Mrinalini Niranjan
Symbiosis School for Liberal Arts
Symbiosis International (Deemed University)

Cite This Source

Niranjan, M. (2024). Examining the efficacy of humanitarian carve-outs within the United Nations sanctions regime. Confluence: Journal for Interdisciplinary Studies, Volume VII-VIII, 129-149. 

Abstract

This paper presents the research question of analyzing the efficacy of humanitarian carve-outs within the United Nations sanctions regime as presented by resolution 2664. More than a year has passed since the United Nations Security Council approved the resolution, and therefore, it is important to present an efficacy analysis to improve the policy or even improve its implementation. The paper begins by providing a brief background into the issue and then explains the research question. The broad research question is divided into two sub-questions. The first examines how the resolution has changed access to humanitarian aid, whereas the second investigates if the passing of the resolution has affected the delivery of humanitarian aid on the ground. Thereupon, the literature review summarizes and evaluates existing literature tracing nuances of accessing and providing humanitarian aid. While there is a substantial body of literature on humanitarian aid, given the contemporary nature of the topic, there is an absence of literature examining the efficacy of resolution 2664. Further, the research method section presents that primary research through semi-structured qualitative interviews of convenience sampling and secondary research is used to answer the research questions. The research finds that asset freeze measures under the sanctions regime have more disadvantages than advantages. Similarly, even though resolution 2664 is a historical win theoretically, questions remain unanswered about its practical implementation. Therefore, the resolution needs to be widely adopted by member states and should be implemented over other sanctions regimes and counter-terrorism measures to create a safer humanitarian space.

Keywords: Resolution 2664, Humanitarian Carve-Outs, Sanctions Regime, UNSC Resolution, Humanitarian Exemptions, Efficacy Analysis  

Examining the Efficacy of Humanitarian Carve-Outs Within the United Nations Sanctions Regime

On 09 December 2022, the United Nations Security Council adopted resolution 2664. The Security Council, through the resolution, provides a “humanitarian carve-out or a standing humanitarian exemption to the asset freeze measures imposed by United Nations sanctions regimes” (United Nations, 2022). 

Before exploring the resolution further, it is necessary to present a brief background of the United Nations Security Council (UNSC) and the United Nations sanctions regime. The UNSC was established with the primary intention of maintaining peace and security in the international system. For the same, they take steps such as initiating peaceful dispute settlement or making recommendations for terms of settlement. In some extreme cases, the UNSC resorts to employing peacekeeping forces or even imposing sanctions to restore order and peace in the system (United Nations, n.d.-b). However, before resorting to the use of force, under Chapter VII Article 41 of the United Nations Charter, the Security Council is tasked with solving issues by means of “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” (United Nations, n.d.-a). Following this article, the UNSC has historically imposed around 31 sanction regimes, of which 15 sanctions are currently ongoing (United Nations, 2023).

A regime can be described as a “collection of sanctions means put in place for a particular set of purposes” (U.K. Sanctions Regimes, 2020). The sanctions can be either thematic, relating to a particular problem such as nuclear proliferation, or geographic, relating to a particular country. Whatever the nature, the objective of these sanctions regimes have been to influence governments, groups, or individuals to alter their behavior to establish peace and order in the international system. 

The sanctions regime by the UNSC has faced numerous challenges, such as sanctions evasion, weak measures, and futile pursuit. But most importantly, it has a human cost associated with it. The sanctions make it extremely difficult for humanitarian aid to be delivered to the people in need residing under the rule of the sanctioned entity or state. 

Against this backdrop, the UNSC adopted the resolution 2664 to allow for humanitarian assistance even under a sanction regime. The resolution provides that “any financial transactions or provision of goods and services necessary for humanitarian assistance and basic human needs are permitted and not a violation of the asset freeze measures” (Fink & Sarfati, 2022). This is understood as a humanitarian carve-out applicable even to the Islamic State of Iraq and the Levant (ISIL) and the Al-Qaida regimes to facilitate effective and timely conduct of humanitarian activities. 

Research Question

As mentioned, resolution 2664 was brought into action to compensate for the humanitarian shortcomings of the sanctions regime. Given that more than a year has passed since adopting the resolution, my research aims to ‘examine the efficacy of the humanitarian carve-outs to the asset freeze measures imposed by United Nations sanctions regimes.’ 

