(Editor’s Note: This article also appears in Transnational Litigation Blog.)
Appearing before the United Nations General Assembly late last week, Ukrainian President Volodymyr Zelenskyy renewed his call for the designation of Russia as a state sponsor of terrorism. Proponents of the designation argue that it would ratchet up sanctions -– making it more difficult for Russia to continue the war against Ukraine –- and that the designation would have a significant symbolic effect. I have argued against the designation, including in an op-ed for the Washington Post, in part because it would likely reduce the amount of Russian state-owned assets (currently frozen) which would be available to rebuild Ukraine. Secretary of State Antony Blinken has the legal authority to make the designation, but he has been hesitant to do so, in part out of a concern about ongoing diplomatic relations with Russia. Earlier this month, President Joe Biden said that he opposed the designation, citing concerns about diplomacy and the possibility that sanctions could hinder humanitarian assistance into Ukraine and food shipments out of Ukraine.
That is not the end of the matter, however. Congress has the constitutional power to regulate foreign commerce -– including the power to impose sanctions and to change the rules of foreign state immunity governing Russian state-owned assets. All aspects of the state sponsor of terrorism designation are currently regulated by federal statutes, including section 1754(c)(1)(A)(i) of the Export Control Reform Act of 2018 (50 U.S.C. §4813(c)(1)(A)(i)), section 620A(a) of the Foreign Assistance Act of 1961 (22 USC §2371(a)), and section 40(d) of the Arms Export Control Act (22 U.S.C. §2780(d)).
Congress could, in other words, take matters into its own hands. Non-binding resolutions from May of this year in both the House and Senate called on Secretary Blinken to make the designation. The Senate resolution passed on July 27, 2022, but neither resolution convinced Secretary Blinken.
But now Congress has upped the ante. On July 28, 2022, Congressman Ted Lieu (D-CA) introduced a bipartisan bill, H. R. 8568, that would designate Russia as a state sponsor of terrorism. Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) introduced a similar bill, S. 4848, on September 14. If enacted, these bills would bypass Secretary Blinken and President Biden. This post analyzes both the resolutions and the bills, focusing on differences among them, and it explains how the bills could be improved.
Russian Support for International Terrorism
The resolutions and bills all cite (in Section 2 of each) a long history of bad actions by Russia. These congressional findings are legally significant in two ways, as I explain below, and there are some important similarities and differences, especially between the earlier resolutions and later bills. All of them cite Russian targeting of civilians during the Second Chechen War; Russian support of separatists engaging in violence against civilians in the Donbas region of Ukraine since 2014; and material support by Russia for the government of Syria (one of four countries currently designated by the United States as a state sponsor of terrorism). They all highlight Russia’s spread of terror through private military networks such as the Wagner Group, which was identified by the Department of the Treasury as “a designated Russian Ministry of Defense proxy force” that has incited violence in Ukraine, Syria, Sudan, and Libya.
They are also different, however. Among other differences, the bills do not include some conduct by Russia that was included in the earlier resolutions –- especially findings of Russian war crimes and other direct misconduct by Russia during the conflicts in Syria and Ukraine.
As examples, both of the earlier resolutions include this paragraph, but the later bills do not:
Whereas, since the entry of the Russian Federation into the Syrian Civil War in 2015, the Russian Federation has targeted innocent civilians in Syria with attacks on civilian markets, medical facilities, and schools.
Similarly, one or both of the earlier resolutions include these paragraphs, but the later bills do not:
Whereas, on March 14, 2022, Chairperson-in-Office of the Organization for Security and Co-operation in Europe Zbigniew Rau stated that actions of the Government of the Russian Federation in Ukraine against innocent civilians and civilian infrastructure is “state terrorism”;
Whereas, on April 27, 2022, Secretary of State Antony Blinken stated before Congress that “there’s no doubt in my mind that the Russians are terrorizing the Ukrainian people”;
Whereas, at the direction of President Putin, the Russian Federation has and continues to commit war crimes by directing and authorizing the indiscriminate targeting of civilian centers within Chechnya, Georgia, Syria, and Ukraine, resulting in the deaths of countless innocent men, women, and children;
Whereas Armed Forces of the Russian Federation have committed numerous summary executions against innocent civilians and have attempted to cover their atrocities with mass graves across Ukraine.
The later bills include more allegations of misconduct by the Wagner Group, especially in Ukraine, including:
On May 24, 2022, Ukrainian prosecutors accused 2 Wagner Group mercenaries of committing war crimes against civilians near Kyiv.
On July 18, 2022, the United Kingdom’s Ministry of Defence confirmed that the Wagner Group plays a central role in recent fighting in Ukraine, including Russia’s capture of Popasna and Lysyschansk.
Although these last two allegations may have been excluded from the earlier resolutions because of the timing, as whole the more recent bills exclude allegations of war crimes and direct misconduct by Russia in Ukraine and Syria, but include more allegations that Russia supported bad actions by other parties.
