Putin’s Russia is a Terrorist State: Should it be Written into Law?
A Conceptual, Legal and Above All Practical Debate
A shopping center in the city of Kremenchuk in the Poltava region of Ukraine after a Russian rocket strike on June 27, 2022 at 15:50. Author: State Emergency Service of Ukraine
One thing should not be open to discussion today: Putin’s Russia is a terrorist state. By the nature of its actions, it is impossible to distinguish this regime from terrorist groups such as Al Qaeda or the Islamic State, except that the Kremlin’s civilian casualties, in Ukraine, Syria and Chechnya in particular, are considerably higher. Many war crimes and crimes against humanity committed by the Russian regime would have been immediately recognized as terrorism if they had been perpetrated by Islamist or right-wing terrorist groups.
It should be remembered that Putin’s rise to power was marked by terrorist actions generally attributed to the FSB—the blast of several apartment buildings in Russia in September 1999, which served as a pretext for launching the second Chechen war. It has also been suggested that there are strong links between the KGB and the German terrorist group Rote Armee Fraktion, also known as the “Baader Gang,” which committed assassinations in Germany in the 1980s. The KGB agent Putin based in Dresden may have played a role, although this cannot be proven with absolute certainty.
The Ukrainian authorities’ repeated demands since April 2022 to recognize the terrorist character of the Russian state are based primarily on factual evidence, but also on a strategy to demonstrate the literally beyond-the-norm nature of the Russian regime’s criminal actions in Ukraine. However, many analysts, including legal experts, who could not be suspected of any complacency towards Moscow, and the authorities of democratic countries seem to be wary of this request. Indeed, to some, it seems to involve a conceptual and legal challenge to which they are somewhat reluctant, particularly because they do not want to make an exception in the Russian case. Others also doubt the usefulness of such official recognition for the Ukrainian cause. The latter also comes up against divergent legal systems among democratic states with regard to terrorism and even more so to “state terrorism”.
The answer to this question lies at the intersection of four dimensions.
The first is conceptual and has to do with the very definition of terrorism and its various components. It relates directly to the scope of the notion.
The second is strictly legal: how can the terrorist act be specifically characterized in legal terms in relation to other categories of mass crime? Does this legal definition carry a specific incrimination?
The third is practical: does the designation of a state or a group of people within it as “terrorists” have any particular effectiveness?
Finally, the fourth dimension is that of political communication, which is by no means secondary: is there a specific interest in designating an entity, in this case a state, as terrorist?
Can we speak of state terrorism?
Conceptually, the notion of state terrorism is often contested and some prefer to reserve the term "terrorist" for non-state organizations. The conservative historian and political scientist Walter Laqueur considered that, as the holder of the “monopoly of legitimate violence”, an expression borrowed from Max Weber, the act of violence was part of the very definition of state power. Others consider that since the leaders of states could be subject to other charges by international justice once they were defeated or by their own people if they were overthrown, the charge of terrorism against them was superfluous.
However, as a matter of fact, states, directly or indirectly, through their agents or implicit proxies, may well commit terrorist acts of the same nature as a non-state group. The dominant characteristic of any terrorist act is unanimously recognized as its political motivation, and states obviously commit such acts. Every act of terrorism has a political strategy. Thus, a purely mafia group can commit atrocities (revenge on a group of people) and in particular assassinations, either of rivals or of representatives of the State (judges, police officers, political figures) which will not be considered as terrorist because the political motive is lacking. The same applies to a fatal shooting in the street by a lunatic whose motive is not political.
The concern of those who wish to limit the notion of terrorism is linked to their desire to grasp the concept in its specificity. This desire is legitimate and it is perfectly true that an extension of the label “terrorism” to any act of extreme political violence would not make sense and would allow the notion both its meaning and its dramatic character. But in the present arguments, there is nothing to limit a priori terrorist acts to a non-state entity, even though not every act of violence by a state is terrorist.