The efficacy of the resolution will be examined through two aspects:

1. How has the resolution changed the access to humanitarian aid?
2. Has the passing of the resolution affected the delivery of humanitarian aid on ground/in real-time?

The former question presents the challenges faced by the sanctions regime before the resolution and thereafter explores how the resolution has changed the transfer and receipt of humanitarian aid. In simpler words, the research studies how humanitarian aid reaches target groups under the sanctions regime before and after resolution 2664 came into place.

More often than not, policies made from a position of power are not translated into work on ground. This problem is tackled by the latter question, which examines if the resolution has been implemented at a grassroot level. Additionally, I also present challenges, which arise in the practice of or due to the humanitarian carve-outs. 

Importance of Research Question

Resolution 2664 has been hailed as a victory by the humanitarian community. The resolution came at a time when few believed such a resolution would be adopted, and fewer believed it would include counter-terrorism regimes (Fink & Sarfati, 2022). The resolution is also a counter to the long-existing problem of humanitarian activities under sanctions while also representing a changing global dynamic wherein the United States takes the lead to pen such a resolution. 

The standing exemption is one step forward. However, there is a need to understand if it is a good step forward by resolving the challenges of humanitarian aid under sanctions. We also need to understand whether the victory on paper has indeed translated into victory on ground. An examination of both of these questions will raise the positives and negatives of resolution 2664, which can help guide improved humanitarian policies. This is especially important at this beginning stage so that there can be better implementation for the true welfare of the target groups. 

The paper first presents a literature review that provides a summary and critical assessment of existing literature on the sanctions regime and the humanitarian problems under the regime. Thereupon, the research design is discussed, followed by a presentation of my findings. 

Literature Review

There is considerable literature discussing the difficulties associated with the sanctions regime. As briefly mentioned above, these range from implementation problems to humanitarian concerns. The literature available is on a country wise basis as discussed below.

Nishizawa et al. (2022) presents five of these challenges using the case of North Korea. First, they say that the implementation of sanctions is one of the biggest problems as it lies within the purview of individual nation-states. These states often do not have the resources to monitor logistics. This, in turn, increases the probability of entities illegally conducting trade with North Korea to gain financial benefits. Second, sanctions by individual states tend to be watered down due to other foreign policy considerations, such as gaining allies. Third, strict sanctions could have the inverse effect of further pushing the entity to pursue the sanctioned actions. In this case, tough sanctions on North Korea have led to Supreme Leader Kim Jung Un conducting more nuclear and missile testing as he views the sanctions as threats to his survival. Fourth, some believe that sanctions alone do not have the power to deter Pyongyang from pursuing nuclearization. According to UNSC reports, they already seemed to procure more than the imposed quota of petroleum barrels through China and other means. Fifth, sanctions impose a high cost on ordinary families in North Korea rather than the targeted elites. Because of the restrictions, international humanitarian aid is usually delayed or even suspended due to complicated customs and bureaucratic operations. This is especially troublesome since half of the North Korean population is malnourished and desperately needs help. Therefore, the authors present the complex difficulties of implementing sanctions while discussing humanitarian concerns. 

Similarly, another report by the European Parliament highlights the impact of sanctions on the humanitarian situation through the case study of Syria. As the Syrian civil war continues for the 13^th year, nearly 70% of the population requires humanitarian assistance (Leclerc, 2023). Like North Korea, Syria has also been one of the most heavily sanctioned nations in the world, which has caused unintended side effects on humanitarian operations. The European Union (E.U.) has implemented the UNSC sanctions on ISIL/Da’esh and Al-Qaeda as a measure of the fight against terrorism. These sanctions include restrictions on financial support for trade, a freeze on Syrian assets held in E.U. banks, sanctions on target individuals, and many more. However, the E.U. has allowed for exemptions and derogations for humanitarian activities. Despite these measures, humanitarian actors face challenges such as widespread refusal of banks conducting transactions to Syria due to high legal and regulatory requirements. These refusals have caused difficulties in receiving aid funding wherein transactions are rejected or delayed, which in turn causes delay or cancelation in humanitarian actions. The complexity of the sanctions also, in general, discourages individuals or countries from carrying out legitimate transactions for fear of accidentally violating the sanctions. On the other hand, Leclerc (2023) also reports that the Syrian regime themselves “politicize and instrumentalize humanitarian aid by repeatedly obstructing, impending and diverting assistance” (p.11). Therefore, the report presents both the difficulty in sending financial aid as well as receiving financial aid under the sanctions regime imposed by the UNSC and individual member states. 

