September 24, 2021
On Sept. 24, 2021, the Department of Treasury issued two general licenses to allow transactions necessary to provide humanitarian assistance in Afghanistan. However, these general licenses do not include similar protections for peacebuilding and human rights work in Afghanistan They do apply to non-U.S. persons, including NGOs.
Treasury’s Office of Foreign Assets Control (OFAC), has the authority to issue licenses that allow otherwise impermissible transactions. In this case, General License 14, authorizes the U.S. government, NGOs, the United Nations, and various financial institutions to conduct transactions with the Taliban and Haqqani Network that are “ordinarily incident[al] and necessary to the provision of humanitarian assistance to Afghanistan or other activities that support basic human needs in Afghanistan.” It applies to the employees, grantees, contractors and “other persons acting on their behalf” as well.
OFAC’s announcement included answers to several Frequently Asked Questions that provide some more clarity on the scope of General LIcense 14. For example:
- The license also applies to transactions with any entity where the Taliban or Haqqani Network have a 50 percent or greater interest and that would otherwise be prohibited; (See OFAC FAQ 928).
- Examples of permissible transactions include “payment of taxes, fees, or import duties, or the purchase or receipt of permits, licenses, or public utility services.” (See OFAC FAQ 928).
- The scope of humanitarian assistance and “other activities that support basic human needs in Afghanistan” includes disaster relief, healthcare and health-related services, protection and assistance for vulnerable or displaced populations, distribution of food, medicine and clothing, and operation of orphanages. Non-commercial development activities are also covered if they benefit poor or at-risk populations. Examples given include sanitation and training or other services that relate to these programs. (See OFAC FAQ 929).
The second, General License 15, authorizes “transactions related to the exportation or reexportation of agricultural commodities, medicine, medical devices, replacement parts and components, or software updates in Afghanistan.” It is not limited to NGOs or the other entities cited in General License 14, so it applies to all U.S persons, including shippers. It permits “transactions or activities that are ordinarily incident[al] and necessary for authorized export or reexports, including the processing of financial transactions….” (See OFAC FAQ 930).
The administration should be commended for taking these important steps to enable humanitarian activities in Afghanistan. This approach is a vast improvement from the specific license approach that OFAC took in late August, which only allowed U.S. funded organizations to individually apply for a license. In contrast, these general licenses appear to cover a broader range of humanitarian activities and allow for a broader set of humanitarian actors to continue their work, without requiring them to navigate the onerous OFAC licensing process. Arguably, these general licenses reflect a tacit admission by the administration that the specific license approach is woefully inadequate to protect civil society operations in sanctioned locations.
Questions remain about the legal space for critical efforts to defend human rights, promote dialogue and advance sustainable peace. These licenses are narrower than the approach the administration took earlier this year in Yemen prior to revoking the designation of Ansar Allah. On Sept. 2, 2021 a letter from 34 members of Congress urged the administration to issue general licenses for Afghanistan modeled on its approach to Yemen. The administration can and should address the need to protect peacebuilding projects immediately by issuing additional general licenses to enable peacebuilding and human rights organizations to do their jobs.
In the longer term, the Biden administration should also make sure that exemptions for humanitarian aid, as well as peacebuilding, human rights, and development programs, are baked into sanctions from the start, rather than issued as an afterthought. The administration should restore the humanitarian exemptions that president’s are empowered to enact whenever counterterrorism sanctions are imposed. Such exemptions have been inexplicably cancelled for the past 20 years, impeding life-saving work and creating the need for time-consuming licenses in the first place.