An overview of sanctions challenges, questions regarding HTS’s terrorist organization status, and a few recommendations for U.S. policy toward Syria.
The sudden collapse of the Assad regime in Syria promises to present policymakers with a dizzying array of legal and policy challenges in the weeks ahead. Foremost among them is how to reconcile the need to engage with post-Assad Syria with the dense thicket of international and U.S. sanctions that currently apply to it—an issue further complicated by the fact that the group that now appears to be in charge of Damascus and other key parts of western Syria, Hay’at Tahrir al-Sham (“HTS”), is itself a heavily sanctioned terrorist organization.
To date, external discussions have mostly focused on HTS’s designation as a terrorist organization and whether that status warrants reconsideration in light of the group’s expanded governing role and recent efforts by its leader, Abu Mohammed al-Jawlani, to pivot towards more moderate public messaging. But these discussions often miss the forest for the trees. HTS’s status as a terrorist organization is not necessarily the main sanctions barrier to engaging with populations and territory under its control. Nor do the sanctions-related problems facing post-Assad Syria end with the status of the organization now in control of its capital. Rather, a complex web of sanctions, export controls, and other comprehensive legal and economic measures blankets the country, presenting an array of serious legal and policy impediments to engagement with post-Assad Syria if left unaddressed.
In this piece, we provide an overview of some of these sanctions challenges. After a deep dive into the most immediate questions regarding HTS’s status as a terrorist organization, we then lay out the landscape of additional sanctions challenges looming on the horizon. Finally, we end with a few recommendations for how policymakers may best approach these issues.
HTS as a Foreign Terrorist Organization
No one knows who will eventually succeed the Assad regime as the government of Syria. But by virtue of its central role in the rebel coalition that ultimately ousted the prior regime, HTS seems almost certain to have a prominent seat at the table. The Salvation Government that has emerged as the de facto authority in parts of western Syria now held by the rebel coalition is headed by interim Prime Minister Mohammad al-Bashir, who previously led the de facto regime in those parts of Idlib province and Aleppo previously under HTS’s control. HTS is likely to have a similarly influential hand in whatever arrangements follow that regime if and when it resigns in March as it has promised.
HTS’s own origins lie with the Nusrah Front, an organization that HTS’s current leader al-Jawlani—a veteran operative of al-Qaeda in Iraq—founded in 2011 to be the official Syria branch of al-Qaeda. The United States targeted Nusrah Front with airstrikes in September 2014 as part of the same initial airstrikes that kicked off its extended military campaign against the Islamic State. The two organizations ultimately came to blows in their competition to control parts of Syria, and Nusrah Front formally broke from al-Qaeda in 2016, before merging with a number of other armed groups in northwest Syria to form HTS. But Nusrah Front and HTS are often still treated as synonymous at least by many foreign sanctions regimes. As described by the U.S. intelligence community, HTS has in recent years “place[d] a priority on antiregime activities” as opposed to terrorism against foreign targets. It’s also adopted a somewhat more moderate posture in governing Idlib, including by allowing Christian communities to exercise their faith and permitting women more latitude in how they dress and engage in public life. But its ties to al-Qaeda and past history of terrorism leave it vulnerable to designation as a terrorist group.
Internationally, both HTS and several of its leaders, including al-Jawlani, are designated under the sanctions regime originally established by U.N. Security Council Resolution 1267 (and reinforced by Resolutions 1989 and 2253), which targets individuals and organizations associated with al-Qaeda. Under this regime, U.N. member states have an obligation to “[f]reeze without delay” any assets a designated entity has within their jurisdiction and “ensure that neither these nor any other…economic resources are made available, directly or indirectly for such persons’ benefit….” Most member states comply by applying their own bilateral sanctions against any U.N.-designated entities, though the effectiveness of such implementation can vary.
For its part, the United States implements these global sanctions obligations—and imposes its own broader array of terrorism-related sanctions—through a number of individual sanctions regimes. The main regime, which the executive branch has set up through executive orders pursuant to statutory authority provided to it by the International Emergency Economic Powers Act (IEEPA) and U.N. Participation Act, applies to individuals and organizations that U.S. officials have designated as Specially Designated Global Terrorists (SDGTs). Both HTS and several of its members, including al-Jawlani, have been designated SDGTs under this regime. Among other restrictions, SDGTs are generally subject to a near complete asset freeze, meaning individuals and organizations are barred from transacting with them and those possessing designated entities’ assets are directed to hold them in place. Persons and individuals subject to U.S. jurisdiction who fail to comply with these restrictions can face serious civil and criminal liability, as well as the prospect of being designated as an SDGT themselves.