The argument posited by Leclerc on the politicization of humanitarian aid finds its roots in a CSIS report on ‘Rescuing Aid in Syria.’ The Assad government has, over time, turned aid into a political instrument to benefit themselves and their allies while punishing their adversaries (Hall, 2022). Then, the global assistance for the Syrian people has primarily just strengthened the Syrian government financially and politically, ensuring that millions of Syrians continue to suffer. The author presents that the international response to the Syrian crisis should be focused on four axes – taking informed actions, diplomacy and negotiations between donor and recipient governments, emphasis on greater resilience by the humanitarian community, and more robust facilitation of aid. Through this literature, it is clear that the difficulties in financial assistance within sanction regimes become even more complex with the involvement of sanctioned entities disrupting aid allocation. 

The story continues in the case of Afghanistan as well. Even though there are no sanctions on Afghanistan as a state, Al Qaeda members have been punished using sanctions since the late 1990s. Since the Taliban now controls Afghanistan, many of these sanctioned individuals hold governmental roles. This has made financial assistance tricky. Like in other cases, financial institutes have been wary of transactions involving Afghan bank accounts, concerned about the repercussions they may face from the U.S. (Human Rights Watch, 2022). The Afghan Central Bank has also been cut off from international financial circles due to questionable credentials of bank officials. All of this has forced aid groups to use unsafe and expensive informal methods such as the hawala networks to transfer money into the country. 

Specifically, in the case of Afghanistan, there is a gendered aspect as well. Since the Taliban has barred Afghan women from attending university or working in NGOs, there arises a humanitarian dilemma in the delivery of aid for women and children (Byrd, 2023). It is seen as socially unacceptable for a man to deliver aid to women. In the long term, the ban reduces the number of women available to work in humanitarian services. Both of these scholarly articles present a complex socio-economic humanitarian problem under the sanction regime in Afghanistan. 

In response to most financial difficulties explained by the literature above, the UNSC proposed Resolution 2664. This cross-cutting exception is a culmination of decades of discussion to find ways to avoid the adverse humanitarian impacts of sanctions. The shift toward such a resolution happened slowly by giving country-specific exceptions, such as exceptions in Afghanistan and Haiti (Gillard, 2022). The resolution clearly addresses the different ways in which funds or assets are permitted to reach the target groups who are under financial sanction by the UNSC. These rules can help mitigate the de-risking behavior by financial entities (Crystal, 2023). 

The humanitarian carve-outs have been described as a “huge victory for the humanitarian field” and mark a rare UNSC consensus (Crystal, 2023). Although it provides much-needed flexibility for humanitarian workers, the resolution will only be impactful if other nation-states change their policies to accommodate carve-outs. Finally, the resolution only accounts for asset freeze measures. However, a need arises to make humanitarian exceptions for other kinds of sanctions as well. The author provides a structured analysis of Resolution 2664 and puts forth the positives and the negatives of the policy, making it highly beneficial to my research. 

This literature review dealt with select literature available on humanitarian actions under the sanctions regime and the views on resolution 2664. A common observation is that most literature focuses on specific aspects of humanitarian aid and does not offer a comprehensive picture of the same. There is also an absence of literature that analyzes the efficacy of the resolution through the viewpoints of both bettering access to aid and implementation on ground. The research at hand aims to bridge the gap and study the efficacy of humanitarian carve-outs. 

Research Design

To answer the research question, I use the primary research methodology of qualitative semi-structured interviews. Since the resolution has only been in place for about a year, literature directly discussing its efficacy and implementation is limited. Therefore, qualitative interviews with aid practitioners and other subject matter experts working in the field of sanctions regime are necessary to understand the happenings on ground. 

The questionnaire has been created with the aim of directly answering both the research sub-questions. Since the methodology is a semi-structured interview, the questions have also been made in an open-ended manner to encourage dialogue. 

Additionally, I use the nonprobability sampling technique of convenience sampling coupled with snowball sampling. A convenience sampling can be described as one where the “primary criteria for selecting cases are that they are easy to reach, convenient or readily available” (Lawrence, 2014, p.248). Gaining access to interview humanitarian scholars is a challenge. Therefore, I interview experts I can easily reach and then implement a snowball sampling wherein I further reach out to their contacts. 