These changes are significant for three reasons. First, the designation as a state sponsor of terrorism requires that the country has “repeatedly provided support for acts of international terrorism.” The legislation has no definition of “international terrorism,” but past designations have focused on support by the designated country directed to terrorist organizations that are not state actors. Iran, for example, provided support to Hezbollah and to Houthi rebels in Yemen. Focusing on Russia’s support for terrorist acts by private actors creates greater consistency between prior designations and this one, perhaps narrowing the basis upon which future designations could be made as a political matter, if not as a legal one.
Second, and relatedly, definitions of “terrorism” vary in U.S. law and international practice, but they are generally limited to conduct by non-governmental entities and to conduct that is not part of an armed conflict between one government and another. Russia’s conduct in Ukraine is, by contrast, that of a classic warring party that has committed the crime of aggression, along with many violations of international humanitarian law. The differences between terrorism and violations of the laws of war are not always clear, and they should not be overstated, but perhaps members of Congress wanted to limit the conduct that they described as “terrorism” with these legal distinctions in mind.
Finally, the state sponsor of terrorism designation lifts foreign sovereign immunity and allows litigation against the foreign state — but only for specific acts that take place after the designation or that the led to the designation. By limiting the factual basis of the designation, the legislation limits the scope of future suits against Russia in U.S. courts. In part because those suits can be brought only by a certain kind of plaintiff — usually U.S. citizens — and might deplete Russian state-owned assets that could be used to rebuild Ukraine, the more limited the basis for the designation the better, and the more limited the ensuing litigation the better. There is, however, an even better way of addressing this problem.
Agricultural and Humanitarian Exceptions
President Biden expressed concern about the designation’s impact on grain exports from Ukraine and on humanitarian assistance to Ukraine. Congressman Lieu’s bill provides that “nothing in this Act may be construed to provide for the imposition of sanctions against any person that engages in transactions to export agricultural products from Ukraine or to provide humanitarian assistance in Ukraine.” Senator Graham’s bill has no such provision.
Although the language exempting agricultural transactions and humanitarian assistance is a move in the right direction, it will not convince the administration to support the legislation or the designation. Entities engaging in such transactions may be unsure how that language will be interpreted and applied, and entities that are not actually engaged in such transactions but who do business with entities that are, may simply refuse to do business. Insurance companies, shipping companies, and others may deem it too risky to do business with or relating to Ukraine, even with the limiting language of the Lieu bill.
More generally, other countries designated as state sponsors of terrorism — Cuba, Iran, North Korea, and Syria — have far smaller economies than Russia. They are also far more economically isolated. It is difficult to predict the impact of the designation if it were imposed on a larger, more economically important country such as Russia.
The better approach, discussed further below, would be for Congress to decide what additional sanctions should be imposed on Russia — on the energy sector for example — and then pass legislation that puts those sanctions in place.
Senator Graham’s bill concludes with a section entitled “Waiver.” It allows the president to “remove the designation” thirty days after certifying to the House and the Senate’s house’s respective foreign affairs committees, majority leaders, and minority leaders that Russia is no longer supporting acts of international terrorism and that it is in the national security interests of the United States to remove such designation.
This language does not give the president much power even to lift the designation when (and if) the conflict in Ukraine ends. If Putin ends his support for the Wagner Group, Syria, and non-state actors in Ukraine, then the president might be able to make the required certification, but Russia is unlikely to do all these things. The language only underscores how deeply the proposed legislation undercuts the president’s ability to negotiate with Russia or to make changes to the designation based on national security interests.
A Better Approach
The better approach would be for Congress to impose additional targeted sanctions on Russia, but not through the one-size-fits-all state sponsor of terrorism designation.
If, however, Congress moves forward with these bills, they should at a minimum be amended to include a sunset provision triggered by the conclusion of hostilities in Ukraine. They should also include the exemptions for agriculture and humanitarian assistance in the bill proposed by Congressman Lieu, despite the weaknesses described above.
Finally, any legislation making an SST designation should disallow litigation against Russia under the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act. Otherwise, the designation would limit Russia’s entitlement to foreign sovereign immunity in courts in the United States, for both the adjudication of claims and the execution of judgments. Foreign states are generally immune from suit in courts in the United States, but state sponsors of terrorism are not immune for certain conduct such as torture and extrajudicial killings. Suits may only be brought by certain plaintiffs, in particular members of the U.S. armed forces, government employees and U.S. citizens. Although there may not be many potential plaintiffs harmed by Russia’s actions in Chechnya, Syria, and Ukraine, default judgments for large sums of money are in common in such cases. Judgment creditors could likely then recover against Russian state-owned assets that are currently frozen in the United States, depleting resources that might otherwise be available to rebuild Ukraine and to compensate other victims of Russian aggression. Private litigation is not a good way to resolve entitlement to Russian state-owned assets, especially because Congress and other commentators have paid little or no attention to the implications of the designation for private claims against Russia and its assets.