One of the classic distinctions is that between internal and external. Many refuse to apply the label “terrorist” to acts committed by states within their territory, at least as far as states are concerned. In particular, the assassination of opponents—in Russia, for example, those of Anna Politkovskaya, Natalia Estemirova, Stanislav Markelov, Boris Nemtsov and hundreds of others—would be sufficiently abominable and condemnable that there would be no need to add the label “terrorist”. The same acts committed by a non-state terrorist group (such as that of Aldo Moro by the Italian Brigate Rosse on May 9, 1978, of Alfred Herrenhausen on November 30, 1989 by the Rote Armee Fraktion—which presumably, as we already reminded of, had quite intense operational links with KGB agent Vladimir Putin—of Renault CEO Georges Besse by Action Directe on November 17, 1986) would be terrorist.
Some also hesitate to add the terrorist label to the war of extermination waged by Bashar al-Assad against his own people, even though his practices are not fundamentally different from those of the Islamic State—they are just more massive. No one would think of using this term today for the Holocaust, the Armenian genocide, the genocide committed by the Khmer Rouge or the genocide perpetrated by the Hutus against the Tutsis in Rwanda. It is quite different for the precisely terrorist acts committed by Al Qaeda in the United States, in Europe or in Africa or by Boko Haram in Nigeria.
Externally, things seem more complicated. Most often, targeted assassinations of opponents abroad, a relatively old practice, are not considered as terrorist acts, which again does not mean that they would be less reprehensible, if they are committed by states or persons mandated by them. As much as one can consider as a (domestic) terrorist act the assassination of Tsar Alexander II in March 1881 by the Russian terrorist group Narodnaya Volia or even that of François-Ferdinand on June 28, 1914 by the Serbian nationalist Gravilo Princip, it is rare, and in any case without consequence, to consider as such that of the Rosselli brothers refugees in France by the extreme right-wing organization La Cagoule mandated by fascist Italy in 1937, that of the former Prime Minister of the Shah of Iran Chapour Bakhtiar by the Mullah regime in August 1981, or that of Jamal Khashoggi in Istanbul by members of the Saudi Arabian security services on October 2, 2018. The same applies to the assassination of Alexander Litvinenko by the SVR on November 23, 2006, presumably on direct orders from Putin, the attempted assassination of the Skripals on March 4, 2018, or that of Chechen dissidents or Kurdish opponents.
On the Western side, targeted assassinations of leaders who are themselves terrorists or leaders of parastatals who have committed crimes against humanity, even if authoritarian regimes have tended to label them as terrorist under a certain whataboutism—one thinks in particular of the “execution” of Qassem Soleimani on January 3, 2020—escape the definition. Even the assassination, presumably by the Syrian services, of the French ambassador to Lebanon, Louis Delamarre, on September 4, 1981, was not labelled as a terrorist act—the same is true for the American ambassador John Christopher Stevens on September 11, 2012, in Libya.
A collective act committed by a state is probably more easily described as terrorist than an act targeting a single individual: this was the case for the Lockerbie bombing of December 21, 1988 (259 victims) or the bombing of flight 772 (DC10 of the UTA airline) on September 19, 1989 (170 victims), both committed by the Libyan secret services of Colonel Gaddafi, or the AMIA attack of 18 July 1994 in Argentina, attributed to Hezbollah, or the two attacks of 23 October 1983 against the French and American contingents of the Multinational Security Force in Beirut, attributed to the same. Hezbollah is moreover among the organizations recognized as terrorists even if it is directly linked to a state. The explosions on October 26, 2014, with two Czech victims, and the following December 3 of the ammunition depot in Vrbetice attributed to the GRU can hardly be considered anything other than a terrorist act.
The label “terrorist”, as we shall see, can therefore be seen as a sign of the mode of execution of a criminal action and is intended to warn of this, but not all the worst acts are necessarily definable as “terrorist” in the strict sense of the word. The question remains as to how these concepts translate into legal terms. The difficulty of reaching agreement on this point is compounded by the fact that numerous attempts to define it upstream, despite convincing pleas to find common ground, have not been entirely successful.