Lastly, these interviews have been verified by desktop research of project evaluations, open-source documents and databases, and existing literature on the topic. Secondary data from scholarly articles and research papers covering topics such as sanction regimes, humanitarian aid, and difficulties associated with humanitarian practices under sanctions have been crucial for my research. These are also widely available on open-source sites. 

The following section of the paper first presents the findings from primary interviews. After that, the various nuances and problems associated with sanctions regimes are discussed, and an analysis of the resolution 2664 is presented. 

Findings from Primary Research

Experts reiterate that the resolution has made delivering aid easier because it removes barriers (financial, legal, administrative etc.) that otherwise humanitarian workers had to spend time and energy resolving. These were resources that were not going into the actual action of giving aid itself but instead were just spent getting over technical issues. Functionally, it is one fewer hurdle to climb while doing transactions as financial institutions may now be more willing to process funds (J. Kurtzer, personal communication, December 28, 2023). The passing of the resolution is also understood as a significant message to banks, policymakers, and other stakeholders of the United Nations’ commitment towards humanitarian activities. 

However, on the flip side, it does not make giving aid easier. The resolution has only been adopted by a few member states, making transferring funds difficult (A. Hall, personal communication, January 25, 2024). The misalignment between national legislation and U.N. sanctions is prevalent. Even if the resolution is to be used, it could go against domestic counter-terrorism legislation, forcing the bank to follow the stricter norms, eroding the use of 2664 (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024). Therefore, even though the U.N. has brought in a change, it does not solve the issues with financial transactions worldwide. In general, it has been easier for the U.N. to impose sanctions and, therefore, legally obligate the member states to implement them rather than dialing back restrictions (J. Kurtzer, personal communication, December 28, 2023). Similarly, it is also unclear whether the change at the U.N. level has been socialized into banks and other financial institutions (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024). Therefore, more time is needed for the resolution to be adopted at the domestic level for it to create changes on the ground (A. Subramanian-Montgomery, personal communication, February 08, 2024).

At the institutional level, banks are careful in their transactions because they are naturally held liable for any breach of sanctions. This could damage their reputation and, in a more business sense, affects their profit margins (A. Hall, personal communication, January 25, 2024). One of the primary reasons banks are disincentivized to process humanitarian funds is the existence of multiple levels of sanctions. The humanitarian carve-outs only apply to U.N. sanctions and currently do not apply to the uni/multilateral sanctions of those nations who have not adopted the resolution into their legislation. Therefore, banks and other financial institutions need to examine if the fund transfer breaches various other unilateral and multilateral sanctions. Due to these requirements, banks are usually unwilling to take on the risk or even dedicate time to carefully navigate this complex web (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024).

Interestingly, smaller humanitarian organizations also seem to experience the effects of resolution 2664 differently as opposed to the larger organizations. Larger humanitarian organizations are more aware of such resolutions and, with their established financial/legal teams, can use these carve-outs to transfer aid funds efficiently. However, smaller organizations tend to have more difficulties as they may not have the legal/financial resources to navigate the complex sanctions space (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024; A. Hall, personal communication, January 25, 2024; A. Subramanian-Montgomery, personal communication, February 08, 2024). It is seen that banks are also more willing to conduct financing for bigger, more reputed organizations than dedicating resources to conduct the due diligence for smaller humanitarian organizations (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024). 

Similarly, certain faith organizations, such as, in particular, Muslim faith organizations, also face trouble with accessing financial assistance. The prejudice and disinformation against them cause banks to not engage with the organizations to reduce associated or perceived risks (A. Hall, personal communication, January 25, 2024; A. Subramanian-Montgomery, personal communication, February 08, 2024).

On the other hand, an USAID official reports that they have not seen an increase in aid diversion after the resolution came into place (personal communication, February 23, 2024). However, in contrast to the reports, over time, one of the main concerns with humanitarian aid has been the problem of aid diversion, as discussed above in the case of Syria. With the humanitarian carve-out in place, one of the significant concerns became the misappropriation of funds. There has always been some spillage, some corruption, and some misappropriation of aid money, even in a universe with numerous restrictions. J. Kurtzer argues that the additional restrictions make it more difficult for the aid to reach the target audience rather than solely stopping misappropriation (personal communication, December 28, 2023). With the lifting of restrictions, in this case, the implementation of resolution 2664, even if there is misappropriation, the funds that are supposed to reach the targeted audience are being processed more easily. For example, hypothetically, consider that before resolution 2664, 99% of the aid funds reached the target audience, and 1% were misappropriated. Now, even if some funds are being misappropriated, the majority of funds which reaches the target groups extremely efficiently makes the trade-off worthwhile (J. Kurtzer, personal communication, December 28, 2023). Therefore, even if groups argue that resolution 2664 would lead to increased diversion, it can be understood as a necessary evil for the greater good – “the misappropriation will be insignificant compared to the overall gains” (J. Kurtzer, personal communication, December 28, 2023). 

