International happenings of the last year beg a number of questions about what qualifies a state as a sponsor of terrorism. Russia’s support for the Assad regime; Cuba’s removal from the United States designation of state sponsors of terrorism; Pakistan’s ongoing harboring of terrorist groups, including the Haqqani network–These events point to the ambiguity of the designation of a state as a sponsor of terrorism. For work, I did a little research on how the United States designates state sponsors of terrorism. The information didn’t end up being used, but I think it’s useful for highlighting how political such a designation is.

Ultimately, I come to the conclusion that a fuzzy logic is more appropriate for assessing state sponsorship of terrorism. As opposed to a country either being or not being a state sponsor of terrorism (Boolean logic), its level of sponsorship should be assessed on a spectrum. In particular, one should consider the level of control the country has (the level of governance a country has over territories harboring terrorists), the frequency of sponsorship (i.e., how often and how long ago the event occurred), and the threat potential of sponsorship (i.e., the size of the effect of actively or passively tolerating terrorist groups), among other factors.

1) How the US designates a state sponsor

The first place to look is the United States’ designation of terrorist-sponsoring states, as determined by the Secretary of State. Currently, the United States recognizes Iran, Sudan, and Syria as “[c]ountries determined […] to have repeatedly provided support for acts of international terrorism.”[1]

This determination is pursuant to three laws: Section 6(j) of the Export Administration Act, which states that support for acts of international terrorism includes the recurring use of the land, waters, and airspace of the country as a sanctuary for terrorists (for training, financing, and recruitment) or as a transit point and that the government must also expressly consent to, or with knowledge, allow, tolerate, or disregard such use;[2] Section 40 of the Arms Export Control Act, which states that countries qualify if they willfully aid or abet the international proliferation of nuclear explosive devices, efforts to acquire unsafeguarded nuclear material, or efforts to acquire chemical, biological, or radiological weapons;[3] and Section 620A of the Foreign Assistance Act, which does not seem to provide additional criteria.[4]

This appears to be a pretty ambiguous set of criteria. Thus, I turn to two examples of countries designated as states sponsoring terrorism either at present or in the past, according to the Country Reports on Terrorism 2014 (published in June 2015).[5]

• North Korea[6]: North Korea was removed from the U.S. list of states sponsoring terrorism. The report highlights that DPRK is not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987. In October 2008, the United States rescinded the designation as a state sponsor in accordance with U.S. law, including a certification that the DPRK had not provided support for international terrorism during the preceding six-month period and the assurance that it would not support acts of international terrorism in the future.

The timing for the decision to remove DPRK seems at first glance arbitrary, but in fact it was part of the Six Party talks to end the country’s nuclear program.[7] This example highlights the potential political opportunism associated with removing (and potentially adding) states from the terrorism sponsor list.

• Iran[8]: Iran remains on the sponsor list. The report describes Iran’s connection with Lebanese Hizballah, Iraqi Shia militia groups (in response to ISIL), and Palestinian terrorist groups, among others. The report also states that Iran remains a state of nuclear proliferation concern (interesting to see if that will be the case in the 2015 edition).

The U.S. Department of Treasury Office of Foreign Assets Control (OFAC) also has its Terrorism List Governments Sanctions Regulations.[9] It is a criminal offense for U.S. persons, except in consultation with authorities, to engage in financial transactions with the governments of countries designated under section 6(j) of the Export Administration Act of 1979 (described above). According to the report, these countries include Cuba, Iran, Libya, North Korea, Sudan, and Syria (this appears to be out of date, despite it being labelled as 2015; I assume this now matches the State Department’s list of Iran, Sudan, and Syria). OFAC also provides a separate report on Palestine, permitting transactions “in light of the appointment of Prime Minister Salam Fayyad and a slate of ministers who are not affiliated with the designated terrorist group Hamas.”[10]

Taken together, the criteria by which United States authorities judge another country to sponsor terrorism include the following:

• Providing repeated support for acts of international terrorism;
• Allowing terrorists use of the country’s land, water, and airspace to carry out terrorist activities, including training, financing, and recruitment with expressed consent or through knowledge and inaction;
• Allowing terrorists use of the country’s land, water, and airspace as a transit point with expressed consent or through knowledge and inaction;
• Aiding in the international proliferation of nuclear explosive devices;
• Aiding in the acquisition of unsafeguarded special nuclear material; AND/OR
• Aiding in the use, development, production, stockpiling, or acquisition of chemical, biological, or radiological weapons.

