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Ukraine’s fight to get Russia designated as state sponsor of terrorism, explained

by Anastasiya Gordiychuk October 18, 2022 1:07 AM 8 min read
The exhumation process at a mass burial site containing around 450 graves in liberated Izium, Kharkiv Oblast, on Sept. 16, 2022. (Kostyantyn Chernichkin/The Kyiv Independent)
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Editor’s Note: This interview has been edited and condensed for clarity.

Ukraine’s Prosecutor General recently published a report putting Russian war crimes and crimes of aggression at 40,040 since Russia’s full-scale invasion began on Feb. 24.

With territories recently liberated from Russian occupation by Ukrainian forces often comes the discovery of mass graves and torture chambers. The United Nations human rights agency recently confirmed 15,592 civilian casualties over the last eight months of war.

Ukrainian President Volodymyr Zelensky has repeatedly called on the U.S. State Department to recognize Russia as a state sponsor of terrorism due to the atrocities committed by the Russian army and its proxies.

Responding to his calls, U.S. Senators passed a resolution calling on the Secretary of State Antony Blinken to designate Russia as a state sponsor of terrorism. Both houses of Congress have also introduced legislation that would give Russia the label.

According to the authors of the legislation in the U.S. Senate, doing so would further curb defense and technology exports to Russia, impose additional financial restraints, and eliminate Russia’s sovereign immunity in American courts, allowing the families of victims of Russian aggression to file lawsuits and civil claims against the country.

But so far, the administration of President Joe Biden has signaled an unwillingness to label Russia a state sponsor of terrorism, saying it could jeopardize a U.N.-backed grain deal to move Ukrainian grain out of the Black Sea ports and even hold up humanitarian aid to Ukraine.

In response to Russia’s full-scale invasion, the International Working Group on Russian Sanctions, also referred to as the Yermak-McFaul Expert Group after Ukraine’s Presidential Chief-of-Staff Andriy Yermak and former U.S. Ambassador to Russia Michael McFaul, has been working to punish both Russia and Belarus for their crimes against Ukraine.

The Kyiv Independent spoke with Vladyslav Vlasiuk, secretary of the Yermak-McFaul sanctions group, lawyer, and deputy chief of the Ukraine Task Force policy group, about the chances of Russia being labeled a state sponsor of terrorism and what the label would bring.

The Kyiv Independent: What are the chances that the U.S. and Canada would designate Russia as a state sponsor of terrorism?

Vladyslav Vlasiuk: We are unsure about any chances in Canada because, as I know, there are no initiatives in that regard.

In the U.S., there is very strong pressure. In my opinion, they will do so — they will pass the resolution, which can be even not a state sponsor of terrorism designation but sort of an alternative status like a state responsible for terror against civilians. I mean, the bipartisan support for such a resolution puts intense pressure on the administration.

If House Speaker Nancy Pelosi is consistent with what she has been saying, Congress can designate Russia as a state sponsor of terrorism itself because it is essentially Congress that sets the rules for this (designation). The rule on who designates state sponsors of terrorism can simply be changed, and Congress can do this designation itself. This is what Pelosi is threatening the administration with.

They just say, “Okay, if you don’t want to do so, we will do it ourselves.” The trick is that if (Congress passes the bill), it must be then signed by the president. And the president can say “no” to signing this bill. It is not that easy for us, but we will see. At least the pressure is there.

The Kyiv Independent: Does Russia meet the criteria of being a state sponsor of terrorism? Which of Russia’s actions specifically could qualify it for the designation?

Vladyslav Vlasiuk: Historically, the very first case was North Korea in 1988 for the downing of a (Korean Airlines passenger) airliner in 1987. Given that and the many cases of the state kidnapping different people in North Korea and South Korea, the U.S. designated North Korea as a state sponsor of terrorism (the designation was rescinded in 2008 but reinstated in 2017 over the abductions).

But then we got Iran, who was clearly very much involved in supporting international terrorist organizations at the state level.

And then we got Syria. In Syria, some state agencies committed terrorist acts, but also, for the very first time, we could see that the state army committed mass killings or bombed civilian areas.

But here we’ve got Russia. If we look at the shelling of civilian areas, torture, and cases that might be considered genocide, we see that Russia is not just supporting terrorism; it is committing terrorist acts with a direct state agent — the state army. And (these acts) are regularly committed by the (Russian) army.

So again, what Russia has committed is far beyond the threshold of what is considered consistent, committed terrorist acts. Moreover, these acts are being committed by state bodies and agents, which makes it clear that Russia is at least a state sponsor of terrorism or is a terrorist state.

There aren’t actually any stated criteria for a state sponsor of terrorism designation. Basically, if a state supports terrorists’ actions or supplies terrorists with weapons, helps them to hide, provides information, or its agencies or agents commit murder, cyber-attacks, hijackings, or kidnappings, it can be considered a state sponsor of terrorism.

The Kyiv Independent: What might the consequences be of designating Russia as a state sponsor of terrorism?

Vladyslav Vlasiuk: The main result would be the ultimate diplomatic and political isolation of the terrorist country. And maybe even more important is further sanctions pressure. And I’m not just talking about new sanctions but also about making it more difficult to lift the already imposed sanctions. And last but not least, such a designation would be correct given what Russia has done.

