As Afghanistan recovers from an earthquake that killed more than 1,000 people, and amidst an already dire humanitarian situation, Canadian aid organisations say their hands are tied by a restrictive anti-terrorism law that has effectively banned their work since the August 2021 Taliban takeover.

Because the Taliban is listed as a terrorist organisation in Canada, Ottawa has told NGOs that any transaction resulting in money flowing to its de facto government in Kabul would leave them open to prosecution under legislation that prohibits the financing of terrorism.

Everything from buying gas to renting apartments in Afghanistan – let alone paying taxes on staff salaries – entails money going to the government, which has made it impossible for NGOs including World Vision, the Canadian Red Cross and CARE Canada to work in the country since last year.

Afghanistan’s collapsing healthcare system was put under further pressure by a June 22 earthquake that killed more than 1,000 people and injured thousands, including these people receiving treatment at a hospital ward in the eastern city of Sharana.

Those organisations have been asking the Canadian government for almost a year to add an exemption to the law, or to at least provide assurances that their work will not be prosecuted. That’s something many other countries, including the United States and the UK, did within weeks or months of the Taliban taking power.

But almost a year after the Taliban takeover, Canada still hasn’t managed to find a solution to allow NGOs to continue to work.

“It’s really bizarre,” said Martin Fischer, director of policy at World Vision Canada. “They have the tools at their disposal to do something, yet there’s a political unwillingness to actually take those steps.”

The situation is unusual – while Canadian sanctions on Syria or Russia, for example, target individuals and ban specific transactions, Afghanistan’s entire government is sanctioned. That does present a unique challenge, but it doesn’t explain why Canada still hasn’t worked this out, according to Fischer.

“While the government is saying it’s doing everything that it can, it really isn’t,” Fischer said. “It’s unable to do so because of bureaucratic red tape and a lack of political will. And the effect of that is that people are suffering because Canadian organisations aren’t able to contribute.”

The Canadian government has sent almost $3 billion in international assistance to Afghanistan since 2001 – including $459 million in funding for security/counter-terrorism programmes. Afghanistan was the second-largest recipient of Canadian assistance in the government’s last fiscal year, receiving $153 million between April 2020 and March 2021.

Canada is still sending aid to Afghanistan through international organisations, including UNICEF and the World Food Programme, but the law has forced almost all Canadian NGOs to shut down their work at a time when the country desperately needs international aid.

World Vision Canada had two containers of ready-to-use therapeutic food set to go to Afghanistan in the autumn of 2021 – enough for about 1,800 children – but had to cancel the shipment because of the “overly and unnecessarily restrictive” restrictions, Fischer said.

In late 2021, as a major hunger crisis loomed, World Vision was working on a proposal for a multi-country food aid project that included Afghanistan – but Fischer said they had to cut the country out of the project after Global Affairs Canada, the government department responsible for aid, said it couldn’t fund work there.

The organisation also can’t accept donations for Afghanistan, so it hasn’t been able to launch a funding appeal to support work in the country. “We can’t do anything,” Fischer said.

The Mennonite Central Committee, a Winnipeg-based aid organisation, said in May that because it can no longer fund projects in Afghanistan, the director of one of its local partners, a women’s education NGO, has taken out loans to pay staff salaries out of pocket.

The restrictions are also hindering efforts to evacuate Afghans who worked for the Canadian mission, The Globe and Mail reported. Like World Vision, the Canadian Red Cross and CARE Canada have paused their work in Afghanistan.

Of CARE International’s 14 chapters, Canada is the only one that can’t work in the country. Canadian Red Cross spokesperson Jamie Hofing confirmed the organisation’s work also remains on hold.

“The fear of the legislation and how it will be interpreted is having a chilling effect,” Canadian Red Cross general counsel Amy Avis told a House of Commons committee in February.

The Canadian government is still sending humanitarian assistance through the UN and the International Committee of the Red Cross, and has allocated $156 million to Afghanistan and neighbouring countries since August 2021, GAC spokesperson Geneviève Tremblay said in an email.

The government has said funding is contingent on those organisations providing assurances that their work complies with the law, which restricts how they can use Canadian money.

UNICEF can use the money to pay staff or buy equipment outside Afghanistan, but can’t pay for anything inside the country or use it to fund local NGOs. “That’s a problem,” Manuel Fontaine, director of UNICEF’s Office of Emergency Programmes, told a House of Commons committee in May.

The Canadian government is “focused on finding a solution”, Chantalle Aubertin, press secretary for Justice Minister David Lametti, wrote in an email.

Aubertin said the government needs more time to consider a recent House of Commons committee report that recommended Canada “take any legislative steps necessary” to ensure humanitarian work isn’t restricted.

“This is a complex issue, one that cuts across multiple departments,” Aubertin said, noting that the report was tabled in June, two weeks before the House of Commons summer break.

“It will be necessary to take more than the two weeks of parliamentary sitting time that remained in June to give due consideration to the special committee report recommendations,” she said.

Aid has been slow to reach the remote areas worst hit by last month’s earthquake. Here, in Ochlakai village, a survivor assesses the damage to his home. Although this legal challenge isn’t unique to Canada, after almost a year of Taliban rule in Afghanistan, Canada remains one of very few major donor countries that hasn’t been able to solve it.

After the Taliban took control of Afghanistan, it took the US Treasury Department just over a week to assure humanitarian organisations that they could continue their work, despite US sanctions that prohibit dealing with the Taliban.

A month later, in September 2021, the US Treasury authorised specific transactions between humanitarian organisations and the Taliban, and later expanded the exemption to include all transactions related to humanitarian work.

The UN Security Council added a broad humanitarian exemption in December 2021 to sanctions targeting the Taliban, allowing aid organisations to make financial transactions that would otherwise be banned.

The EU made similar amendments to its Afghanistan sanctions in February 2022, as did the UK and Australia in January. Other countries, including Ethiopia, Chad and Switzerland, already had exemptions for humanitarian work written into their anti-terrorism laws years before the Taliban took over Afghanistan.

Although the law has created an immediate funding problem for domestic NGOs, it also poses a broader threat to humanitarian work, explained Jason Nickerson, MSF’s humanitarian representative to Canada.

Without a humanitarian exemption, he said, the law creates the possibility that banks could drop NGOs, or freeze their accounts, or – in extreme cases – that employees working in places like Afghanistan could be exposed to criminal charges when they return to Canada.

Nickerson said there’s no reason to believe Canada would actually prosecute humanitarians, but the ambiguity is troubling, and that itself could erode the neutrality and protection that international law guarantees to healthcare providers like MSF.

“The problem is fundamentally that there’s a lack of clarity in the law,” Nickerson said. “We need to not just fix one narrow part of the problem. We need a clear exemption that brings Canadian laws in line with global norms and with existing international humanitarian laws.”

For Fischer, humanitarian organisations have an obligation to act, and the government needs to remove the barriers: “This is what we’ve said to them – you have a moral imperative to explore every possible option to make this work.”

• The New Humanitarian report