarian Affairs (OCHA) estimated that at least 222 million people were experiencing acute food insecurity at the end of 2022—the largest global food crisis in modern history. Humanitarian organizations have been clamoring for more support; the UN called for a record-breaking $51.5 billion in humanitarian funding for 2023. At the same time, the countries that need the most assistance are often subject to international sanctions regimes. As of March 2023, UN sanctions apply in nine of the International Committee of the Red Cross’s top ten operations, including Syria, the Democratic Republic of the Congo, and Yemen. In these contexts, the resolution will help facilitate the flow of aid, eliminating unnecessary impediments that can mean the difference between life and death for many people in need of humanitarian assistance.
Ultimately, Resolution 2664 is a massive win for the humanitarian community and provides much-needed flexibility for aid workers in sanctioned contexts. However, the resolution’s impact depends on the nature of implementation, and its scope has definite limits—some of which were visible in the response to the recent, devastating earthquake in Türkiye and Syria. Finally, the humanitarian system must address persistent challenges beyond the scope of the resolution to meet a moment of enormous human need.
Precedents for the Carve-Out
Previous ad-hoc, country-specific humanitarian exemptions in sanctioned contexts offer a precedent for the carve-out and demonstrate its significance.
Somalia has been under a UN arms embargo since 1992, and in 2008, the UNSC established an asset freeze and travel ban on al-Shabab, an al-Qaeda affiliate that controls vast swaths of the country. Somalia is also subject to additional UN bans on charcoal and IED components. In 2010 and 2011, a combination of severe drought, conflict, limited aid, al-Shabab’s punitive governance, and other factors caused an officially declared famine that resulted in 258,000 deaths and the displacement of hundreds of thousands of people into Ethiopia and Kenya. In response, the UNSC in 2010 provided a yearlong humanitarian carve-out to the asset freeze measures, and it created a permanent humanitarian carve-out in 2020.
More recently, in Afghanistan, a 2021 UNSC-backed humanitarian exemption similarly responded to massive human suffering by removing sanctions-related legal barriers to humanitarian action. The current Taliban-focused sanctions regime, though originating in 1999, is anchored in UNSC Resolution 1988 (2011), which mandates an asset freeze, travel ban, and arms embargo on the Taliban and related entities. However, since the Taliban takeover in August 2021, many sanctioned individuals now hold positions in the de facto government and other positions of power. These sanctions have consequently crippled the Afghan economy and contributed to an acute liquidity crisis by banning and blocking financial transfers to the de facto state and to Afghanistan’s central bank. As humanitarian actors faced severe restrictions on their abilities to operate in the country, basic needs skyrocketed. By October 2021, more than 22 million Afghans (more than half of the population) faced emergency or crisis levels of acute hunger. Weeks before the UN Emergency Relief Coordinator launched the largest single-country aid appeal ever, the UNSC approved a humanitarian exemption to asset freeze measures in December 2021.
These country-level examples illustrate how significant Resolution 2664 could be on a broader scale. In both Somalia and Afghanistan, sanctions exacerbated humanitarian crises, and the process of negotiating and implementing an eventual carve-out wasted valuable time before humanitarian actors were granted the flexibility necessary to act. Indeed, the UN Humanitarian Coordinator for Somalia stated that the deaths in Somalia’s 2011 famine were in part due to the international community’s failure to act quickly enough. The new resolution could prevent similar costly delays in the future.
Unpacking the Resolution
Resolution 2664 permits payments, goods, and services “necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs.” In general, “humanitarian assistance” refers to relief activities that provide civilians with the basic goods and services necessary to live with dignity. These typically encompass food, water, healthcare, and means of shelter.
The resolution also protects against aid diversion. Concerns that terrorist groups could exploit the humanitarian carve-out to raise funds and recruit fighters formed the basis of India’s abstention; in response to these objections, the text requires that aid providers make “reasonable efforts” to minimize capture by sanctioned actors, especially through risk management, due diligence, and reporting requirements.
