Above Photo: Hawala Market in Afghanistan. Institute for Money, Technology and Financial Inclusion.
The Money Belongs To The People Of Afghanistan.
It Should Be Used To Stabilize Economy And Relieve Suffering, Court Filing Says.
New York – Afghan civil society groups are opposing the effort by a group of 9/11 families and other U.S. victims to seize billions of dollars from the Central Bank of Afghanistan to satisfy judgments against the Taliban. In an amicus brief filed yesterday, they argue that the $3.5 billion in blocked assets belongs to the people of Afghanistan and should be used to stabilize the economy and alleviate the humanitarian catastrophe there.
At issue are $7.1 billion that the previous government of Afghanistan placed in the New York Federal Reserve. After the Taliban’s takeover of Afghanistan in August 2021, the Biden Administration froze the funds. In February, President Biden signed an executive order effectively allocating half for humanitarian relief in Afghanistan and leaving half subject to litigation brought by some of the 9/11 families.
A group of 9/11 families that won a 2011 default judgment against those responsible for the attacks, the Havlish plaintiffs, have filed a motion in the Southern District of New York arguing that more than $2 billion of the Afghan assets should be turned over to them. U.S. victims of a 2016 attack on a compound in Afghanistan have filed a separate motion seeking $138.4 million of the funds.
The amici Afghan organizations – Global Advocates for Afghanistan, Afghan Network for Advocacy and Resources, the Afghan-American Community Organization, and Afghans for a Better Tomorrow – are urging the court to deny the turnover motions. While they support the plaintiffs’ effort to secure just compensation, to do so in this way would harm Afghans and not the Taliban, which would be using the people’s money to pay their debts.
“For far too long, the people of Afghanistan have suffered at the hands of the Taliban—a group that has never represented the State of Afghanistan or its people,” said Sadaf Doost, co-founder of Global Advocates for Afghanistan. “The freezing of these assets has led to catastrophic human rights and humanitarian consequences. Afghan parents are selling their organs in order to secure the next meal for their families. Subjecting the entire population of Afghanistan to further suffering by taking Afghan resources can and must be avoided.”
To allow plaintiffs to seize the money in question would be not only unfair to the people of Afghanistan but also unlawful, according to the brief filed by the Center for Constitutional Rights, on behalf of the Afghan organizations. The target of the lawsuits, they point out, is the Taliban, not the State of Afghanistan. While the plaintiffs’ argument tries to erase this distinction, U.S. courts have long differentiated a state from its government; here, moreover, the Taliban is at best a de facto authority.
Further, the lawyers say, because the State of Afghanistan – not the Taliban – owns the money, the longstanding legal principle of sovereign immunity protects the assets. Under both U.S. and international law, sovereign states – and property held in state central banks – enjoy immunity from court rulings in other countries, with few exceptions. U.S. law, for example, allows a carveout for state sponsors of terrorism, but the U.S. government has never designated Afghanistan as such.
To turn the funds over to the plaintiffs would also elevate the status of the Taliban, the brief says. It would implicitly recognize them as the owner of sovereign assets, granting them a status that not only contravenes U.S. foreign policy but harms the amici organizations and the millions of other Afghans who are suffering a humanitarian and human rights crisis under the Taliban. In fact, no country in the world recognizes the Taliban as the legitimate government of Afghanistan.
Notably, the United States has filed a Statement of Interest in the litigation that made arguments similar to those in the Afghan civil society brief – but stopped short of taking a position on whether the motions should be granted.
“The $3.5 billion held in Da Afghanistan Bank are sovereign funds of Afghanistan, which ultimately belong to the people of Afghanistan, and as such are protected from seizure under fundamental principles of sovereign immunity,” said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, which represents the amici. “The 9/11 families should be able to enforce their judgments — against the Taliban, with the Taliban’s funds. It would be both unlawful and profoundly unjust to turnover assets belonging to the Afghan people to satisfy judgments against a terrorist-designated group.”
The organizations opposing seizure of the funds have led advocacy, human rights, and humanitarian efforts in response to the Taliban takeover. As Afghans and Afghan-Americans, they have a direct and deep interest in the outcome of this case. They believe the money should be used to alleviate the humanitarian emergency in a country where U.S. and European sanctions are compounding suffering caused by decades of war and misrule.
In March 2022, the U.N. reported that “food security levels have plunged at an alarming rate, leaving half the population facing acute hunger, including nine million in a state of emergency food insecurity—the highest number in the world.” Humanitarian organizations have warned that by the second half of 2022, nearly the entire population – 97 percent – will be living “well below the poverty line.”
Other organizations – September 11th Families for Peaceful Tomorrows and Unfreeze Afghanistan – also filed amicus briefs yesterday. They oppose the turnover motions on grounds that the funds are sovereign assets that should be used for the benefit of the Afghan people.
For more information, visit the case page.