Terrorism as a matter of law
On a legal level, the designation of an entity as a terrorist has implications, although these vary from country to country. These margins of maneuver left de facto to the States in the definition and qualification is moreover the result of the lack of rigor of any operational international definition, or even its absence.
Some countries, notably France, have set up a special prosecutor and a special court to prosecute and judge terrorist acts—this court, however, fully comply with the principles of democratic justice, notably the rights of the defense. The European Union also has its own framework for defining terrorist acts and “regulating” the consequences for those involved in them. The United States also has such legislation, beyond the special procedures implemented after September 11, some of which were strongly contested and partly revised since. Both the EU and the US have also drawn up lists of organizations defined as terrorists, the scope of which extends beyond the borders of individual states. In addition to the classic and obvious measures, such as prohibiting entry into the country, issuing international arrest warrants, freezing assets, and penalizing the relations of any person with these organizations or their representatives, entities deemed to be terrorists do not benefit from any international recognition, and are even, in a way, ostracized from the international community.
As can be seen, because of the horror of a terrorist act, the legal arsenal developed against organizations that engage in such crimes is the most severe and radical available. Three major differences with those responsible for war crimes or crimes against humanity are immediately perceptible.
Firstly, the competent jurisdiction is national for the crime of terrorism, whereas it is essentially international for war crimes or crimes against humanity. However, a nuance can be made: by virtue of universal jurisdiction, national jurisdictions may also have to deal with these crimes.
Secondly, war crimes, by definition, but most often also crimes against humanity and genocide when they take place in a conflict between States, most often take place in the context of a war. It is true that terrorism can be defined as an act of war, but it most often occurs outside of an open and declared war and often also in a framework that is not that of inter-state war. When there is a war, other classifications are used than those referring to terrorism. Sometimes it is even considered that as soon as there is a war or even a guerrilla war, terrorism somehow disappears.
Finally, war crimes and crimes against humanity, even if they are also the work of a regime and a state apparatus whose leaders are known, have an individual dimension. They refer to the personal responsibility of each person who cannot hide behind a given order to exonerate himself. In the context of a terrorist act, it is certainly named terrorists who are judged, because it is always singular individuals who must account for their acts, but very often it is organizations that are first labeled as terrorists, thus erasing the names of the criminals. They are the ones who get the attention—ETA, Boko Haram, ISIS, Al Qaeda, Hezbollah, the PKK, etc.—meanwhile, this is one of their political objectives.
The designation of a state as a terrorist is not easily practiced in the domestic law of states or the organizations to which they belong. The official documents of the European Union are silent on this point, even if they do not formally exclude it. The EU sanctions regimes differ according to whether they are aimed at non-state entities (terrorist groups) or states that are not officially accused of terrorist acts. The United States has introduced a specific notion of “state sponsors of terrorism”, even if these are in fact states which, at least in some cases, are themselves terrorists. The current legislation in this regard includes four states: North Korea, Iran, Syria and Cuba. It has also in the past included Libya, Iraq, Sudan and the former South Yemen on this list.
If Putin’s Russia were to be included, the name would have to be careful of one potentially confusing element. The label “support” or “sponsor” would implicitly imply that entities are given an existence of their own, even if they are used by the Russian state and presumed to be under its control, such as representatives of entities wrongly called “separatists”, especially in Ukraine, or the Wagner mercenary group. However, these entities are in fact part of the state's terror apparatus outside its borders. Russia’s acts of a terrorist nature in Syria and Ukraine were committed directly by the Russian state. That said, one could argue that the same is true of the Iranian Revolutionary Guards and Hezbollah. This would also imply an evolution of jurisprudence and the admission of terrorism within open warfare.
Should the law evolve in this direction? The answer lies primarily in the practical implications of this acceptance and the possible advantages in terms of political communication.
Does the designation of Russia as a terrorist have practical implications?
It is thus proven that the Russian state does commit acts of a terrorist nature. This is also the case of the illegal government in place in Belarus, as evidenced by the hijacking of the Ryanair plane (flight 4978), operated by the KGB of this country, possibly with the help of the Russian secret services, on May 13, 2021, the sole purpose of which was to arrest the dissident Raman Protasevich and his fiancée Sofia Sapega. An act of air piracy can hardly be considered anything other than terrorism.
