Since 9/11, sanctions have become a central foreign policy tool to promote national security and coerce governments and bad actors. In practice, however, sanctions often prevent civil society from delivering development and humanitarian assistance rather than punish those responsible for the crisis. This harms vulnerable civilian populations and is inconsistent with peacebuilding and conflict prevention legislation enacted by Congress. As violent conflict hits a 30-year high globally, the U.S. government must urgently revise its approach to sanctions. It appeared poised to do so when the Biden administration conducted a nine-month, multi-agency review of U.S. sanctions policy. However, the Treasury Department’s newly released seven-page report of their findings suggests that the administration is unwilling to heed the lessons of the last 20 years.
The report of the review is notable for proposing to issue licenses for humanitarian assistance on the front end — when sanctions are imposed, rather than after the fact and often years after the sanctions are issued. However, far more striking is what is absent. The report lacks any reference to peacebuilding, human rights, democracy and governance, rule of law, education, and other assistance that aids vulnerable populations and reduces drivers of conflict and violent extremism. Peacebuilding activities, in particular, are critical to addressing conflict drivers and preventing violent conflict and extremism, as Congress recognized in an emerging canon of law it enacted to confront these challenges, such as the Global Fragility Act (GFA) and Women, Peace, and Security (WPS) Act. The administration’s failure to account for peacebuilding and other crucial civic and development activities in its sanctions policy review makes clear that it is time for Congress to act.
A Missed Opportunity
Upon the release of the report, many focused on its warnings about the threat from cryptocurrencies, and little attention was given to the fact that it contains virtually no major substantive policy shifts or recommendations. At a recent congressional committee hearing on the review, Senators asked Deputy Treasury Secretary Wally Adeyemo to provide examples of where U.S. sanctions have been ineffective. The thrust of his response: “We did not spend time looking at the individual sanctions policies.” However, if you do not look for problems, you will not find any.
This review was a significant missed opportunity to reimagine how to utilize sanctions; address how counterterrorism laws failed to keep pace with evolving security challenges and new programmatic approaches necessary to combat violent conflict and extremism and build sustainable peace; and offer viable and pragmatic solutions. Instead, the report asserted Treasury would simply “continue to review its existing authorities to consider the unintended consequences of current sanctions regimes on humanitarian activity … as well as potential changes to address them.”
The report further fails to reflect on the lessons learned through the dramatic uptick in sanctions’ usage in the past two decades — a 933% increase, according to the review. While the report congratulates the administration on its consultations with civil society throughout the review process — and numerous organizations, such as ours, weighed in through letters and meetings with officials — there is little evidence of these inputs incorporated in the report. (Disclaimer: The Charity & Security Network, where one of us serves as Director, provided feedback during the review process through public letters and during meetings with Treasury on behalf of our network, which includes the Alliance for Peacebuilding, where one of us serves as Director of Policy and Advocacy, as a member.)
Additionally, despite the administration calling for an impact assessment of sanctions on humanitarian aid and the global pandemic response, which will reportedly build on this review, the report did not mention COVID-19 at all and failed to adequately address the harmful impacts of sanctions on civilian populations more broadly — such as by blocking much needed development and humanitarian assistance. Humanitarian, peacebuilding, human rights, and other development and civil society organizations operating in sanctioned contexts face criminal and civil liability for incidental contact with sanctioned entities and remain mired in a status quo that has a chilling effect on their ability to work. This risk persists despite the highly developed due diligence systems and procedures organizations follow to ensure that funds and other resources are not misdirected to unintended actors or terrorist groups. Many civil society organizations have impressive expertise and experience operating in the world’s most challenging contexts and devote outsized time and money to safeguard against such leakage. Thus, the reflexive and overly-broad approach to sanctions undermines the Biden administration’s stated commitment to human rights and threatens civil society programs that serve vulnerable populations and promote U.S. and global security.
A Glaring Omission: Peacebuilding and Other Critical Assistance
One of the few highlights of the review was the report’s proposal to issue licenses for humanitarian goods and assistance upon the imposition of sanctions, rather than after the fact. The administration deserves credit for applying this constructive approach recently with respect to Ethiopia. However, the failure to identify specific policy steps to “expand sanctions exceptions” for humanitarian, peacebuilding, and other civil society programs is a glaring omission in the report.
The report makes no mention of the critical aid that reduces drivers of conflict and violent extremism, including peacebuilding, democracy and governance, rule of law, human rights, and education. Congress recognized the importance of supporting these activities in the GFA, the WPS Act, and the Elie Wiesel Genocide and Atrocities Prevention Act (EWGAPA). These laws, which enjoyed bipartisan support, not only recognized the root causes of conflict and state failures, but called for cross-government strategies and funding to address them. Taken together, they aim to rectify and limit problems that foment conflict, create fragile governments, inhibit social cohesion, cause democracy backsliding, increase marginalization, and lead people to join extremist groups. Furthermore, the activities outlined in these prevention-oriented laws save money and lives. Research strongly suggests diplomatic, development, and peacebuilding initiatives — particularly those led by and engaged with civilians and civil society — are more cost effective at preventing the outbreak or recurrence of conflict than military approaches. Every dollar invested in prevention and peacebuilding saves an estimated $16 that would otherwise be spent on security interventions. Simply doubling peacebuilding funding in 31 of the most fragile and conflict-affected countries would save $2.94 trillion over 10 years.