Separately, the United States has also designated HTS (but not its individual members) as a Foreign Terrorist Organization (FTO) under section 219 of the Immigration and Nationality Act, triggering a separate set of sanctions and related legal restrictions rooted in their own statutory authority. The economic sanctions tied to FTO designation are more or less identical to those applied to SDGTs, resulting in a near complete asset freeze. Importantly, however, anyone who knowingly provides material support or resources to a designated FTO (or attempts or conspires to do so) is also subject to criminal prosecution under U.S. material support for terrorism statutes.
How these FTO and SDGT designations will apply to Syria’s current interim administration—and any regime that may follow—is not entirely clear absent new guidance from the U.S. government. Insofar as HTS “so dominates and controls” the emerging regime or parts of it to the extent “that they must be considered principal and agent[,]” then those dominated and controlled elements would likely be treated as an alias of HTS and thus subject to the same sanctions, at least under U.S. law. (Other states’ approaches may vary.) But if HTS were to dissolve or actually allow another independent regime to govern Syria, then those entities would not automatically be considered subject to the same sanctions as HTS. (That said, as discussed below, they may well be sanctioned independently.) Of course, individuals who are independently sanctioned, like al-Jawlani, would continue to be subject to those sanctions even if placed in the new Syrian government. So would any apparatuses of government under their control to the point that they must be considered an alias.
The various economic restrictions associated with these sanctions designations can present a major policy problem when a sanctioned entity controls territory. Private actors operating within a territory almost always have to engage in some sort of economic transaction with whoever is in control of that territory—for example, to pay relevant taxes and fees. Even where there aren’t direct contacts, economic transactions within controlled territory can sometimes redound to the benefit of the entities that control them in ways that might run afoul of sanctions restrictions. As a result, humanitarian organizations may be unable to deliver much needed assistance in areas under the control of designated entities for fear of running afoul of sanctions restrictions. Similarly, private actors may be unable or unwilling to do business there, undermining economic activities that are essential to the civilian population.
For better or worse, however, this is not the first time in recent memory that territory has fallen under the control of a heavily sanctioned terrorist organization. And in recent years, policymakers have developed a strategy for reconciling the objectives of counter-terrorism sanctions with the need to provide for the well-being of civilian populations unfortunate enough to fall under their control.
Specifically, in 2022, the United National Security Council adopted Resolution 2664, which implemented a humanitarian exception to U.N. counter-terrorism sanctions. The exception authorizes otherwise prohibited economic transactions “necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs” by U.N. agencies and various humanitarian organizations. Earlier this month, the Security Council voted to extend the exception past its initial two-year trial period. In doing so, it cleared the way for a diverse array of humanitarian activities in areas under the control of U.N.-designated entities.
Several individual member states have gone even further in implementing this exception, including the United States. Both the FTO and SDGT sanctions regimes are subject to various licenses authorizing what would otherwise be prohibited economic transactions. Since 2022, these have included licenses authorizing economic transactions necessary for both official U.S. and international organization activities as well as those necessary for nongovernmental organizations to pursue humanitarian, democracy building, educational, non-commercial development, environmental, and peacebuilding projects.
Together, the humanitarian exceptions adopted by the U.N. Security Council and the United States open the door to an array of essential humanitarian and related activities, even where they may involve transactions with HTS and its members. But they do not necessarily clear the way for private economic transactions, governmental functions, and other important activities that the sanctions on HTS might chill. For this reason, the United States has occasionally gone even further in installing licenses where other territories have fallen under the control of an FTO or SDGT. For example, since 2007, licenses in both the FTO and SDGT regimes have authorized “all transactions otherwise prohibited” with the Palestinian Authority, despite their then-ties to Hamas, a designated FTO and SDGT. More recently, in relation to Afghanistan and its control by the Taliban (an SDGT but, importantly, not an FTO), the Treasury Department issued a general license in 2022 exempting “all transactions involving Afghanistan or governing institutions in Afghanistan” from otherwise applicable FTO and SDGT sanctions, except for transactions with certain designated entities that are unrelated to pseudo-governmental functions. If it is serious about allowing the international community to re-engage with those parts of post-Assad Syria under HTS’s control—or if it becomes concerned that sanctions may undermine humanitarian conditions there—then the United States may well consider installing similar broader licenses in relation to HTS or any successor government in which it plays a prominent role.