But what would be the consequences of such a designation of Russia by democratic countries, including those of the EU, the United States, Canada, Japan, Australia and some others? The first would be the complete freezing of the foreign assets of this state as well as of its leaders and persons considered directly or indirectly—notably through propaganda actions—accomplices of this state. The second would be the freezing of all economic and commercial relations with that state or, in any case, of any relations likely to give that state any form of income or advantage in terms of development. The third would be the imposition of sanctions on any third state and any economic actor, particularly private, that would seek to undo the quasi-embargo on commercial, economic and financial relations.
A fourth consequence could be added: the penalization within the countries that would have enacted such a classification in law of any act of propaganda, henceforth assimilated to a form of apology for terrorism, whether it comes directly from the Russian state or its adjuncts or from nationals. Such a measure, which is part of the fight against corruption linked to foreign influences, would certainly be one of the main virtues of such a labeling.
Finally, the fifth consequence would be directly diplomatic: it would logically become impossible to maintain normal diplomatic relations with Russia—which certainly does not exclude the existence, as they are generally called, of unofficial channels of communication. The second logical consequence is that representatives of a terrorist state would lose their diplomatic immunity and could be arrested on the soil of any third state that has issued such legislation. In the same way as any terrorist group, the Russian state would become a pariah state. It should be noted that some countries, including Lithuania, have already officially designated Russia as a terrorist state. The U.S. Senate has already unanimously passed a resolution to this effect on July 27, 2022 and the House of Representatives is expected to follow. It could be difficult for the State Department, which in principle relies only on the adequacy of the facts and the incrimination, not to follow, even if politically many expect a blockage as the Biden administration seems divided on this subject—as indeed on the way to proceed in Ukraine. In any case, we are far from the naive and dangerous idea, which I have refuted elsewhere, that the Russian state could be an ally in the fight against terrorism and that this should lead to turning a blind eye to certain other behaviors...
Such a development has given rise to four types of objections that should be recalled.
First, some argue that the Russian state and certain Russian personalities and entities are already heavily sanctioned. International sanctions target entire sections of the Russian economy and considerably restrict its financial capabilities. They have a direct effect on the Russian economy and affect its ability to wage war. Therefore, they consider that, in this respect, the designation of this state as a terrorist or sponsor of terrorism does not bring any new element. They might also note that the Kremlin’s media are already largely banned from broadcasting in many countries, including those of the EU, and that, as far as propagandists are concerned, if they so wish, the Western states already have all the necessary legal arsenal or can put it in place.
Secondly, there are those who are alarmed by the risk that the name of terrorist will end up prevailing over all other accusations against the Russian state, including its war crimes, crimes against humanity, genocide and aggression. It would be more important to convict the Russian leaders and their executors of one or more of these crimes, which may already carry a life sentence. They point to the risk of confusing any crime against humanity, or even any large-scale war crime, with an act of terrorism.
Thirdly, some point to the risk of double standards: should Russia alone be condemned and other states that are not on the American list and that have committed similar acts, albeit with less intensity, be left alone? If the argument has a whataboutistic tone, it can nevertheless touch the opinion that could protest the immunity of the Burmese junta or even of Saudi Arabia or the United Arab Emirates, notably for their action in Yemen.
Finally, a recent article points out that such a designation would give the nationals of states that have enacted such legislation the possibility of suing the Russian state directly and having the state's property seized by the courts to compensate for their personal damages—this could be the case of families of Westerners killed or severely injured by Russian forces in Ukraine or Syria in particular. This would limit the possibility of using these assets abroad to finance part of the reconstruction of Ukraine and would give less weight to the West in possible discussions once Kyiv is completely victorious.
While each of these arguments must be considered, none is entirely convincing.
With regard to the first, it can be pointed out that the designation of Russia as a sponsor of terrorism would literally force the development of the full range of possible sanctions, which is not yet entirely the case. It would also be a decisive argument in the increased repression of the regime's foreign propagandists.