The resolution greatly expands humanitarian actors’ ability to provide assistance in places impacted by UN sanctions. In principle, UN sanctions never prohibit humanitarian activities, which are protected by international law. Nevertheless, asset freeze sanctions prohibit certain activities that aid actors may find difficult to avoid. According to reports by Sophie Huvé and Rebecca Brubaker and Alice Debarre, such activities can include paying sanctioned entities for various services such as food, drink, or transportation. Other banned acts include paying taxes and fees such as road tolls or utility bills, as well as diverting humanitarian goods or equipment to sanctioned entities. To access vulnerable populations and deliver aid, humanitarian organizations are often unable to avoid certain direct or indirect payments to individuals or entities designated for sanctions. While Resolution 2664 still mandates efforts to mitigate diversion or manipulation of aid by sanctioned actors, it provides humanitarians a legal exemption from the asset freeze measures that ban these kinds of transactions. It thus gives humanitarians significantly more flexibility to do their jobs without fear of criminalization.
The new, standing exemption will also streamline humanitarian action and expedite the procedural aspects of operating in sanctioned contexts. One of the resolution’s key benefits is that it overrides all existing and future sanctions resolutions, thereby standardizing humanitarian sanctions exemptions. For sanctions against the Islamic State and al-Qaeda, the new exemption applies for a two-year period before expiring or being up for renewal. Previously, humanitarian actors have been forced to contend with a patchwork of sanctions rules, which varied in definition of acceptable activities, goods, or actors. Given the time each individual regime took to publish and understand, U.S. Ambassador to the UN Linda Thomas-Greenfield touted the resolution for making exemptions more consistent and efficient. In addition, unlike many other humanitarian carve-outs, the resolution is a standing exemption, which means that aid providers are not required to submit a request or notification to a UN sanctions committee before acting. Together, the standardized and standing nature of the exemption will likely result in a more rapid, efficient, and powerful humanitarian response.
Broader Implications: Mitigating Overcompliance and De-risking
The resolution may further facilitate humanitarian action by mitigating de-risking behavior by banks and other actors. Broadly speaking, de-risking is a form of overcompliance in which entities restrict their activities more than is legally necessary out of fear of violating sanctions regimes.
In the financial sector, de-risking typically refers to banks restricting or terminating business in fraught legal contexts to avoid, rather than manage, risk. Under sanctions regimes, banks are legally bound to apply due-diligence measures and monitor transactions to prevent exploitation by listed entities. These procedures are resource intensive for both banks and humanitarian actors, which may also be reluctant or unable to share sensitive information, especially if doing so could endanger their staff, local partners, or beneficiaries. Moreover, the lack of clarity surrounding sanctions regimes exposes banks to fines and potential reputational damage with minimal potential profit. Even when humanitarian organizations have an official license indicating their home government’s approval of their operations in sanctioned contexts, banks have sometimes interpreted these licenses as warning signs that an organization’s activities are on the border of legality and pose an undue risk. Rather than taking on this perceived greater liability, banks instead limit operations—for instance, by restricting funds transfers, freezing or closing accounts, or denying requests to open new accounts.
Given the legal risk, unsurprisingly, humanitarian organizations themselves sometimes engage in overcompliance. They can be reluctant to carry out certain functions or work with certain partners because they are unsure whether doing so would make them noncompliant with sanctions. Such uncertainty also forces humanitarians to dedicate extensive time and resources to analyze, understand, and interpret sanctions and associated safeguards, pulling capacity away from the front lines.
The standardized humanitarian carve-out in Resolution 2664 could help mitigate overcompliance and de-risking by all parties by indicating international support for legitimate humanitarian activity and reducing fear of legal trouble. Having a single set of rules could reduce confusion and increase the confidence and willingness of financial institutions and humanitarian organizations to legally work with partners on the ground, while saving time and resources. It would also eliminate the need to rely on licenses that may be intended to signify legality but, in practice, may be perceived as a liability.
What the Resolution Doesn’t Do
Resolution 2664 has great potential to promote faster and more effective humanitarian action, but it is not a panacea. For one, how UN member states implement the resolution has yet to be tested. Moreover, the resolution itself has notable limits in scope and application.