L. van Broekhoven & S. Goswami support the sentiment that aid diversion has always been a concern, but one cannot have a zero-risk approach (personal communication, January 22, 2024). One also needs to note that some governments who do not support the resolution can use aid diversion as a reason not to renew the resolution. Similar concerns are raised by A. Hall, who opines that one needs to note the difference between reality and the narratives about aid diversions that are propagated as a political campaign (personal communication, January 25, 2024). A. Subramanian-Montgomery additionally presents that we need to analyze the problem of politicisation of aid diversion in a data-driven and evidence-based manner, and the response should be proportionate to the actual happenings on ground, not political whims or false narratives (personal communication, February 08, 2024). Hence, there arises a need for governments and organizations to be transparent about their findings about the resolution to create a safer humanitarian space.

Considering the multiple problems related to sanctions regimes and resolution 2664, multi-stakeholder dialogues on financial access are being held to bring NGOs, government actors, and financial actors to the table to brainstorm solutions. Since it is a multifaceted problem, there will never be one solution; instead, it would take multiple solutions to address the issues faced by the humanitarian community (A. Hall, personal communication, January 25, 2024). The communication between the different stakeholders can make the process simple consistent and reduce the mismatch between different policies. 

Analysis of Sanctions Regimes

As discussed till now, resolution 2664 provides a humanitarian carve out for all of the Security Council’s asset freeze measures. This carve-out will also apply to all new sanctions regimes put forth by the UNSC unless otherwise decided. 

The UNSC proposed this resolution after years of multilateral policy debates concerning the conflicting relationship between humanitarian values and security concerns. Some of these difficulties are explored below to provide a baseline with which the efficacy of resolution 2664 can be assessed. 

However, before delving into the detrimental effects of the sanctions regime, it is necessary to first understand asset freeze measures and the logic behind them. Like any other sanctions, financial sanctions are imposed on legal persons, governments, or other groups in order to regulate or end their perceived criminal behavior. This behavior can be described as a wide range of activities, from terrorism to the proliferation of weapons of mass destruction. In this context, an asset freeze can be described as a “temporary restriction of the right of ownership of a natural or legal person in the context of the fight against terrorism or the proliferation of weapons of mass destruction” (Financial Embargoes and Assets Freezing, n.d.). This idea is directly supported by UNSC resolution 1373 (2001), which guides countries in freezing the funds and economic resources of entities participating in these criminal behaviors. 

The targeted asset freeze measures are usually used to serve the purpose of “compelling state officials and  influential elites to pressure their government to change its behavior” (Jermano, 2023). The efficiency of such an asset freeze measure is an interesting study.

On the one hand, the U.N. sanction system has been integral in promoting peace and security in the international system. It has stopped “the flow of arms into war zones and support governments and regions working towards peaceful transitions” (Msuya, 2023). 

On the other hand, asset freeze measures have not always been effective. The same ineffectiveness can be highlighted using the example of the United States sanction of Russia. Since the 2014 Russian annexation of Crimea, the U.S. and its allies have “sanctioned more than 9,600 individuals including many Russian oligarchs, government officials, military officials and non-state regime proxies” (Jermano, 2023). These multilateral sanctions have “frozen or blocked assets worth over $58 billion” (Jermano, 2023). However, these asset freeze measures do not seem to affect Russian President Vladimir Putin’s foreign policy decisions, including his determination to continue fighting the 2022 Ukraine war. Therefore, the logic that sanctioned individuals lobbying for policy change can lead to leaders changing their behavior is clearly not always a success.  

Since the beginning of the 21^st century, terrorism has been one of the primary concerns for nation-states. As a result, UNSC and its members have adopted measures to prevent and safeguard against terrorism. One of the primary ways in which the states have ensured security is to prevent designated terrorist groups from accessing resources that can be used for the pursuit of terrorism (Hamsik & Almanza, 2021). These security measures have resulted in complex barriers to humanitarian actions, as explained below. 

