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AT A GLANCE Plenary – November II 2022

EPRS | European Parliamentary Research Service Author: Beatrix Immenkamp with Gabija Leclerc, Members' Research Service

PE 738.218 – November 2022

Russia's war on Ukraine: Designating a state as a sponsor of terrorism

Ukrainian President Volodymyr Zelenskyy first asked the United States (US) Congress and the White House to add Russia to the State Department's list of state sponsors of terrorism in April 2022. He has since extended the call to governments around the world. Both the US House of Representatives and the Senate have passed resolutions calling on the Secretary of State Antony Blinken to add Russia to the list, which he has so far refused to do. On 18 October 2022, the European Parliament held a debate on designating Russia as a state sponsor of terrorism. Parliament is expected to vote on a follow-up resolution calling for the recognition of the Russian Federation as a state sponsor of terrorism during its November II plenary session.

Background Russia's war on Ukraine grossly violates international law and is causing massive loss of life. Russia is directing attacks against the civilian population and targeting civilian infrastructure, including hospitals, medical facilities and schools. The Russian military has intensified its brutal assaults on Ukrainian cities, targeting power stations, water supply and other key infrastructure. There is no internationally agreed definition of terrorism. The Council of the EU has defined terrorist offences as including criminal offences committed with the purpose of seriously intimidating a population and seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country. However, as Commissioner Ylva Johansson noted during a speech delivered in plenary on 18 October 2022, the EU does not currently have a legal framework in place to designate a third country as a state sponsor of terrorism.

State sponsors of terrorism The US State Department currently lists four countries as state sponsors of terrorism, 'for having consistently provided support for acts of international terrorism'. Syria has been on the list since 1979, Iran since 1984, the Democratic People's Republic of Korea (North Korea) since 2017 and Cuba (again) since 2021. Iraq, Sudan and Libya previously featured on the list. The designation has wide-ranging consequences in the area of sanctions and state immunity. Sanctions include restrictions on US foreign assistance, a ban on defence exports and sales, certain controls over exports of dual-use items, and miscellaneous financial and other restrictions. The designation has important economic repercussions for all countries that continue to engage with the designated state, as they may fall foul of US secondary sanctions. As the same time, the designation removes the immunity before federal and state courts in the US to which foreign states are normally entitled. Both houses of Congress have now introduced legislation that would see Russia added to the list of state sponsors of terrorism. If Russia were designated as a terrorist state, it would no longer be immune from suits brought in the US by US nationals, members of the US armed forces and US government employees in relation to Russia's actions in Chechnya, Georgia, Libya, Syria, Sudan and Ukraine, some dating back decades. Successful plaintiffs could execute their judgments against frozen Russian assets. The designation of a state as a sponsor of terrorism has traditionally been reserved for states the US considers 'pariah states'. In essence, the US has no formal diplomatic or commercial relations with any of the states it has designated as state sponsors of terrorism. Canada also has a 'State Supporter of Terrorism' mechanism under its State Immunity Act, with Iran and Syria listed as state supporters of terrorism since 2012.

EU sanctions to combat terrorism In December 2001, the Council adopted Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 on the application of specific measures to combat terrorism, enabling the Council to designate persons, groups and entities (but not states) involved in terrorist activities. The designation of persons as terrorists entails an asset freeze and a prohibition from making funds and economic resources available. Separate sanctions regimes exist targeting the Taliban, and persons and entities associated with al-Qaeda and ISIL/Da'esh.

EPRS Russia’s war on Ukraine: Designating a state as a sponsor of terrorism

This document is prepared for, and addressed to, the Members and staff of the European Parliament as background material to assist them in their parliamentary work. The content of the document is the sole responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official position of the Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © European Union, 2022.

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EU sanctions on Russia In response to Russia's illegal invasion of Ukraine, the EU has imposed a set of sanctions on Russia, in a succession of eight packages agreed since 23 February 2022, adding to those adopted in 2014 in response to the illegal annexation of Crimea. The cumulative effect of the sanctions is unprecedented in scale and nature, including sanctions on individuals and entities, drastic financial and trade restrictions – aimed at particularly sensitive sectors such as aviation, energy and technology, and restrictions on Russian media broadcasting. However, none of the sanctions packages on Russia adopted so far includes a reference to Russia as a terrorist state or a state sponsor of terrorism, and none purport to call into question the sovereign immunity of the Russian state (even though the EU is looking into confiscating the frozen assets belonging to Russian and Belarusian individuals subject to sanctions). The EU and its Western allies have frozen an estimated US$300-500 billion worth of Russian central bank reserves held abroad. There are recent examples of sovereign assets being confiscated and used to compensate victims of injustice, but the confiscation of Russia's sovereign funds raises complex legal and political issues. In a related development, the United Nations General Assembly adopted a resolution on 14 November 2022, recommending member states create an international register of damage to serve as a record of evidence and claims information.

Sovereign immunity and international law State or sovereign immunity is a well-recognised principle of customary international law based on the sovereign equality of states in the international legal order: no state can be subject to the jurisdiction of another state. The plea of state immunity prevents a national court from exercising its adjudicative and enforcement jurisdiction in a dispute where the defendant is a foreign state (or its agents). While doctrine and practice have evolved from absolute immunity (i.e. a total bar against adjudicating and enforcing a claim in the local courts of a state against a foreign state) into restrictive immunity, a foreign state's immunity from enforcement or execution of coercive measures against it or its property normally remains absolute. Among Western nations, only the US and Canada currently apply the terrorism exception to state immunity.

Victims of terrorism – Rights in the EU In response to terrorist attacks that have hit Europe in recent years, the EU has introduced laws to better protect and support victims of terrorism. Victims of intentional and violent crime – which includes terrorist attacks – have the right to access national compensation schemes that Member States have to put in place. However, compensation is essentially limited to victims of terrorist crimes committed inside the EU; victims of extra-territorial offences only qualify in relation to criminal proceedings that take place in the EU. Third- country nationals and stateless persons who have been victims of crime on EU territory can also benefit. However, existing legal provisions at EU-level do not provide a legal basis for compensation claims against third states that engage in terrorist acts or sponsor terrorism.

Parliamentary resolutions designating Russia a state sponsor of terrorism The Council of Europe's Parliamentary Assembly, and the national parliaments of four EU Member States have adopted non-binding resolutions declaring Russia to be a state sponsor of terrorism. The Lithuanian Parliament adopted its resolution on 11 May 2022, the Latvian Parliament followed suit on 11 August 2022, the Estonian Parliament adopted its resolution on 18 October, and the Polish Senate on 26 October 2022. On 13 October 2022, the Council of Europe's Parliamentary Assembly adopted Resolution 2463 (2022), calling on Council of Europe Member States to declare the current Russian regime a terrorist one.

European Parliament position A resolution on 'the fight against impunity for war crimes in Ukraine' adopted on 19 May 2022 urged the Commission to establish 'a legal instrument allowing for frozen Russian assets and funds to be confiscated so that they can be used as reparations and for the reconstruction of Ukraine'. On 6 October 2022, Parliament adopted a resolution on 'Russia's escalation of its war of aggression against Ukraine', strongly condemning the massive violations of human rights and war crimes committed by the Russian armed forces, and calling for sanctions on Russia to be expanded to new areas. It also called on the Commission and co-legislators to work swiftly to complete the legal regime for confiscation of assets frozen by the sanctions. The motion for a resolution recognising the Russian Federation as a state sponsor of terrorism was tabled following the debate in plenary on 18 October 2022 and is now due to be put to the vote.