A Dangerous Idea to Punish Putin

As President Vladimir Putin’s bloody invasion of Ukraine continues, pressure is mounting to designate Russia as a state sponsor of terrorism. | Dmitry Serebryakov/AP Photo
As President Vladimir Putin’s bloody invasion of Ukraine continues, pressure is mounting to designate Russia as a state sponsor of terrorism. | Dmitry Serebryakov/AP Photo

As President Vladimir Putin’s bloody invasion of Ukraine continues, pressure is mounting to designate Russia as a state sponsor of terrorism — a move that would apply new sanctions to Moscow and put it on a short list of countries the U.S. treats as pariahs. But while Russia’s atrocious and aggressive conduct in Ukraine deserves both condemnation and a strong response, a state sponsor designation is the wrong tool at the wrong moment.

President Joe Biden has resisted taking this step. Yet Congress, with direction from senior leadership, including  Speaker Nancy Pelosi, is pushing ahead, with bills in  both the House and the  Senate that would designate Russia legislatively. This would hobble future peace efforts and have other counterproductive effects, while doing nothing to strengthen Kyiv’s hand in pushing back on Russian aggression.

What would designation do? It triggers export controls and puts the brakes on foreign assistance and access to debt relief. It may set in motion sanctions that can wind up penalizing entities and individuals that trade with the sanctioned state. It also limits a designated state’s entitlement to sovereign immunity, making it more vulnerable to lawsuits in U.S. courts. But perhaps most consequential is the stigma it creates: Because the U.S. uses state sponsorship to label a country as an outcast, both U.S. and non-U.S. firms tend to steer clear of designees, even when they are not technically required to do so.

A state sponsor of terrorism designation may seem fitting punishment for Russia’s attack on Ukraine, but for several reasons, it would likely backfire.

First, state sponsor designation is too blunt an instrument to use with Russia, a country that the U.S. still must work with on the global stage. Lawmakers should look to the countries already on the state sponsorship list — Cuba, North Korea, Iran and Syria: These are all countries with which the U.S. has no formal or commercial ties. For all the friction the U.S. has with Russia, it is not yet at that point, nor should it wish to be. While increasingly strained, diplomatic relations between the U.S. and Russia do persist, and they remain essential for global crisis management. At the U.N. Security Council and in other multilateral forums, the U.S. and Russia have little choice but to work together on sustaining the U.N.’s dozens of peace missions, cross-border aid to Syria, peace negotiations in conflicts like Libya and Yemen and countless other projects. Even discreet bilateral diplomacy, such as the current negotiations over the imprisonment of WNBA player Brittney Griner and Paul Whelan (whose sister has publicly opposed the measure) could be imperiled by a designation.

Second, lawmakers should consider the implications for Russia’s war in Ukraine. While negotiations seem difficult to imagine after Russia’s recent escalatory actions, preserving space for the parties to get back to the table and negotiate an agreement Kyiv can live with must remain a top goal, especially given the still-uncertain odds that either side will win a hands down military victory. Designation will make that more difficult. Russia will surely want this sanction lifted before agreeing to any future peace deal, but a state sponsor of terrorism designation is notoriously sticky. To lift it, a future administration would have to win the support of a Congress influenced by mounting evidence of Russian atrocities and corresponding public sentiment. As a legal matter, it would also have to show that Russia’s behavior, or its leader, have changed — both highly unlikely prospects.

There’s also a litigation angle, as the designation would limit Russia’s sovereign immunity in U.S. courts and open it up to lawsuits brought by U.S. plaintiffs. Cases against other state sponsors of terrorism have taken years, raised the prospect of rewards in the billions of dollars and seriously complicated efforts to lift the designation. In the case of Russia, such litigation could create further hurdles for any future peace negotiations. It could also reduce the total sum available for Ukrainian victims as compensation for war crimes if successful lawsuits follow.

Third, the bills in Congress would unhelpfully muddy the meaning of the term “terrorism”. The draft legislation appears to equate alleged war crimes by Russian troops and activities carried out by the Russian state with “terrorism” for the purposes of the designation statute. Traditionally, the U.S. has sought to distinguish terrorism, generally defined as political violence undertaken by non-state actors, from hostilities conducted by state security services — even if they violate the laws of war. Blurring the two concepts risks establishing a precedent that unhelpfully stretches an already over-stretched term, in the process exposing the U.S. and its partners to similar kinds of designations by adversaries in the future.

Fourth, for the millions of civilians whose lives have been upended by the war, both in Ukraine and those affected by the economic fallout around the world, this move could make life even harder. As noted, past terrorism designations have made dealings with the listed state highly toxic. Deals that mitigate the humanitarian costs of the war, like the U.N.-backed grain deal, would be harder to reach if businesses and aid organizations fear that facilitating delivery of Russian-sourced commodities would expose them to legal or reputational risks. While it is hard to anticipate the economic shockwaves that could flow from designation, as Russia’s economy is far larger from that of any other country previously designated, they could well compound the war’s negative effects on the world’s most vulnerable — who are already suffering from commodity shocks and increasing food insecurity, especially in the Middle East and North and Sub-Saharan Africa.

Fifth, the nature of a U.S. designation and the criteria generally associated with removal from the list may also heighten Russian worries that U.S. policy is actually aimed at regime change. Since one of the two statutory paths for removal involves a change in the designated country’s leadership, Putin may interpret a designation as an overt call for a change in Russia’s government — a dangerous signal to send a nuclear-armed adversary, and one that Biden has carefully avoided taking.

Finally, for all the risks and costs the designation would pose, the likelihood that it will succeed in significantly changing Russia’s course is exceedingly low. Intensive sanctions, war crimes investigations and international condemnation of Russia’s actions have not deterred Putin so far; it is hard to imagine that this terrorism listing will be the straw that finally breaks Moscow’s resolve to keep fighting the war.

So what should Congress do? The best way for Congress to send a message condemning alleged Russian atrocities is to support the efforts the administration is already undertaking to ensure accountability for them. Support for current Ukrainian investigatory activities and evidence gathering of war crimes can facilitate national and international court cases when those become possible.

Senior lawmakers have already signaled that they have the administration’s back in these efforts, but one way that they could make their support for accountability even clearer would be to close a loophole in the U.S.’s own statutory scheme for prosecuting war criminals. The 1996 War Crimes Act imposes criminal penalties for war crimes, including grave breaches of the Geneva Conventions, that are committed by or against U.S. citizens or members of the U.S. armed forces. Amending it to allow the prosecution of foreign nationals present in the U.S would send a signal of solidarity to Ukraine and make clear that the U.S. considers itself part of — rather than exception to — the international criminal justice system.

Thus far, the U.S. response to Russia’s war in Ukraine has been notable for being equal parts robust and prudent. Congress should not push it off course with a designation that risks so much. The most promising way forward is for the U.S. to follow its current course: supporting Ukraine with arms and funds and bolstering global accountability efforts, while steering clear of policies that risk further harm both to Ukraine and the wider world.

Michael Wahid Hanna is the U.S. program director at the International Crisis Group and a nonresident senior fellow at the Reiss Center on Law and Security at New York University School of Law. Delaney Simon is a senior analyst with the U.S. program at the International Crisis Group.

Originally published in Politico.

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