Since the moment of the full-scale russian invasion against Ukraine on February, 24, there are continuous calls to the US State Department to designate the russian Federation as a “state sponsor of terrorism” (hereinafter “SST”). The calls were supported by the Ukrainian government, starting from the address of President Volodymyr Zelensky in April 2022. Later, the call was supported by the resolution of the Ukrainian Parliament.
On July 27, the U.S. Senate approved a bipartisan resolution to call on the Secretary of State to designate russia as an SST. On July 28, Congressman Ted W. Lieu introduced russia as a State Sponsor of Terrorism Act, supported by Reps. Joe Wilson, Jared Golden, Adam Kinzinger, and Tom Malinowski. The bill deems russia a state sponsor of terrorism for invading and attacking Ukraine.
Under US legislation, the SST is a statutory designation that is applied to states “repeatedly provided support for acts of international terrorism.” Currently, the US has designated Cuba, North Korea, Iran, and Syria as SST. The power to make an SST designation belongs to the Secretary of State, the designation results in the application of a set of trade-related sanctions and a ban on the provision of foreign aid.
The State Department defines “terrorism” as “activities that involve a violent act or an act dangerous to human life, property, or infrastructure that is intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking.”
russia’s illegal invasion of Ukraine, overall disregard to international law, intentional attacks on civilians and civilian infrastructure conducted by russian military or government-controlled actors, ferocity and inhuman scale of war crimes as well as amount of damage has surpassed the threshold of “terrorism” since the first days of the full-scale invasion. There are well documented records of mass torture, rape, killings of civilians, targeting schools, hospitals and residential areas, extermination of prisoners of wars, and other horrendous crimes. In six months, at least 5.5 thousand civilians, including 379 children have been killed (the number documented by the UN). The actual number is estimated at more than 30,000 of killed civilians. Five million people became refugees, around 10-15 million of Ukrainians have been forced to leave their residences in fear of being trapped in an active combat zone or being targeted with shelling or missile attacks. This confirms the fact that Russia uses terror against civilian population as a usual means of coercion in order to gain its political objectives.
russia’s designation as SST will be an adequate and proper reaction to russia’s actions in Ukraine. It will generalize the already existent sanction response to russian illegal actions in Ukraine and will prevent russian-sponsored acts of terrorism in other countries. It will also encourage the people of Ukraine as it will become the first move in recognition of the illegality and inadmissibility of Russian actions.
Below, we are refuting several arguments that are persistently used to oppose the designation of russia as SST.
“The designation of russia as SST is not a sufficient response given to the scale of atrocities and violations in Ukraine, there should be another statutory status for russia”
The SST is a statutory designation, already regulated by the comprehensive corpus of US legislation. Developing a new designation will take additional time and resources, whereas SST designation can be done in mere days. The development of a new designation will not serve any additional purposes, but spare russia of responsibility for the conducted terrorist acts. The actions of russian government already constitute the years-long campaign of international terrorism and sponsoring of international terrorist groups. Not designating russia as an SST will betray the US efforts of fighting international terrorism and encourage malicious acts of other states. Although certain actions of the russian government against Ukraine should be prosecuted as acts of aggression or war crimes, an SST designation does not hinder the work of the respective international tribunals or other means of international responsibility.
“There are enough sanctions against Russia, SST status does not provide for any additional sanctions that are not currently imposed.”
Firstly, sanctions are moving targets, and in order to gain proper effect they have to be constantly readjusted to be effective. In six months, the russian government and its economy proved to quickly adapt to the sanctions imposed by the US and its allies as well as attempted to circumvent the sanctions through other countries. In order to keep the sanction pressure on russia, it is time to move to blanket sanctions on various sectors of the russian economy.
“The SST designation will stop diplomatic cooperation between the US and Russia”
The SST designation does not mean that the US automatically breaks off diplomatic relations. So far it has been a threat from the russian Ministry of Foreign Affairs. At the same time, the US and russia have a multifaceted relationship, and it is in russia’s best interests to keep the diplomatic relations going. So far, the russian government has not substantiated its threats in any way. If they unilaterally break off the diplomatic relation with the US, they will show weakness and that this status actually is painful to them. Recent months proved that when russia labels something as “an escalatory”, in fact, does not trigger any response. Given the real circumstances on the frontline, the russian government is more interested in saving the lines of communication with the US. At the same time, for instance, the designation of Iran as an SST did not hinder the nuclear program negotiations, so further cooperation with russia on mutual-beneficial security-related issues is still possible.
“Secondary sanctions will hurt European countries and other allies who at the moment cannot substitute russian oil and gas as well as other commodities”
There is an established mechanism of granting waivers and licenses that exempt certain transactions or companies from secondary sanctions. Therefore, there are no obstacles to grant those waivers to partner countries to guarantee supply of necessary commodities.
“SST designation will endanger “the grain deal” between Ukraine and russia”
“The grain deal” to ship Ukrainian grain and other agricultural products from Ukrainian Black Sea ports through the Turkish logistic center has been negotiated between the UN, Ukraine, Turkey, and russia. The US is neither a part of the deal nor its guarantor. In fact, the real guarantee of the deal and reverse of the blockade of Ukrainian ports is provision of Ukraine with necessary anti-ship missiles and other defensive capabilities. Since Ukraine sunk the “Moskva” cruiser and cleared the Snake Island of russian military units, russia moved its Black Sea fleet away from the Ukrainian coast. There are no actual obligations or mechanisms that deter russia from violating the agreement. In fact, russia attacked Odesa port infrastructure the very next day after the signing of the agreement. Thus, the SST designation will not have any immediate impact on a grain deal. Any possible russian actions with regard to further siege of Ukrainian ports shall be deemed as another episode of its blackmailing campaign against global food security.
“SST designation will interfere with Ukraine’s rights to claim russian funds seized in the US”
In response to russian aggression against Ukraine, the US seized a significant amount of russian central bank assets, which at the moment cannot be forfeited due to state immunity. In order for Ukraine to claim those funds, there should be changes to the US legislation that will allow the release of the funds. However, the possible legal grounds of such release are unclear yet.
At the same time, the SST designation will enable certain groups of U.S. nationals to sue the russian government for acts of terrorism to obtain compensation from frozen assets under the Terrorism Risk Insurance Act (TRIA). It is impossible to assess the amount of lawsuits and funds that could be claimed under the TRIA. At the same time, the TRIA or similar provisions of lifting state immunity of SST designated state is the only viable way to promptly and effectively lift the state immunity on seized russian funds and make it accessible to Ukraine without extensive change of the legislation and risking existing international agreements. In order to make the funds available to Ukraine and its citizens, the amendments to the TRIA should be made so the confiscation of the russian funds prioritizes the Ukrainian government and citizens once russia is designated as SST.
“Once russia is designated as SST, there is no way back, and this will obstruct any future peaceful negotiations”
The US legislation provides for an established procedure for removing an SST designation. There should be proof that a designated state has a fundamental change in the leadership and policies of the government; that government is not supporting acts of international terrorism; and that government has provided assurances that it will not support acts of international terrorism in the future. Thus, there is a legal pass for Russia to remove the designation in future once it is deemed an SST.
Author: Tetiana Shevchuk, legal counsel in the Anti-Corruption Action Center, advocacy manager at the International Center for Ukrainian Victory ([email protected])