The Kyiv Independent: Are there any other countries apart from U.S. and Canada that can issue a formal designation of state sponsor of terrorism or a similar status?

Vladyslav Vlasiuk: I am not aware of other countries that have such legislation. Some countries call Russia a “state sponsor of terrorism” or “terrorist state.” For instance, Lithuania and Latvia have passed resolutions. Maybe Estonia will join soon. Also, the Parliamentary Assembly of the Council of Europe has adopted a resolution labeling Russia “a terrorist regime,” thus becoming the first international organization to do so. These declarations have no legal consequences. But they are useful in terms of putting political pressure on Russia.

The Kyiv Independent: In September, U.S. senators introduced a bill to label Russia as a state sponsor of terrorism. The State Department and Biden administration are against this move, saying it could jeopardize the grain deal and even hold up humanitarian aid to Ukraine. What could mitigate these concerns?

Vladyslav Vlasiuk: For humanitarian or other reasons, exemptions, carve-outs, or certain amendments within the legislation can always be made (when designating a country as a state sponsor of terrorism).

If we look at Iran’s case, there were a couple of exemptions. One was allowing communication on the official level, which, by a general rule of this designation, is banned. And there was also a carve-out for financial sanctions, which allowed a certain bank to be involved in transactions with Iran at the state level. (The designation) bans a lot. If there is a good reason to make certain carve-outs for this designation, there can always be some exemptions, and it can always be described in legislation.

The Kyiv Independent: If Russia is designated as a state sponsor of terrorism by the U.S. and Canada, it could open the possibility of private lawsuits by U.S. and Canadian citizens who are victims of Russian aggression. What implications could this have for the U.S, Canada, and Ukraine?

Vladyslav Vlasiuk: It would take away state immunity within U.S. courts by civil lawsuits. This means that a citizen of the U.S. can file a lawsuit against Russia due to damage caused to their family or business. The U.S. can then enforce a ruling of the court. There is about $40 billion of Russian Central Bank money in the U.S., and an average U.S. court could just take some of that money to pay a plaintiff if there is a successful lawsuit.

States always have state immunity, which means that a citizen cannot simply come to court in Kyiv to file a lawsuit against, say, Canada, win $1,000 and then a state enforcement authority of Ukraine will come to the Canadian Embassy in Kyiv and take $1,000 from their accounts. It is impossible. It never happens.

Therefore, state immunity is a big deal, and stripping it is an even bigger deal.

The problem for Ukraine, in the case of this scenario, is that we’re trying to get a lot of (Russia’s) state funds held in different G7+ countries’ jurisdictions. We want to have these frozen assets confiscated in favor of Ukraine. If there are some lawsuits being filed by U.S. private persons, then the money will just start going away from Ukraine. But there is also a solution for that.

Before designating Russia as a state sponsor of terrorism, the U.S. could make certain decisions to move the frozen state assets of Russia to some account or something like that. Or they can also say, “Okay, this will not strip Russia of their lawsuit immunity,” or it does so, but only for a certain amount of money. There are ways.

The Kyiv Independent: In the fifth paper published by the Yermak-McFaul group, you called to put Russia on the Financial Task Force blacklist. What would it achieve?

Vladyslav Vlasiuk: The Financial Task Force prevents any misuse of international financial transactions or stops financial violations by looking for financial traces or evidence of misuse of international money. The very first goal is to combat money laundering. The second goal would be combating terrorism.

What does it mean practically? It includes large economies with highly developed financial sectors. Being blacklisted means you can not participate in international financial transactions anymore. Why? Because all the financial transactions that go out of your country will require very thorough compliance. That compliance will take so much time and hard work to be cleared that it will make any international transaction out of the country nearly impossible. And it will more or less stop any business activities.

So being blacklisted is a big deal. Russia’s exclusion from the task force will send a clear signal to western companies and financial institutions that Russia is no longer considered a reliable financial center in which their funds can be protected. All the countries that have been blacklisted so far are the same as the ones designated as state sponsors of terrorism.

The Kyiv Independent: Do you think there is a chance that the Financial Action Task Force will blacklist Russia? If yes, what would the process look like?

Vladyslav Vlasiuk: A plenary session of the task force commences on Oct. 18. We are fighting to get blacklisting Russia onto the agenda. There are a lot of positive signals that a lot of countries do believe Russia should be blacklisted. The alternative plan will be to expel Russia from the task force, which will mean that Russia cannot participate in the organization, which in turn means all the implications for its financial institutions. So basically, this is a big deal.

The difficulty for Ukraine is that Ukraine is not a member of the Financial Task Force so we are acting with the help of other countries. A partial success will be having this issue on the agenda and having as many votes in favor as possible. It is going to be a clear signal that the majority of the countries are actually ready to kick Russia out of the task force and blacklist it. This is not a quick process, but I am rather optimistic about it. We will continue pushing for other financial sanctions anyway.

The Kyiv Independent: Have there been any changes in sentiments or new legal arguments to designate Russia as a state sponsor of terrorism and include it on the FATF blacklist following Russia’s Oct. 10 mass strike on Ukraine’s civilian infrastructure?

Vladyslav Vlasiuk: Our partners have been especially active since the mass strike. We feel really strong support and dedication. And, of course, we will make good use of it, in a good sense, to increase pushing for further sanctions.

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