Figure 1: (Hamsik & Almanza, 2021)

The paper presents the actors at multiple levels – political or administrative – applying various counter-terrorism (C.T.) measures through multiple pathways or instruments such as sanctions and asset freeze measures. These impede humanitarian organizations in multiple ways, such as restricting direct access to resources or causing other legal or technical impediments. These restrictions, in turn, have impacts that are fivefold. First, it compromises the ability of humanitarian organizations to carry out timely and efficient work, directly affecting the beneficiaries. Second, CT measures impose additional and unexpected funding or other financial restrictions, making it difficult to sustain the program. Third, humanitarian workers and staff are at increased risk of facing legal action due to the heightened suspicions of supporting terrorist groups through the cover of their work. Fourth, humanitarian workers may also face physical or emotional harm due to the same suspicions. Fifth, if any aid organization comes under false scrutiny as part of C.T. measures, they may face reputational damages, which can affect funding and their relationship with beneficiaries on the ground. 

Therefore, from the discussion, it is certain that sanctions have more disadvantages than advantages. Although it could potentially stop certain detrimental actions of actors, it has been largely noted that asset freeze measures do not tend to be effective. It also had an added humanitarian cost, making sanctions in itself fruitless. 

Analysis of Resolution 2664

Given the findings from the primary interviews, the discussion is taken forward by examining secondary literature available on the subject. 

The Win

As mentioned above, the approval of resolution 2664 has been hailed as a victory by the humanitarian community. It has been reported that days after the UNSC passed the resolution, the impact has been seen on the ground. Just after adopting humanitarian carve-outs, “humanitarian operations were able to resume and scale up” (Msuya, 2023). Likewise, it has also directly allowed people living in dire conditions to access life-saving assistance (Spoljaric, 2023). The passing of the resolution has also been perceived as a message from the UNSC that no matter the political or security context, they will not prevent people from accessing humanitarian assistance. Before delving into the analysis of the resolution, it is essential to note that the resolution has only been around for a year, and therefore, the large-scale changes it promises would still require time to be implemented. Further, due to the interconnected nature of sanctions, it is difficult to attribute the positive or negative impacts solely to the humanitarian-carve out.

That being said, like the presentation from primary interviews, wanting to extend this victory, humanitarian workers have called on member states to extend these carve-outs to other counter-terrorism measures and increasingly implement resolution 2664 (Msuya, 2023). The President of the International Committee of the Red Cross, Mirjana Spoljaric, also put forth similar improvements to extend the scope of the resolution. First, all states should, without further delay, fully implement the resolution. For the same, ICRC is extending technical assistance in implementation efforts. Second, the humanitarian exemption should be extended to other unilateral or multilateral sanctions following international humanitarian law as they have similar humanitarian consequences as general UN sanctions. Third, member states must demonstrate the same political enthusiasm to other areas of counter-terrorism regulations (Spoljaric, 2023). 

Further, theoretically, the resolution can resolve the five main problems faced by humanitarian workers due to C.T. measures, as raised by Hamsik & Almanza (2021). As resolution 2664 provides humanitarian exceptions to asset freeze measures, aid workers and organizations are now less prone to suspiciousness regarding their perceived terrorist affiliations. This can save them from reputational, legal, and security damages. This can then lead to continued financial assistance, allowing the aid workers to carry out their operations promptly and efficiently. 

To explain further, reports suggest that the resolution has brought about more legal certainty, creating a comfortable environment for different stakeholders – humanitarian organizations, the private sector, member states, and donors – to function in sanctioned environments (Debarre, 2023). It has also created a conducive environment for open dialogue, as the stakeholders are now less worried about sharing information that can otherwise be interpreted as a breach of financial sanctions (Debarre, 2023). This legal freedom is also now slowly translating to freedom in the banking system. For instance, humanitarian organizations are finding it easier to transfer aid funds through formal banking systems for countries such as the Democratic Republic of the Congo (Debarre, 2023). This can largely be due to the reduced investigation by the banks after adopting the resolution (Debarre, 2023). There is also the fact that the resolution has made humanitarian work simpler (or maybe even legal) in places such as Yemen or North West Syria, where “financial transactions with listed entities cannot be avoided, such as the payment of utility taxes for offices, or income and social security taxes for staff” (Debarre, 2023).

