What's In Blue

Posted Tue 21 Dec 2021

Afghanistan: Vote on 1988 Sanctions Resolution*

Tomorrow morning (22 December), the Security Council is expected to vote on a draft resolution on the 1988 Afghanistan sanctions regime, which addresses the provision of humanitarian aid to Afghanistan.

The draft text in blue determines that “humanitarian assistance and other activities that support basic human needs in Afghanistan” will not constitute a violation of paragraph 1 (a) of resolution 2255 of 22 December 2015, which prohibits the provision of funds, financial assets, or economic resources to individuals listed under the 1988 Afghanistan sanctions regime. It indicates the Council’s intention to “review the implementation of this provision after a period of one year”. The draft resolution in blue also requests OCHA’s Emergency Relief Coordinator to brief the Security Council every six months on the delivery of humanitarian assistance to Afghanistan, including on the payment of funds to designated individuals or entities, the diversion of funds by these individuals and entities, and obstacles to the provision of aid.

Background

Following the Taliban’s seizure of power, several designated individuals on the 1988 sanctions list are now in charge of de facto government ministries or other de facto government entities with which humanitarian organisations regularly have transactions. Significant uncertainty as to whether these transactions comply with the 1988 sanctions regime led to operational difficulties for humanitarian organisations that provide aid to the Afghan population, including by impeding their access to donor funding.

Several interlocuters have consistently conveyed to the Council the urgency of addressing the dire humanitarian situation in Afghanistan. The latest Integrated Food Security Phase Classification (IPC) report on Afghanistan, which was issued on 25 October, warned that 22.8 million Afghans will face crisis or emergency levels of acute food insecurity between November 2021 and March 2022, a 35 percent increase from the same period the previous year. On 13 September, the Secretary-General launched a flash appeal seeking $606 million for the provision of humanitarian assistance to 11 million Afghans across several different sectors, including food security and agriculture, education in emergencies, water, sanitation and hygiene, health, nutrition, and protection.

OCHA’s 22 November Afghanistan Inter-Cluster Coordination Team Real-Time Response Overview, which aims to provide a summary of humanitarian activities carried out in each of the sectors identified in the Secretary-General’s flash appeal, calls for the exclusion “of transactions and other activities required for humanitarian operations…from the scope of sanctions regimes to allow humanitarian activities to continue without impediment”. In a briefing delivered to the 1988 Sanctions Committee on 30 November, representatives of OCHA, the World Food Programme (WFP), and the UN High Commissioner for Refugees (UNHCR) apparently provided a detailed overview of the difficulties that humanitarian organisations have faced in Afghanistan because of the obligations imposed by the 1988 sanctions regime.

Negotiations

The negotiations on the draft resolution, which was proposed by the US— the penholder on the Afghanistan sanctions file—were apparently difficult. It seems that China questioned whether a resolution is necessary and suggested that a technical guidance note from the 1988 Afghanistan Sanctions Committee or a Security Council presidential statement confirming that the 1988 sanctions do not apply to humanitarian activities may be more appropriate. Russia apparently supported China’s position. In addition, sharp divisions emerged during the negotiations between members which supported a short time limit for the provisions of the resolution and stricter reporting requirements— such as France and India— and those who did not want a set time limit for the resolution’s provisions, such as China and Russia.

The US circulated the zero draft of the resolution on 3 December and convened an initial round of negotiations on 6 December. An amended draft was distributed prior to the second round of negotiations, which took place on 8 December. The US then placed a revised draft under silence on 10 December, until 13 December. Silence was broken by China, France, India and Russia. The US held bilateral negotiations with China and Russia and convened a further round of negotiations with all Council members on Friday (17 December). An amended draft, which apparently addressed some of China and Russia’s concerns, was placed under silence on Saturday (18 December), until yesterday (20 December). Silence was broken by China, France, the UK and Russia. The US then placed a revised draft, which apparently addressed some of the concerns expressed by France and the UK, in blue today (21 December) at approximately 5 PM EST. That draft was apparently unacceptable to China, and after further bilateral negotiations, the US put a revised draft in blue, which incorporated China’s proposal, at approximately 6 PM EST.