Unfortunately, the current sanctions regime frustrates the realization of these laws’ intent to prevent and reduce conflict and violence; undermines efforts that support nonviolence, prevent violent extremism, and foster inclusive peace processes; and can give rise to costlier securitized engagement. Sanctions inhibit the U.S. government and its non-governmental organization (NGO) partners from operating in the contexts where implementation of the GFA, WPS Act, and EWGAPA are most vital. While some of the legislation that authorizes sanctions allows for civil society programs, the executive branch is given broad discretion and habitually shuts the door on these programs, particularly with respect to peacebuilding. Peacebuilding and other development activities are too often decoupled from sanctions exemptions and licenses issued by Treasury’s Office of Foreign Assets Control (OFAC). This approach fails to recognize that both peacebuilding and humanitarian efforts address drivers of conflict and extremism — often the very causes of the imposition of U.S. sanctions themselves — and can be doubly effective when NGOs from each sector work in tandem. These collective efforts, which allow the United States and its partners to outcompete extremists and reduce violence, serve to promote U.S. and international security.
Marginalizing peacebuilding and other vital assistance exacerbates the problems associated with the United States’ siloed sanctions approach. U.S. government-supported efforts to counter violent extremism cannot assist individuals who have left a foreign terrorist organization or Specially Designated Global Terrorist entity under their own accord without an official demobilization, disarmament, and reintegration (DDR) or similar disengagement process. These processes can take years to put into place, resulting in reduced incentives for individuals to leave these groups. U.S. government-supported projects and NGOs could provide immediate and flexible demobilization and reintegration assistance to communities, creating a valuable off-ramp to incentivize individuals to leave these groups. Such efforts would support the successful implementation of the GFA, WPS Act, and EWGAPA, but remain illegal in light of the sanctions laws and the material support prohibition, thereby subverting security by leaving more extremists on the playing field.
Even when there are exceptions to sanctions made or licenses provided by OFAC, too often they focus solely on humanitarian aid and are issued after the imposition of sanctions. After Kabul fell in August to the Taliban, OFAC issued Specific Licenses and two General Licenses for humanitarian aid to Afghanistan. These licenses are the latest example of the U.S. government deprioritizing peacebuilding, human rights, and other development assistance despite the prevention-oriented laws passed by Congress that specifically call for prevention programming. A robust humanitarian response is essential to address the catastrophic humanitarian needs in Afghanistan, but the General Licenses that protect organizations from legal liability fail to recognize that peacebuilding activities are often imperative to facilitate the delivery of humanitarian aid. Ultimately, the sanctions regime, while seeking to punish and moderate the behavior of the Taliban, instead, most adversely impacts Afghan civilians grappling with conflict, human rights violations, violent extremism, food insecurity, and COVID-19.
Next Steps for Congress
While the executive branch has the authority to issue sweeping exceptions that can facilitate the delivery of peacebuilding, humanitarian, and other vital aid, successive administrations have consistently failed to do so. In the absence of effective executive action to address the pitfalls of the post-9/11 sanctions regime, Congress must step in. Congress should use all available legislative levers to address the harmful impacts of sanctions. Below are actions Congress should take to fix U.S. sanctions policy.
- At a minimum, Congress must immediately press the administration, including through follow-up hearings on its sanctions approach in Afghanistan and globally, to provide substantive recommendations and policies to address the harmful effects of sanctions, including on the impact on civilians and civil society organizations; the implementation of key prevention-oriented laws, such as the GFA and WPS Act; and the global response to COVID-19. These policies should prioritize the allowance of operations of humanitarian, peacebuilding, and other development organizations in sanctioned contexts where they have appropriate safeguards to prevent diversion.
- Congress should also fix “material support” laws to codify humanitarian and peacebuilding exceptions to protect NGOs from legal liability while delivering life-changing and life-saving aid and conflict prevention programming in sanctioned contexts. Specifically, Congress should exempt peacebuilding and humanitarian NGOs from prosecution or civil penalty for transactions that are “ordinarily incident and necessary” to the delivery of critical assistance, such as taxes, duties, and road tolls; and the provision of training, expert advice, and assistance to build peace, reduce conflict, prevent extremism, and facilitate inclusive peace processes; among other peacebuilding activities. Congress should also pass legislation that exempts NGOs from prosecution for any activities licensed by the Treasury Department, in addition to the current exception authority of the Secretary of State and Attorney General pursuant to 18 U.S.C. § 2339B(j). The Senate can act now, as the FY 2022 National Defense Authorization Act (NDAA) currently under consideration provides a key vehicle for Congress to address the “material support” prohibition and carve out exceptions for humanitarian, peacebuilding, education, and other assistance broadly and in specific contexts, such as Afghanistan.
- The Senate conference committee working to finalize the FY 2022 NDAA should also retain an amendment, already passed by the House, that would require the Government Accountability Office to report to Congress on the impact of sanctions on civilians and their efficacy in achieving their stated goals.
Twenty years of experience demonstrates how sanctions often harm vulnerable populations and create the conditions for increased radicalization, violence, and human suffering — all of which subvert U.S. national security interests. As climate change and COVID-19 compound crises and increase violent conflict, there is an urgent need to revamp the U.S. approach to sanctions to enable timely and effective humanitarian, peacebuilding, and development interventions. If the administration is unwilling to advance a new approach, as Treasury’s sanctions review suggests, Congress must act.