The Challenges

Resolution 2664 has numerous positives, as discussed above. However, like the experts said, there are also a few challenges with its implementation and practice. For instance, as discussed during the primary interviews, the humanitarian carve out only applies to U.N. sanctions regimes. It does not apply to U.N. counter-terrorism resolutions or even other state or regional sanctions and counter-terrorism measures. Due to this restricted application, when humanitarian workers have to navigate numerous legal and policy measures, the legal risk and uncertainty associated with humanitarian work are not entirely eliminated (Debarre, 2023). Likewise, other restrictive clauses, such as those in donor agreements, continue to persist in the humanitarian space (Debarre, 2023).

Furthermore, even though the resolution facilitates the continuation of humanitarian activities, it can only fully function if it is entirely and properly implemented by the member states (Debarre, 2023). To date, only a few entities, such as the United States, United Kingdom, and European Union, have adopted the carve-out into their domestic legislation. Spoljaric opines that since humanitarian carve-outs have yet to be fully implemented, the ICRC continues to face barriers. For instance, in some situations, the organization is unable to obtain parts to maintain critical infrastructure, such as water supply systems, because of sanction barriers. The problems of implementation also extend further.

To explain, the multiple steps in implementing an asset freeze measure need to be explored. First, a list of all persons and entities whose assets and financial resources are to be frozen is compiled. Thereupon, member states ratify this list following their respective domestic procedure and apply it to the financial institutions governed by their law. Under the law of their member states, parent companies are also to ensure that the asset freeze measure is implemented across all their institutions and countries where they have a presence. 

The member states then have to set up a monitoring system to screen customer databases and monitor transactions of receipts, funds, financial instruments, or other economic resources. This system is to be implemented to ensure that the customers or beneficiaries of the transactions are not subject to asset freeze measures  (Financial Embargoes and Assets Freezing, n.d.). They are to detect all those resources that the sanctioned entity owns. Control or those that they have access to directly or indirectly. Concerns are attached to these monitoring systems, such as dealing with customers with identification data similar to sanctioned entities. 

From the discussion above, it is clear that implementing and practicing asset freeze measures is a complicated process. The resolution 2664 provides humanitarian carve-outs for asset freeze measures. Now the question arises: how will these carve-outs be implemented technically? Theoretically, the member states and their financial institutions will now have to implement stricter monitoring systems to ensure that funds for humanitarian activities are indeed being used for such and do not, directly or indirectly, aid the activities of sanctioned entities. 

Further, resolution 2664 promises to unravel the complex web of processes – supply chain administration, transfer of goods, financial services, and legal services – that humanitarian workers otherwise would have to navigate (Kapoor et al., 2023). However, given the difficulties in implementation discussed above, one has to wonder if the resolution will successfully simplify the ecosystem. 

Recommendations

As mentioned by A. Hall, the sanctions space has multiple issues; therefore, resolving them would take multiple solutions (personal communication, January 25, 2024). The following sections present various recommendations for the resolution given by the experts and their analysis. A combination of these recommendations are necessary to attempt to solve the current issues caused by the sanctions regime and resolution 2664. It is important to note that these do not promise to resolve all issues caused by the regime but rather only aim to resolve the current issues discussed in this paper. Problems caused by the implementation or removal of restrictions are similar to wicked problems; therefore, a constant assessment of the conditions and solutions is necessary to have consistent improvement.