Domestic Implementation
Much of the resolution’s impact will hinge on how it translates to national policy and practice. UNSC decisions are legally binding for member states, but the member states decide how to implement domestic measures such as laws, licensing processes, and enforcement measures that guide action by NGOs, banks, individuals, and others. This domestic implementation process usually takes time. After the passage of Resolution 2664, humanitarian organizations such as the International Committee of the Red Cross and the Norwegian Refugee Council urged states to operationalize the carve-out in national law and practice.
The gap between a resolution and national implementation can be wide. Take the example of Somalia’s 2011 famine, when the UNSC passed the humanitarian exemption described above. Despite this exception, U.S. sanctions policy under the Office of Foreign Assets Control (OFAC), as well as the criminal code of the PATRIOT Act, continued to produce fear of litigation and subsequent overcompliance. In Afghanistan, four months after the passage of the 2021 humanitarian exemption, the Office of the UN High Commissioner for Human Rights stated that there had been “no significant progress in the financial and commercial flows by States and international financial institutions for development and humanitarian purposes in Afghanistan” and primarily blamed this stasis on banks’ continued de-risking, as well as the United States’ freeze of Afghan foreign assets. In both cases, the implementation of a UN sanctions exemption did not translate to comprehensive domestic implementation.
These examples demonstrate the particularly limited effect of UN sanctions exemptions in the face of continuing unilateral sanctions, which are those passed by individual states. China and Russia raised this very concern in discussions over Resolution 2664. As two states that do not donate large amounts of humanitarian aid but currently face unilateral sanctions from the United States, particularly since Russia’s invasion of Ukraine, their motives are clearly self-interested, but their broader point stands. The resolution’s humanitarian exemption only applies to UN sanctions and provides little assistance to humanitarians working under additional unilateral constraints, particularly those imposed by the United States and other large humanitarian donor states such as Germany and the United Kingdom.
In response to these potential pitfalls, the Joe Biden administration has taken steps to advance the domestic implementation of Resolution 2664 while mitigating the harms associated with U.S. unilateral sanctions. Days after the resolution was adopted, OFAC issued or amended general licenses to ease the delivery of humanitarian aid across the majority of U.S. sanctions regimes. General licenses authorize certain transactions for an entire class of actors—in this case, humanitarian organizations—without requiring these actors to apply for licenses on a case-by-case basis. OFAC also issued four sets of FAQs and a fact sheet further detailing the scope of viable humanitarian activity and providing guidance for financial institutions on due-diligence expectations. Describing the changes, Deputy Secretary of the Treasury Wally Adeyemo stated that under these new guidelines, there would be standard authorization for humanitarian support, reflecting the United States’ commitment to ensuring legitimate humanitarian assistance. Previously, humanitarian organizations dedicated time and resources to apply for a license to operate, and long wait times for license approval could further delay the humanitarian response. As these new licenses apply to both UN and unilateral sanctions regimes, this move may streamline American humanitarian exemptions across the board.
While describing these licenses as a highly significant and clarifying move from the Treasury Department, Kate Phillips-Barrasso, Vice President of Global Policy and Advocacy at Mercy Corps, expects that the new guidelines will not completely eliminate financial de-risking or barriers, such as exorbitant transaction costs, as banks are private-sector entities that will continue to make risk- and profit-based choices. To tackle this challenge, various analysts have provided detailed recommendations to mitigate financial access challenges in the United States, including through continued dialogue and education, as well as potentially an incentivization structure or the development of new creative financing mechanisms.
In February 2023, the European Union (EU) and the United Kingdom similarly passed legislation to implement the resolution, the texts of which closely mirror that of the resolution. However, operationalizing the exemptions will likely require extensive engagement between national governments and financial institutions to facilitate compliance. Any efforts to mitigate logistic and financial hurdles to operating in sanctioned contexts remain to be seen; while the explanatory memorandum accompanying the British amendment states that the government will update sanctions guidance and continue engagement on sanctions implementation, it does not propose any specific action to mitigate regulatory burdens.
