Justice Initiative Welcomes U.S. Appeals Court Decision Affirming Foreign Reserves Belong to the Afghan People, Not the Taliban

The Open Society Justice Initiative celebrates the decision of a U.S. federal appeals court confirming that the assets of the Afghanistan central bank are immune from seizure and remain the property of the state of Afghanistan and its people.

Judges on the U.S. Court of Appeals for the Second Circuit ruled that the $3.5 billion in assets that were frozen by the Biden Administration on the Taliban’s takeover of Afghanistan in August 2021 could not be used to pay compensation to the victims of al-Qaida terrorist attacks on 9/11 and on the U.S. embassies in Kenya and Tanzania.

The assets will remain preserved for the benefit of the Afghan people at the New York Federal Reserve, shielded both from confiscation by private plaintiffs and the Taliban. Afghanistan’s economy has been reeling since the Taliban’s takeover, when sanctions were imposed on the country. Against the backdrop of a deep humanitarian crisis, the seizure of assets would have delivered a devastating blow to Afghanistan’s banking sector and its currency.

“This is a victory for the Afghan people who have suffered so much for so long,” said Natasha Arnpriester, senior legal counsel at Justice Initiative. “These assets are crucial to the survival of the Afghan economy. They are the property of the Afghan people, not the Taliban or anyone else. American victims of terrorism deserve compensation, but that can’t come at the cost of ordinary Afghans, who have also suffered terrorism and now are under the Taliban’s vicious rule.”

The Justice Initiative filed amicus curiae briefs in the consolidated cases of Havlish et al. v. Taliban and Owens et al. v. Taliban, on behalf of Naseer A. Faiq, the only recognized Afghan diplomat in the United States and the chargé d’affaires (head) of the Permanent Mission of the Islamic Republic of Afghanistan to the United Nations in New York.

While the Taliban has opposed Faiq’s service, arguing that he does not represent the Taliban regime, Faiq maintains that he neither represents the former government of Afghanistan, nor the Taliban, only the interests of the Afghan people.

The briefs support compensation for the victims of the Taliban, including those who have obtained judgments against the Taliban in American courts. However, they hold that under current U.S. law, such compensation cannot come from the Afghan people, who are not legally responsible for the tragic events of September 11, 2001, or other acts of terrorism committed by the Taliban.

The briefs argue that under the Foreign Sovereign Immunities Act, the reserves of foreign central banks held in the United States are generally immune from seizure. The only exception to this is the Terrorism Risk Insurance Act, which does not apply because the central bank assets are the property of the Afghan people, not the Taliban, who are not the legitimate rulers of Afghanistan and did not lawfully control the central bank when the assets were blocked.