As the war in Ukraine approaches the end of its fifth month and Russian attacks on civilian sites are reported on a near-daily basis, pressure is mounting on the Biden administration to officially designate Russia as a state sponsor of terrorism.
This week, according to reporting by Politico, House Speaker Nancy Pelosi told Secretary of State Antony Blinken that if he does not exercise the power delegated to him by Congress to make the designation, lawmakers themselves will do so.
Russia is already under crippling sanctions, imposed by the U.S. and a host of other countries, but official designation as a state sponsor of terrorism would up the ante in some significant ways. Where the international components of current sanctions have been carefully coordinated, the state sponsor of terrorism designation could trigger a stricter regime of penalties that could apply to third-country parties doing business with Russian individuals and companies.
In addition, the designation would waive Russia’s sovereign immunity in the U.S., opening the door for Americans harmed by the war in Ukraine to file civil lawsuits against the Russian government in U.S. courts.
Pelosi is the most senior lawmaker to advocate for the administration to take action, but she is not the first. Earlier this month, Senators Lindsey Graham, a Republican, and Richard Blumenthal, a Democrat, traveled to Kyiv to highlight legislation they introduced in May that would make the designation official.
A bill with the same aim was introduced in the House by Representatives Joe Wilson, a Republican, and Ted Lieu, a Democrat.
However, the Biden administration has appeared reluctant to take that step. In the past, a State Department spokesperson has said that the existing regimen of sanctions is sufficient to achieve the administration’s purposes.
Also, the state sponsor of terrorism designation would trigger “secondary” sanctions that the U.S. would have to apply to individuals and countries outside the U.S. who do business with Russia. Such a designation could complicate efforts to hold together a broad coalition of countries that are putting pressure on Russia to halt its aggression in Ukraine.
A potential new precedent
John Herbst, who served as U.S. ambassador to Ukraine from 2003-06, told VOA that, in his mind, there is little doubt that Russia has met the requirements to be designated a sponsor of terrorism.
“I believe that violence directed at civilians for political aims is one of the definitions of terrorism,” said Herbst, now the senior director of the Atlantic Council’s Eurasia Center. “If that's right, then clearly the Russian government is pursuing a policy of terrorism.”
However, he pointed out that in the past, nations subject to the designation have been no more than regional powers at most.
The U.S. currently considers four countries to be state sponsors of terrorism: Cuba, Iran, North Korea and Syria. In the past, the list has included Iraq, Libya, South Yemen and Sudan, but those countries have since been removed from the list.
Adding Russia to the list would be a significant departure from past practice and would set a new precedent.
A ‘blunt instrument’
Herbst, who has been a vocal critic of what he calls the Biden administration’s “slow and timid policy of supplying Ukraine,” said that he would support the state sponsor of terrorism designation for Russia but with some reservations.
“I support it, but it's not my highest priority,” he said. “If the administration was completely sound on weapons and sanctions, we wouldn't need it at all. Because they're not, I can see the utility of the designation. But generally speaking, I'm not fond of blunt instruments myself. I'd rather have the flexibility.”
Ingrid Brunk Wuerth, the Helen Strong Curry Chair in International Law at Vanderbilt Law School, agreed that the sanctions that come with a state sponsor of terrorism designation may be more broad than is necessary to further punish the Kremlin, considering that “Russia is under an enormous amount of pressure from U.S. sanctions as it is.”
In addition, though, Wuerth said that she is particularly concerned about the effects of opening up Russia to civil lawsuits filed by Americans.
Loss of ‘bargaining chip’
In theory, U.S. claimants would be entitled to sue to recover damages against Russia — damages that could be paid out from Russian assets currently frozen in U.S. financial institutions.
In the past, she said, frozen assets have been used as a bargaining chip in negotiations with hostile foreign governments. For example, she pointed to the release of frozen Iranian assets as an element of the Algiers Accords of 1981, which ended a long-running U.S. hostage crisis in Iran.
“If we give the money that we have to American claimants, it's not available as a bargaining chip against Russia,” Wuerth said. In addition, she said, because the law limits those eligible to file lawsuits to American citizens and employees of the U.S. government, it would mean that damages recovered by Americans would reduce the pool of funds available to compensate the Ukrainian government and its citizens.
Wuerth noted that the U.S. is not the only country holding frozen Russian assets, and that if others followed the United States’ lead and allowed their citizens to sue for damages, that would further erode the pool of money that might be used to directly aid Ukraine.
The discussion about further actions to punish Russia’s aggression against Ukraine took place during the same week that Ukraine's first lady, Olena Zelenska, visited Washington and delivered an address to a bipartisan group of U.S. Congress members on Wednesday.
She said that Russia’s “unprovoked invasive terrorist war” is “destroying our people” and recounted the stories of some of the untold number of civilians, many of them children, who have died in the nearly five months since the war began.
“I am asking for weapons — weapons that will not be used to wage a war on somebody else’s land but to protect one’s home and the right to make up a life in that home,” Zelenska told lawmakers. “I am asking for air defense systems in order for rockets not to kill children in their strollers … and kill entire families.”
In her weekly press conference on Thursday, House Speaker Pelosi praised Zelenska’s speech, and made a further case that Russia’s actions in Ukraine have gone beyond waging war, crossing the boundary into war crimes.
Pelosi decried “the tragedy of what is happening to children and women and the rest in the course of this war, how the Russians have used rape as a weapon of war, when it is indeed a war crime.”
She alleged that rape, in particular, is happening not because of the decisions of individual soldiers, but on the orders of Russian commanders, as a means of “demoralizing” the Ukrainian people.
“Congress will continue to stand with Ukraine in their fight to defend democracy, not only for their own people, but for the world,” Pelosi said.