Finally, a comprehensive domestic implementation regime for Resolution 2664 in any national context should also address legal hurdles that may impede humanitarian assistance in sanctioned contexts. In the United States, even licensed humanitarian organizations are at risk of criminal prosecution under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and the 1977 International Emergency Economic Powers Act (IEEPA). Under these laws, aid organizations could be criminally prosecuted for providing even incidental “material support” to designated terrorist organizations and individuals. While Congress has built a humanitarian exemption into IEEPA, this exemption has been waived in all executive orders implementing terrorism sanctions since 9/11, and the definition of “material support” in both laws remains ambiguous. In this context, Sue Eckert, Jacob Kurtzer, and Sierra Ballard write for the Center for Strategic and International Studies that Congress should mandate the IEEPA exemption and amend AEDPA to exempt the same activities allowed under OFAC licenses.
Limited Scope
Even if UN member states thoroughly implement the humanitarian exemption into domestic law, the exemption itself has specific limits. For one, it only applies to asset freeze measures, not other kinds of sanctions such as travel bans and sectoral embargoes. Asset freezes aim to prevent financial assets or economic resources from becoming available to either sanctioned individuals and entities or those acting on their behalf. Of all sanctions measures, asset freezes are the most inhibitory for humanitarian actors, as their scope can be very broad and hard to avoid.
While relief from asset freeze measures is thus welcome, other sanctions measures can also hinder humanitarian organizations. Sectoral regulations such as arms embargoes can restrict or delay dual-use items that are important to humanitarian activities. Following the passage of Resolution 2664, humanitarian demining organizations have advocated for similar exemptions for arms embargoes that may restrict their access to equipment used for demining operations. Other embargoes have limited humanitarian access to items used for water purification, agriculture, fuel, and medical response. Compared to asset freezes, sectoral embargoes affect far fewer humanitarian actors, so case-by-case (rather than standing) exemptions may still be feasible in most cases, provided that national systems for issuing licenses are clear, efficient, and effective. In cases where certain items are clearly relevant to humanitarian activities or where restrictions are so far-reaching that they greatly inhibit humanitarian action, exemptions embedded in the sanctions regime itself may be appropriate. For example, several sectoral regulations, such as the arms embargo in Somalia, provide a built-in humanitarian exemption for protective clothing for humanitarian workers.
A more fundamental question concerns the limits of acceptable humanitarian activities under Resolution 2664. As described above, the resolution provides a degree of flexibility to carry out “humanitarian assistance.” However, humanitarian action is not only about aid delivery. It also includes protection, a much broader term referring to all activities that seek to uphold civilian rights and prevent or end violations of international humanitarian law. Providing protection can, in some cases, include engagement with sanctioned groups. The resolution does not afford the same kind of flexibility for these activities, even though they fall within the scope of humanitarian activities.
Finally, the resolution’s narrow focus on strictly “humanitarian” activity, rather than a broader range of assistance, may further constrain aid providers. Effective and durable humanitarian assistance is much easier to deliver in secure environments with effective governments and the infrastructure necessary to distribute aid. For instance, humanitarian delivery of medicine is difficult without accompanying development activities to support hospitals or without peacebuilding activities in conflict zones. Over the past decade, aid providers have become increasingly aware of the interdependence of humanitarian, development, and peacebuilding activities, also known as the HDP nexus. Enthusiasm for the HDP nexus is not boundless—humanitarians themselves express concerns that too great an integration of humanitarian and development aid could blur institutional mandates and priorities and potentially politicize aid, undermining humanitarian principles of neutrality. Nevertheless, the humanitarian community and the UN both recognize that humanitarian aid faces serious limitations without complementary efforts in development and peacebuilding.
Resolution 2664, however, does not reflect this integrated approach. While the United States has implemented the resolution with licenses that support a broad range of work, including democracy promotion and peacebuilding, these licenses have yet to be tested in practice, and the resolution does not mandate this broad scope for all member states. The resolution’s two-year sunset clause on application to the Islamic State and al-Qaeda sanctions regimes further impedes large-scale development activities, which often require long-term investments. Without incorporating a more integrated approach to effective, sustainable aid, the UNSC’s humanitarian exemption may only repeat past mistakes.