1. From the section on analyzing the sanctions regime, it is evident that sanctions have more disadvantages than advantages. They also have a glaring humanitarian problem. Therefore, one of the main recommendations is to remove sanctions entirely. However, since this move may not be widely accepted and practical, the system should aim to keep a time limit for each sanction. After evaluation after each period, the sanction can be renewed to see whether the intended outcomes are achieved (J. Kurtzer, personal communication, December 28, 2023). By such a move, if the sanctions prove ineffective, other measures can be taken without jeopardizing humanitarian work.
2. After the resolution, exchanging information via multi-stakeholder dialogue is critical to ensure transparency. Initially, banks were seldom in the room when these financial matters were discussed (J. Kurtzer, personal communication, December 28, 2023). So, it is essential to get more representation in the stakeholder dialogues. These meetings can increase transparency between financial institutions, aid workers, governments, and other entities, which is essential for the resolution to be implemented and function efficiently (Safeguarding Humanitarian Banking Channels, 2023). This transparency is also important to keep issues such as aid diversion in check.
3. From the discussions on sanctions, it is clear that de-risking appetite exists due to misinformation about carve-outs or the absence of incentive to pursue various financial measures. To counter these numerous logistical issues, why not establish a humanitarian bank? (J. Kurtzer, personal communication, December 28, 2023). Like specialized banks like export-import banks, World Bank, and IMF, a humanitarian bank can concentrate solely on dealing with humanitarian aid and other financial requirements related to humanitarian work. These banks can understand the unique regulatory requirements of humanitarian work and hence solve the information and technical gap. A specialized bank of such a nature would also be able to provide equal support to all types of humanitarian organizations – large, small, and different faith organizations – without discrimination. 
4. Finally, it is now essential for member states to increasingly adopt the resolution at the domestic legislation level to avoid the conflict between international resolution and domestic policy. They also need to extend their application to include other uni/multilateral sanctions regimes and counter-terrorism measures (Safeguarding Humanitarian Action in U.N. Sanctions and Counter Terrorism Regimes: The Impact and Implementation of Resolution 2664, 2023; Debarre, 2023). The resolution, including the aspects of the ISIL and Al Qaeda regimes, needs to be examined over time to understand the efficacy more deeply (L. van Broekhoven & S. Goswami, personal communication, January 22, 2024; A. Hall, personal communication, January 25, 2024). As with most resolutions, 2664 would need time to change the international humanitarian system drastically.

Conclusion

This paper aims to examine the practicality and implementation of resolution 2664. Experts reiterate that the resolution has been a good step forward as it reduces the complexities and widespread humanitarian issues with sanctions regimes. However, even though a year has passed, it has not made giving aid easier. Most member states have not adopted the resolution, so there is a conflict between the resolution and national counter-terrorism measures. The socialization of the resolution into banks and other financial institutions remains to be seen. From an institutional perspective, banks are disincentivized to conduct humanitarian transactions due to high risk, and to manage the same; they cater to larger humanitarian organizations rather than smaller ones. Aid diversion under resolution 2664 is also discussed with the conclusion that the gains outweigh the cost of misappropriation.

Analyzing the sanctions regime puts forth the fact that asset freeze measures may have a few benefits, but their disadvantages often overshadow them. Not only are they ineffective in achieving their mere aim of changing policy decisions, but they also cause immense humanitarian concerns. 

The resolution is definitely a win in theory, as it allows humanitarian assistance to reach the target groups more efficiently. The resolution also brings legal certainty, which makes the system more secure for aid workers and reduces banks’ de-risking approach. However, there are a few challenges that exist with the resolution. Like the primary interviews presented, many member states have not adopted the resolution, and it cannot be practiced as it conflicts with the existing domestic policies. The technicality of implementing the resolution at the bank level also remains in question. 

For the problems discussed, four main recommendations are provided. One, there should be a constant examination of each sanctions regime to analyze if they have achieved their outcomes and to keep in check the humanitarian costs. Two, increased multi-stakeholder dialogue needs to be conducted to facilitate transparency between all concerned entities. Three, a humanitarian bank could be established to streamline humanitarian work and thereby develop an international institution with the expertise to resolve complex humanitarian financial issues. Finally, the member states should increasingly adopt the resolution and extend its application even to other counter-terrorism measures. Therefore, the analysis and recommendations presented by this seminar paper can then help guide improvements and better implementations of humanitarian policies.

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Appendix A

Questionnaire for Qualitative Semi-Structured Interviews

This appendix consists of the questions asked to humanitarian scholars to gain more insights into how the passing of resolution 2664 has affected the delivery of humanitarian aid on ground/in real time

1. Has the resolution translated to practise in country operations yet? To what extent?
2. Have there been any difficulties such as say logistical issues with practising 2664?
3. How has the resolution changed access to humanitarian aid?
4. Has the resolution made giving aid easier?
5. Do you think financial institutions will still be sceptical about processing funds because there still exists the probability that these may end up in the wrong hands?
6. The resolution 2664 is understood to be applicable to ISIL and Al-Qaida regimes. Many entities are worried that this could have some negative effects. Could you throw some light on the same?
7. Who are the main actors affected by these sanctions, and the carve outs?
8. What improvements can you suggest to this resolution?

Statement of Adherence to Ethical Practices

This research has been conducted with the help of primary research – interviews of six subject matter experts. I have adhered to ethical practices and have gained necessary consent from the interviewees.