There is one sanction specifically associated with FTOs, however, that such licenses cannot carve out: the threat of criminal prosecution for providing material support for terrorism. The U.S. criminal statutes outlawing material support do not provide for exceptions to such liability, meaning anyone who provides material support to an FTO—even where exempted from economic sanctions by a license—arguably risks criminal prosecution. While the Justice Department can signal its intent to exercise prosecutorial discretion and refrain from prosecuting certain cases, such decisions are not legally binding and may be reversed by the executive branch at any time. Even where the federal government declines to prosecute, providing material support to an FTO can also provide a legal basis for massive civil liability under U.S. law, at least where there is a nexus between that support and a terrorist attack that injures U.S. nationals. As a result, even where the individuals and organizations with ties to the United States may be unwilling to engage in economic transactions with FTOs, even where exempted from relevant economic sanctions. This chilling effect can in turn have severe economic and humanitarian consequences for areas controlled by FTOs.
Removing HTS’s designation as an FTO is a legally available option for the United States. While HTS undoubtedly meets the criteria to be designated as an FTO, the decision to do so is discretionary under the statute and delisting is permitted wherever the Secretary of State determines that “the circumstances that were the basis for the designation have changed” or “the national security of the United States warrants a revocation.” Nor is FTO designation necessary for the United States to meet its U.N. sanctions obligations under the 1267 regime, as HTS could remain designated an SDGT and subject to all associated sanctions. That said, as a matter of practice, delisting an FTO can be contentious and trigger objections, both within the interagency and from Congress. It also raises a number of other, broader policy considerations, including aspects of the broader U.S. counter-terrorism strategy. For this reason, it is likely to—at a minimum—take some time to implement. For example, after the outgoing Trump administration designated the Yemeni group Ansarallah (also known as the Houthis) as an FTO on Jan. 10, 2021—a move that many, including policy advisors in the incoming Biden administration, objected to on the grounds that it threatened to aggravate the already dire humanitarian conditions in Yemen—the Biden administration was not able to rescind that designation until Feb. 12, 2021, more than two months later.
The Rest of the Syria Sanctions Thicket
Resolving HTS’s FTO status and adapting licenses to permit a broader range of humanitarian and other essential activities in territories under its control could clear one set of major barriers to engagement with post-Assad Syria. But the question of what to do about HTS’s terrorist status is just the tip of the iceberg when it comes to Syria sanctions.
Since 2004, the United States has blanketed Syria with sanctions addressing such diverse issues as interference in Lebanon, the use of chemical weapons, human rights violations, and narcotrafficking involving Captagon amphetamines. Most of these sanctions are the products of executive orders installed under IEEPA or other broad delegations of authority. But others were created by Congress through statute, meaning they may require legislative action to amend or rescind. While a comprehensive review of these diverse sanctions is beyond the scope of this piece, examining them at a high level gives a sense of the sorts of sanctions questions the United States and the broader international community will need to address in the months to come.
For greater public accessibility and in an effort to catalogue the many different sanctions authorities that apply in relation to Syria, the U.S. Treasury Department maintains a dedicated “Syria Sanctions” program page on its website. There it identifies eight relevant executive orders imposing Syria-specific sanctions:
- Executive Order 13338, which implements the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003;
- Executive Order 13399, which targets actors involved with the 2004 assassination of Lebanese Prime Minister Rafiq Hariri;
- Executive Order 13460, which targets certain senior Syrian government officials;
- Executive Order 13572, which targets human rights abusers;
- Executive Order 13573, which targets former President Bashar al-Assad and other senior Syrian officials;
- Executive Order 13582, which prohibits new investments in Syria and transactions involving Syrian petroleum;
- Executive Order 13606, which targets human rights abusers in Syria and Iran who enabled digital surveillance; and
- Executive Order 13894, which sanctions certain Turkish officials for malign activities in Syria.
The Treasury Department also identifies two Syria-related sanctions statutes: the Iran Threat Reduction and Syria Human Rights Act of 2012 and the Caesar Syria Civilian Protection Act of 2019 target the Syrian government as well as its oil and gas industry in relation to human rights abuses while also imposing “secondary sanctions” against third parties who support the Syrian government. Statutory conditions on the rescission of these sanctions can make amending or removing sanctions particularly difficult absent legislative action. For example, the Caesar Act makes suspension of any of its sanctions—including secondary sanctions, which may prove particularly problematic—contingent on several conditions that are largely inapplicable or nonsensical now that the Assad regime is no longer in place. Notably, the Caesar Act itself is currently under consideration for reauthorization (having already passed the House), as its provisions will expire on December 20, 2024.