The second argument points to a potential drift, but it can be easily corrected by proper communication. A particular Russian leader or person could be criminally charged with both terrorism and war crimes, for example. This is by no means exclusive.
The third argument is also flawed: first, there is nothing to prevent such a label from being extended to other states, if necessary—and this has already been done. Secondly, in the case of the Russian state, the crimes are both more massive and diversified than those of most other states where the internal dimension of the crimes is often much more marked. The Russian state, over the last 23 years, has in fact played on a whole range of terrorist acts.
Finally, the fourth argument seems a bit specious. Certainly, it is essential that Russia pay for the reconstruction of Ukraine and be obliged to do so by all means by democratic states. But it is doubtful that all the other possible plaintiffs, who also have a legitimate right to reparations, would monopolize all the available funds. In any case, it does not seem to be up to the challenge.
The great advantage of naming the Russian state—we consider this designation to be clearly preferable to that of “Russia”—is that it makes it possible to get to the bottom of the consequences of the massive crimes committed by Russia. It leads to the conclusion that a state and its officials have no immunity from terrorist groups if they commit acts of a similar nature.
Terrorism and the vagaries of communication
It is therefore possible to infer from this reasoning that the designation of Russia as a terrorist state might not bring anything radically new in theory in relation to the measures (various sanctions, diplomatic isolation, pressure on third countries that continue to have relations with this state) that democratic governments could take, but that in practice it would logically lead to a full extension of the measures aimed at placing Putin's regime in the ban of nations. The real potential benefit of such a labeling would be that it would remove from the Russian leadership and all the regime’s accomplices the immunity that symbolically equates them with representatives of a legitimate state. On the political and symbolic level, this is no small thing. The mere designation of the Russian leaders as responsible for the crime of aggression and many other crimes that are not subject to the statute of limitations and are justifiable by the International Criminal Court would undoubtedly have a less radical effect.
However, in the face of the massive crimes of this regime, anything that would still allow the Russian state to be linked to any form of normality would be a sin against the mind and against the rules that underlie international law and all civilization. The designation of terrorist, which is certainly striking for public opinion, would protect us from any temptation to relativism. This is, as I have already stressed, the major risk in the face of such crimes.
In terms of communication, this designation would have a major effect: to show that a State can sometimes behave, by the magnitude of its crimes, in a way that is even worse than a terrorist group whose horrific actions have gripped us. No doubt, in substance, the crimes of genocide and crimes against humanity would be enough to make us understand the abomination of the acts perpetrated by Putin and his henchmen. The term “terrorist” adds another dimension that insists on radicalism.
Certainly, many will be able, not without reason, to affirm that we must beware of the inflationary character of words in the age of social networks. By dint of inflating or magnifying everything, in virtue or in extreme evil, we can lose the true measure of things. But in the face of the actions perpetrated by Putin in Syria, Chechnya, Ukraine, Georgia, and Africa, the risk is not so much the excessiveness of words as the flattening of the facts they designate.
The decision on whether or not to describe the Russian state as a terrorist regime will first of all have a strategic impact, and this is what matters most. Faced with terrorist groups such as Al Qaeda or ISIS, we applied Article 5 of NATO in 2001—which was the only time, by the way—and we set up an international coalition. When you have a terrorist state in front of you, the consequences will have to be similar. It is clear that it will have to be fought until it is defeated and that it will not benefit from any accommodation whatsoever. There can be no limitation in the delivery of arms to Ukraine to enable it to drive the enemy out of its borders. And the same should apply to the other states that are under the yoke of this state: Belarus, Moldova with Transnistria, Syria and Georgia (regions still de facto occupied in Abkhazia and South Ossetia).
In short, the designation of an entity, state or other, as terrorist obliges us. It prevents a return to normalcy as long as the state is still capable of committing terrorist acts or likely to want to do so. This decision, therefore, will be taken primarily on the basis of political considerations, because it is politics, perhaps even more so in this area than in others, that is called upon to define the rules of applicable law.
In this case, it will first be a matter of bringing the law into line with the facts.