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Opinion Why designating Russia a state sponsor of terrorism is a bad idea

Russian President Vladimir Putin observes St. Petersburg's naval parade on Sunday. (Alexey Danichev/Sputnik Host Photo Agency / AFP via Getty Images)
Comment

Ingrid Brunk Wuerth is the Helen Strong Curry chair in international law at Vanderbilt Law School, where she also serves as director of the Branstetter Litigation and Dispute Resolution Program. She is also an editor in chief of the American Journal of International Law.

Russia has done many terrible things in Ukraine and beyond. It is thus understandable that President Volodymyr Zelensky, House Speaker Nancy Pelosi, members of the Senate and many others have called on the Biden administration to designate Russia a state sponsor of terrorism. That designation (currently applied only to Cuba, Iran, North Korea and Syria) may seem like a good way to further punish Russia, help the Ukrainians and give more concrete form to our outrage. But it is not.

The state sponsor of terrorism designation is not a symbolic act to chastise states that behave badly. Instead, it is a legal trigger embedded in an extremely complex statutory and regulatory framework. The effects of pulling that legal trigger are not easy to identify and untangle. In the case of Russia, some of those effects would be negative for Ukraine and for U.S. interests. They could even help Russia.

The statutes are complicated, but a state sponsor of terrorism designation affects two general areas of the law: domestic litigation and sanctions. In terms of domestic litigation, foreign states are entitled to immunity before federal and state courts in the United States. There are limited exceptions to immunity, including special exceptions for cases against state sponsors of terrorism. Proposals to designate Russia would do so based on Vladimir Putin’s conduct in the Second Chechen War and in Georgia, Libya, Syria, Sudan and Ukraine. As a result, under the statute, Russia would not be immune from suits that arise out of its conduct in those countries, dating back decades. But here is the catch: only a very limited class of plaintiffs may sue — specifically, U.S. nationals, service members and government employees. Successful plaintiffs could then execute their judgments against frozen Russian assets.

This litigation would have several pernicious effects. It would allow Americans to recover from the frozen assets, but not Ukrainians (or Libyans or Syrians or Georgians) who have suffered from Putin’s brutal conduct. It would deplete frozen Russian assets that could otherwise provide important leverage in efforts to negotiate a peace deal — one that could provide compensation to many groups of injured people.

Compensating U.S. victims of Russian aggression from frozen Russian state-owned assets might also encourage other countries to compensate their nationals from Russian assets that they have frozen, further diminishing the global pool of resources available to assist Ukraine and creating more cracks and fissures in what should be a unified global response. After all, other countries have rejected the designation, calling instead for more cooperation.

The designation would also affect sanctions. The United States has, of course, already imposed a wide range of tough sanctions on Russia, ones that have caused it to default on its sovereign debt. The overall impact of those sanctions on the Russian economy is not yet clear. More sanctions may be needed to increase the pressure. But most sanctions triggered by a state sponsor of terrorism designation — such as a prohibition on aid or military exports and financial sanctions — are already in place.

The designation would have an impact in terms of secondary sanctions. Secondary sanctions might restrict trade and drive up the global prices for grains and other essentials in ways that may in turn erode global support for pressure against Russia. The U.S. needs committed allies to isolate Russia. To the extent further sanctions against Russia are needed, they should be tailored for Russia, in particular in the energy sector and against individual officials.

Secretary of State Antony Blinken should not designate Russia a state sponsor of terrorism, Congress should stop pressuring him to do so, and Congress should not attempt to make the designation itself. Notably, members of Congress who are calling for this have failed to explain which specific sanctions (or other effects) would result from the designation and why those would be helpful. They ignore the implications for domestic litigation. To the extent Congress wants to impose further sanctions on Russia, it should do so with legislation tailored for that purpose — not with the blanket trigger of the “state sponsor of terrorism designation,” which would have unintended consequences.

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