The fact that many of these sanctions apply to the government of Syria is likely to create complications as an interim administration begins to take shape and replace the Assad regime. Even where existing sanctions may not reach successor regimes writ large, they may apply to specific institutions that any interim or successor regime is likely to keep in place. For example, the U.S. Treasury Department currently sanctions the Central Bank of Syria under multiple authorities, which could have profound implications for the Syrian economy and its financial connectivity to the rest of the world if left unaddressed.
Many of these sanctions are subject to various licenses to permit humanitarian assistance and other essential forms of engagement with Syria. These exceptions are likely to prove particularly important as the international community seeks to reengage with post-Assad Syria, and may need to be expanded or clarified. For example, licenses on the various Syria-specific sanctions that the United States permit, inter alia, and activities across a dozen economic sectors in areas of Northeast and Northwest Syria previously not controlled by the Assad regime, including those areas that HTS controlled prior to the recent offensive. (Notably, however, these existing licenses do not provide an exception to limitations imposed by the FTO or SDGT regimes.) At a minimum, these licenses may need to be expanded to reflect the changed situation on the ground. That said, these sorts of sub-jurisdictional exceptions can also create practical compliance challenges. Jurisdictional uniformity can provide greater clarity on compliance expectations for humanitarian organizations and financial institutions in particular.
Other non-Syria-specific sanctions regimes beyond the FTO and SDGT regimes also have a substantial bearing on Syria. Notably, over the past decade Syria has generated significant revenue from its production of Captagon, an illicit methamphetamine that has proven to have an almost insatiable regional demand. The United States has repeatedly deployed its counter-terrorism and human rights sanctions authorities (most recently on October 16, 2024) to target this “billion-dollar illicit enterprise operated by senior members of the Syrian regime.” Who will control this lucrative drug trade moving forward is uncertain, but the answer could ultimately pose serious economic and security issues for policymakers.
State Sponsor of Terrorism Designation and Export Controls
Further complicating matters, the United States has designated Syria as a State Sponsor of Terrorism (SST) since December 29, 1979, a status it shares with just Cuba, Iran, and North Korea. This U.S. State Department designation triggers a variety of restrictive measures across various departments, agencies, and the private sector, including “restrictions on U.S. foreign assistance; a ban on defense exports and sales; certain controls over exports of dual use items; and miscellaneous financial and other restrictions.” The SST designation also keeps Syria exposed to civil suits under the terrorism-related exceptions to the Foreign Sovereign Immunities Act (FSIA). In addition to the statutory realities, the SST designation casts a long shadow over Syria from a reputational and compliance risk perspective for humanitarian actors, financial institutions, and any potential new market participants seeking to support post-Assad Syria.
Lastly, Syria is also subject to the most restrictive U.S. export control requirements of any foreign country, also alongside Cuba, Iran, and North Korea. Current export controls, administered by the U.S. Commerce Department’s Bureau of Industry and Security, effectively limit exports to food and basic medicine to Syria, thereby posing a further constraint on economic assistance to Syria in the current environment. While a licensing regime technically exists, the Commerce Department clearly states that “there is a general policy of denial for exports and reexports to Syria….” More permissive licensing and guidance will likely be required in the near term, similar to the recommendations outlined by Rachel Alpert and Alyssa Bernstein after the horrific 2023 earthquake in Syria and Turkey.
Nor has the United States acted entirely alone in erecting these sanctions. There is also an international patchwork of sanctions, including by the United Kingdom and European Union, that will require coordination for any potential relief. For instance, the European Union’s restrictive measures in Syria apply to the Al-Assad regime and will be in force until June 1, 2025 unless modified. The United Kingdom’s sanctions regime includes trade restrictions on sectors that may be helpful for reconstruction, such as electricity production. Different countries will be able to adapt these restrictions at different rates and with different levels of ease. But absent a coordinated approach, efforts to right-size sanctions restrictions on Syria are likely to end up with a complicated patchwork that risks continuing to deter outside actors from engaging with Syria in ways policymakers now want to facilitate.