Persistent Challenges Beyond the Resolution
In the end, the resolution removes or mitigates certain intractable barriers to humanitarian aid, but it doesn’t deliver aid itself. For one, humanitarian actors need funding. This year’s record funding gap reflects a consistently underfunded humanitarian sector despite continuously rising needs caused in part by conflict, COVID-19, economic turmoil, and climate change.
Even with sanctions exemptions, humanitarian actors face several challenges while operating in areas beset by insecurity and political turmoil. As previously mentioned, overcompliance and bank de-risking often persist even for legitimate activities covered by humanitarian exemptions. In addition, humanitarian actors often struggle to access those in need due to safety concerns in insecure environments and the increased targeting of humanitarian actors and beneficiaries. Access challenges can also arise from de jure or de facto authorities attempting to limit aid delivery to certain populations under their control. For instance, the Taliban in Afghanistan have sought to influence budgets and staffing contracts (in particular, banning female aid providers), constrain certain services, and channel assistance to preferred recipients. In northwest Syria, political access challenges have compounded physical ones; the Syrian government’s tight control on aid going into opposition-held areas effectively limited entry for UN earthquake relief to a single, highly damaged border crossing for days.
The latter issue relates to a more general challenge: how to prevent aid capture and diversion to elite members of society, corrupt authorities, or sanctioned individuals. India’s UN representative, among others, expressed concern that freeing the flow of aid for humanitarians could increase the risk of funds being captured by unintended recipients. Aid agencies have significant due-diligence measures in place to ensure that aid reaches intended beneficiaries. Nevertheless, both the UN and national policymakers will have to walk a difficult line in mandating monitoring and reporting requirements that are stringent enough to avoid capture but flexible enough not to unduly deter legitimate activity.
Finally, humanitarian carve-outs might not always be able to support the most practical and lasting solutions to humanitarian crises, which sometimes may be directly at odds with the legal imperatives of sanctions. For example, providing direct aid to critical sectors and paying healthcare workers employed by a sanctioned government may be effective ways of addressing crises but legally unacceptable under sanctions, even with a humanitarian exemption. Consequently, humanitarian actors and policymakers alike will still have to make painful trade-offs. Without a thoughtful approach to navigating this balance or a way to address these other financial and operational challenges, the humanitarian exemption will make only limited progress in facilitating humanitarian action in the context of sanctions.
From a More Effective Carve-Out to a More Humane System
Ultimately, Resolution 2664 is a massive win for the humanitarian community, but it needs far more support to guarantee comprehensive humanitarian assistance and protection in sanctioned contexts. While it offers much-needed clarity, consistency, and legitimate space for humanitarian action in sanctioned contexts, much of the resolution’s impact will lie in how it is operationalized in domestic law, by financial institutions, and on the ground. To assist member states in navigating this complexity, the UN committees on sanctions implementation will provide implementation assistance notices.
Meanwhile, those implementing Resolution 2664 must learn from previous humanitarian exemptions in Somalia and Afghanistan. These lessons include recognition of the interdependence of all nodes of the HDP nexus, the importance of realistic operational timelines to allow for enduring civilian protection, and the friction that often arises between sanctions exemptions and other political and economic policies in the same context. Moreover, issues of unilateral sanctions remain outstanding, as do humanitarian activities that may lie outside of the scope of the exemption.
Addressing these issues would make the humanitarian carve-out more effective but would still fall short of constructing a more humane sanctions system. While sanctions remain a powerful normative and practical tool to deter violence and uphold the rules-based international order, current research from United Nations University suggests that sanctions can also endanger basic human needs and complicate negotiated peace processes while detracting from the speed, scale, and scope of humanitarian response. If the international community is serious about mitigating the humanitarian consequences of sanctions, it should confront additional underlying questions, including those related to due process in designating sanctioned entities, better targeting for sanctions measures, and a more specific and actionable framework for listed entities to meet international standards required for notoriously difficult sanctions delisting.
This year, UN Secretary-General António Guterres will issue a report on the unintended adverse humanitarian consequences of sanctions measures. The findings will likely paint a sobering picture for humanitarians, but they may also prompt much-needed policy debates on how to better to protect vulnerable populations. Humanitarians and policymakers alike should build on the momentum of Resolution 2664 to make sanctions more clear, effective, and humane for everyone.