In Safeguarding Humanitarian Access in Sanctions Regimes Alice Debarre of the International Peace Institute argues that although sanctions regimes are used with the assumption that they minimize harm, they actually can devastate civilian populations, particularly those that rely on humanitarian aid, including refugees and internally displaced persons. Sanctions regimes also affect humanitarian organizations’ ability to deliver aid on the basis of need alone and not be directed by the political objectives of sanctions programs.
The report explains that the impact of sanctions regimes often depends on which sanctions regime or regimes the aid is interacting with, as regimes from different actors (i.e. the UN, U.S. and the EU) have different requirements. However, Debarre breaks the effects down into categories including the following:
- The costs and delays caused by exemption procedures, which can risk the lives of those most desperately in need. In addition, these procedures, and the conditions that may be imposed, require close contact with government bodies, which can jeopardize the principle of impartiality, a core component of humanitarian law that protects aid recipients and workers alike.
- Derisking, in which banks are unwilling to take on the presumptive risk of humanitarian organizations as clients due to concerns about sanctions enforcement (particularly fines). This often forces humanitarian organizations to use cash instead, which makes countering the financing of terrorism (CFT) more difficult for everyone and defeats the purpose of counterterrorism efforts.
- Restrictive clauses in donor agreements, which, like exemptions, involve negotiating with resources that could be better spent providing humanitarian aid. These clauses can threaten the impartiality of humanitarian aid organizations, leading some to abandon these sources of funding in order to preserve humanitarian principles.
- Threat of legal action, including fines and criminal prosecution imposed by individual states’ counterterrorism measures, which are often stricter than UN sanction regimes. This includes making “the violation of sanctions a criminal offense.” The report cites the “multimillion-dollar payout from Norwegian People’s Aid in April 2018 for the organization’s interaction with US-sanctioned groups in the Palestinian territories” as an example. (Click here for more information.)
Debarre says the chilling effect, or environment produced by the combination of the above factors, often affects the behavior of humanitarian aid organizations as much as the sanctions regimes themselves. This challenges the “ability of humanitarian actors to operate in a principled manner . . . This has a direct effect on populations in need, in particular those living in areas controlled by sanctioned groups, as they will be cut off from services that, in many such contexts, are only provided by humanitarian actors.”
The Reasons these Problems Persist
The reasons these problems still exists— despite being first reported in 1998—will not surprise anyone with experience in the humanitarian sphere:
- The UN provides very little guidance about how to navigate their own sanctions regimes despite, or perhaps because of them often being “ambiguous, legally incoherent, and sometimes even contradictory.”
- Financial institutions are still distrustful of humanitarian aid organizations, based on misconceptions about the level of due diligence and good governance they employ. These misconceptions persist despite the Financial Action Task Force’s (FATF) shift away “from its previous assumption that the entire nonprofit sector was highly vulnerable to the risk of terrorist abuse.”
- Aid organizations are reluctant to give evidence of the negative effects of sanctions regimes to governments out of concern for maintaining their impartiality.
- Political dynamics and interests both in the UN and in individual member states’ sanctions-devising and -enforcing bodies.
Luckily, Debarre suggests strategies for alleviating and ultimately solving this problem, ranging from the short- to long-term. They include:
- Safeguards for humanitarian actions in sanctions regimes via exemptions (which she defines as “provision[s] allowing humanitarian actors to apply for permission to conduct their activities”) and exceptions (which she defines as “provision[s] that carves out legal space for humanitarian actors, activities, or goods within sanctions measures without any prior approval needed.”) Each country has its own way of establishing exemptions or exceptions. This creates a need to streamline the process in places where humanitarian aid organizations are operating in conjunction with multiple sanctions regimes.
- Improved and increased guidance at both the national and regional levels. Financial institutions should also demand this so they can stop over-complying with sanctions regimes and derisking humanitarian aid organizations.
- More systemic monitoring and reporting, which is currently done on an ad hoc basis.
- Better risk management support and risk sharing through exemptions and exceptions. Financial institutions “need stronger, more explicit, or more formal guarantees from member states that sanctions will not be enforced if they are providing services to humanitarian actors with proper risk management procedures in place” to decrease derisking.
- Increased dialogue and awareness raising: the report cites the success of the Global NPO Coalition on FATF (the Charity & Security Network is co-Chair) It quotes C&SN, noting that despite the World Bank and Association of Certified Anti-Money Laundering Specialists cosponsoring “a dialogue on derisking. . . progress has been slow due to lack of robust participation by key government stakeholders.” It concludes by saying derisking, like every other sanctions-related problem plaguing humanitarian aid organizations, is an issue whose relief necessitates enthusiastic government assistance.