Limited Space for Policy Recommendations
The rapidly changing political and military dynamics in Syria are likely to leave policymakers wrestling with a variety of sanctions barriers in the weeks and months to come. Some may be relatively easy to address through administrative actions, like revised licensing regimes. Other barriers—like the U.S. designations of HTS as an FTO and Syria as an SST—are likely to take longer to resolve, due to the political dynamics and competing policy priorities around counter-terrorism policies. As U.S. policymakers wrestle with these challenges, there are a few strategies they should consider pursuing—many of which apply equally to their foreign and international counterparts as they address their own Syria-related sanctions issues.
First, the United States must adapt existing sanctions and export control regimes to the new reality on the ground in Syria. These economic statecraft measures can only be effective if they are tailored to the present circumstances; many of the economic measures currently in place were designed for the Assad regime and may unnecessarily impede U.S. interests in the present context. The U.S. Commerce Department should review existing export control restrictions and revise them to, at a minimum, allow for more humanitarian goods to enter Syria. Similarly, the U.S. Treasury Department should consider issuing a broad general license permitting HTS and other sanctioned entities involved in the new post-Assad regime to perform various governance-related functions, similar in scope to General License 20 for Afghanistan. But the Treasury Department should endeavor to move more quickly than it did in the Afghanistan context, as that license took six months to issue after a series of more incremental general licenses ultimately proved insufficient. Unlike in Afghanistan, however, the space for useful sanctions licensing is likely to be more constrained because of the HTS FTO designation and Syria’s status as an SST. Both of these authorities may warrant reconsideration, particularly if the interim Syrian authorities are able to meet critical benchmarks in relation to governance and security (while also requiring interagency and congressional consensus)
Second—whatever adaptations they implement—policymakers should coordinate on joint public guidance that reflects the administration’s positions across interagency authorities involving sanctions, export controls, and related measures so as to provide clear and unified guidance to the third parties whose conduct is likely to be shaped by sanctions considerations. This could take the form of a joint multi-agency communique and fact sheet, as was done in relation to Afghanistan, alongside an extensive and evolving frequently asked questions page positioned to address more detailed questions as they arise. Where possible, the United States should coordinate these changes with European, Middle Eastern, and other partners to harmonize expectations, consistent with the U.S. Treasury Department’s 2021 Sanctions Review. This guidance should be paired with targeted public-private meetings to communicate regulatory expectations to financial institutions in support of humanitarian organizations (among other parties) currently operating in Syria or seeking to reengage in the jurisdiction.
Third, policymakers should invest in Syrian financial infrastructure and personnel. Learning from unsuccessful efforts in Afghanistan, policymakers should negotiate with the new Syrian regime for technocrats (potentially from the diaspora) unaffiliated with U.N.- or U.S.-sanctioned organizations to fill key governmental financial functions, including the Ministry of Finance, Central Bank of Syria, and a reconstituted financial intelligence unit. This will also require that the United States and its partners fund technical assistance through organizations like the World Bank to support anti-money laundering and counter terrorist financing compliance to build capacity in both the Syrian government and the private sector. A limited window exists to prevent further decay of the Syrian financial system and an economy fueled by the captagon methamphetamine trade.
Fourth, Congress and the incoming Trump administration should allocate additional resources for U.S. humanitarian award recipients, specifically to cover additional compliance costs relating to sanctions, export controls, and anti-money laundering/countering the financing of terrorism. In addition to ensuring that these organizations can meet the challenges of operating in Syria’s rapidly changing sanctions context, this will help promote the use of the formal financial system and avoid reliance on the informal, unregulated hawala money transfer system.
Finally, the incoming Trump administration should create a Syria economic response czar to coordinate these economic response measures, counter-captagon efforts, and humanitarian assistance programs. The complexity of the legal and policy issues presented by the sanctions thicket surrounding Syria—and the disparate authorities responsible for various parts of it—will require a focused, unified strategy with buy-in from the highest levels of the executive branch. Having a well-qualified senior coordinator will be invaluable in developing and executing this strategy.
The facts on the ground in Syria are changing fast. The sanctions that the United States and others in the international community have put on it must adapt accordingly. Striking the right balance is a difficult task. But falling short risks wasting one of the few bright moments that have emerged from more than a decade of civil war—and threatens to deprive Syrians of the brighter future they undoubtedly deserve.
– Scott R. Anderson, Alex Zerden, Published courtesy of Lawfare,