It seems that one of the key disagreements during the negotiations centred on the time limit for the exemption. The zero draft of the text apparently imposed a nine-month time limit. Certain members, such as China and Russia, argued that the exemption should not be subject to a time limit, contending that a temporal restriction would not provide the predictability and flexibility humanitarian organisations require to operate efficiently. These members also expressed the view that if the Council did decide to impose a time limit, a 12-month period would be more appropriate. Other members— including France, Estonia, India and the UK— advocated for a shorter time limit of six months. These members maintained that the Council should review the exemption within a shorter time frame because of the dynamic nature of the situation on the ground. A draft resolution that was put in blue by the US today (21 December) at 5 PM EST established a 12-month limit for the exemption. However, this was apparently unacceptable to China and after further bilateral negotiations, a new draft was put in blue by the US approximately an hour later. That draft, which will be voted on tomorrow, does not place a time limit on the exemption. It contains additional language noting that the Council will “review the implementation of this provision after a period of one year”.

It appears that the frequency of the reporting requirement on the provision of humanitarian assistance by humanitarian agencies was another matter of discussion during the negotiations. The zero draft requested the Emergency Relief Coordinator to brief the Council within 60 days and provide a written report every 60 days until the resolution expires. Another iteration of the draft text requested OCHA to provide a separate, more detailed account to the 1988 Sanctions Committee, in addition to its reporting to the Council.

It seems that some Council members argued that strong oversight is required because humanitarian funds might be diverted to terrorist groups. It appears that these Council members also wanted to ensure that mandatory reporting requirements were imposed on non-UN humanitarian organisations relying on the exemption. Other members opposed these reporting requirements on the basis that they create an undue burden for humanitarian organisations. In an apparent compromise, it was decided that OCHA would bear the primary responsibility for reporting on humanitarian assistance in Afghanistan while the exemption is in place. In addition, it seems that the timeframe for providing these reports was extended to address the concerns of Council members who argued that the reporting requirements are too onerous.

Language relating to human rights was apparently another matter of discussion during the negotiations. The draft text in blue includes an operative paragraph which calls on all parties to respect the human rights of “all individuals, including women, children, and persons belonging to minorities, and comply with their applicable obligations under international humanitarian law”. It further demands that all parties allow unhindered humanitarian access for “the personnel of United Nations humanitarian agencies and other humanitarian actors regardless of gender”. This provision was strongly supported by several Council members, including European members of the Council and Mexico. However, other members apparently argued that this language could politicise the provision of humanitarian assistance. Despite objections from these members, the language was retained in the draft text in blue.

It seems that during the negotiations, China and Russia argued that the exemption should include bilateral humanitarian aid. Therefore, an iteration of the draft resolution apparently specified that “member states” were included within the scope of the exemption to accommodate this proposal. However, this language was ultimately not retained in the draft text in blue. It seems that other members felt that the text’s reference to “humanitarian assistance and other activities that support basic human needs” encompasses all relevant provision of aid, including that provided by member states.

A proposal by the US to include a provision allowing the 1988 Sanctions Committee to exempt on a case-by-case basis development assistance to Afghanistan was apparently unacceptable to other members and was not retained. It seems that the US argued that some development assistance which can facilitate the delivery of humanitarian aid into Afghanistan, such as help in repairing transport hubs, should also be exempt from the obligations imposed by the 1988 sanctions regime. However, some members felt that this provision could widen the scope of the resolution too far beyond the delivery of humanitarian aid and it was not included in the draft text in blue.

* Post-script (21 December, 11:30 pm): After the finalization of this story, a new draft was put in blue by the US at 6 PM EST, following further bilateral negotiations with China. A previous version of this story referenced the contents of the draft which was placed in blue at 5 PM EST, noting a 12-month limit to the resolution’s provisions. The story was revised to reflect the contents of the amended draft in blue, which does not establish a time limit for the resolution’s provisions and calls for a review by the Council after one year.

** Post-script (22 December, 9:00 am): The Security Council unanimously adopted resolution 2615, which determines that humanitarian assistance to Afghanistan will not constitute a violation of the 1988 Afghanistan sanctions regime. The resolution indicates the Council’s intention to review the implementation of this provision after one year.