In contrast, the President can remove a country from this list by submitting a report to Congress and certifying that:

• There has been a fundamental change in the leadership and policies of the government, the government is not supporting acts of international terrorism, and the government has provided assurances that it will not support such acts in the future (e.g. Palestine); OR
• The government has not provided any support for international terrorism during the preceding six-month period and provided assurances that that it will not support such acts in the future (e.g. North Korea and Cuba this year[11]).

Finally, I think Cuba would be an interesting case study for examining this issue. As we know, earlier this year, the country was removed from the list of states sponsoring terrorism by the President. It is worthwhile to compare the Secretary of State’s reports before and after this event took place. By doing so, we can examine the extent to which the State Department is engaging in confirmation bias (text from both reports available in appendix).

As Prof. Dennis Jett explains in an article in the Huffington Post,[12] Cuba was added to the list by Reagan to gain favor with Cuban exiles. The article also mentions that when Cuba was added, Iraq was taken off to allow American companies to sell arms to the nation. Later, Iraq was put back on the list by President George H.W. Bush as punishment for its invasion of Kuwait and removed again by George W. Bush following the invasion of Iraq.

International Context                            

As of 2012, there were 13 international conventions and protocols that required state parties to criminalize a particular manifestation of international terrorism under domestic law, cooperate in the prevention of that terrorist act, and take action to ensure that offenders are held responsible for their crime. Collectively, these conventions are referred to in the article cited as the ‘Terrorism Suppression Conventions’ (TSCs). [13] These TSCs are widely ratified. A state could potentially be held under accomplice liability in the ICJ for individual acts of terror; however, as of 2012, the International Court of Justice had yet to decide on a dispute regarding a state’s involvement in acts of international terrorism on the basis of the TSCs.[14] Still, the Bosnia Genocide case cited in the article, which concerns the state’s responsibility for acts of genocide, has established a basis for the Court’s jurisdiction in cases of state-sponsored or supported terrorism. The decision suggests that the two types of obligations regarding terrorism, “one prohibiting the state itself from engaging in terrorism, the other regarding the state as the enforcer of prohibitions imposed against non-state actors,” overlap with a state’s obligation to protect.[15]

2) How to assess areas that are essentially ungoverned:

In the United States’ Country Reports on Terrorism 2014, terrorist safe havens include “ungoverned, under-governed, or illgoverned physical areas” where terrorists can “organize, plan, raise funds, communicate, recruit, train, transit, and operate in relative security because of inadequate governance capacity, political will, or both.” The report goes on to say that the term “terrorist sanctuary” or “sanctuary” (not to be confused with the term sanctuary as used in Section 6(j) of the Export Administration Act above) excludes the territory from being subjected to the determination as state sponsors of terrorism.[16]

The report points to numerous examples of countries or areas with terrorist safe havens that are not considered state-sponsoring countries, including Somalia, the Trans-Sahara, Mali, the Southern Philippines, Lebanon, Libya, Egypt, Yemen, Afghanistan, Pakistan and Venezuela. The report consistently highlights areas of weakness and then points to areas where the government is cooperating with the U.S. government (the only exception I found being Venezuela). This seems to suggest that an informal criterion, in addition to those stated above, for not being considered a state sponsoring terrorism (simply a state with terrorist safe havens) is cooperation with the United States. I point to four examples below:

• Somalia
  • Area of weakness: “Permissive environments in southern Somalia, many devoid of adequate and consistent security, governance, and services, allowed alShabaab the time and space to regroup and launch attacks against harder targets and government facilities in Mogadishu and softer targets across the border in Kenya.”
  • Example of U.S. cooperation: “Porous borders and ungoverned spaces remained a significant challenge for the Federal Government of Somalia and AMISOM, although both remained committed to countering terrorism in collaboration with international partners, including the United States.”
• Egypt
  • Area of weakness: “Portions of Egypt’s Sinai region were a safe haven for terrorist organizations in 2014. The Egyptian government continued its extensive security campaign focused on the North Sinai region, which was launched in September 2013 with the aim of eliminating terrorists and securing the region. The North Sinai remained closed off to tourists, most journalists, and NGO workers, which limited independent means of verifying government-published information on the success of the military’s operations.”
  • Example of U.S. cooperation: “Through its Export Control and Related Border Security Program, the United States is working with the Government of Egypt to enhance Egypt’s border security capabilities through the provision of land and maritime border enforcement and targeting and risk management training for Egyptian Customs, Ministry of Defense, and Ministry of Foreign Affairs officials”
• Pakistan/Afghanistan
  • Area of weakness: “The border region of Afghanistan and Pakistan is an under-governed area which hosts terrorist cells active in both countries. The Government of Afghanistan has struggled to assert control over this remote terrain where the population is largely detached from national institutions.
  • Example of U.S. cooperation: “Pakistan is a constructive and active participant in the Nuclear Security Summit process and the Global Initiative to Combat Nuclear Terrorism, and has worked to strengthen its strategic trade controls.” “Afghanistan generally cooperates with U.S. counterterrorism efforts. Since President Ghani’s election, he has actively pursued cross-border security cooperation with the Government of Pakistan, including the prospect of joint operations to reduce safe havens on both sides of the border.”

• Venezuela
  • Full text: “Venezuela’s porous border with Colombia has made the country attractive to the Revolutionary Armed Forces of Colombia and the National Liberation Army, who use it to cross in and out of its territory. Jose Ignacio De Juana Chaos, an ETA terrorist whom authorities lost track of in 2008 after he was sentenced to 3,000 years in prison in Spain for the murders of 25 people, reportedly resurfaced in Venezuela after being sighted in a Caracas shopping mall in May, according to media reports. In June, Maduro said the Venezuelan government did not have enough information to corroborate the reports.”

Case Study—Pakistan

Pakistan is currently not considered a state sponsor of terrorism by the United States, only a terrorist safe haven.

Daniel Bynam, in his 2005 article Passive Sponsors of Terrorism, refers to Pakistan as a “passive” sponsor of terrorism. He argues that they assisted al Qaeda by allowing other militants it backed in Kashmir and Afghanistan to work with the organization, providing additional manpower and freedom of action.[17] He asserts that passive support arises from “domestic sympathy for the group; a sense that the group poses little threat to the host government itself; and relatively low costs of inaction, or even indirect benefits.”[18] He argues that we should rethink the hard line between states sponsoring terrorism and states not sponsoring terrorism and expand both direct policy and indirect forms of intervention.

Likewise, Stephen Collins argues that “the threat potential of the support sponsors can provide” should also be considered when assessing state sponsorship of terrorism.[19] By this measure, during the 1990s, Pakistan was “the single most consequential sponsor of jihadism in Central Asia and, by extension, in the world.”[20] Although the Taliban was the government that provided safe haven to al Qaeda, he argues that Pakistan created and sustained the Taliban. Even today, Collins asserts that Pakistan is perhaps the greatest concern with respect to “the nexus of nuclear weapons and terrorism.”[21] Pakistan either has been complicit in nuclear proliferation or has poor control and oversight; regardless, the country’s current situation should be of the highest concern.

The situation of Pakistan suggests that a fuzzy logic is perhaps more appropriate for assessing state sponsorship of terrorism. That is to say, the situation is rarely so clear that a state either completely supports terrorism or completely does not support terrorism. In fact, in one of the largest cases in ICJ history, the court found the United States guilty of training, arming, equipping, financing and supplying contra forces against the people of Nicaragua in what could easily be considered an act of terror.[22] When assessing sponsorship, one should consider the level of control the country has (the level of governance a country has of territories harboring terrorists), the frequency of sponsorship (i.e., how often and how long ago the event occurred), and the threat potential of sponsorship (i.e., the size of the effect of actively or passively tolerating terrorist groups), among other factors.

[1] State Sponsors of Terrorism, US Department of State. Accessed 9/16/2015 http://www.state.gov/j/ct/list/c14151.htm

[2] Section 2405 Foreign Policy Controls, Cornell University Law School https://www.law.cornell.edu/uscode/html/uscode50a/usc_sec_50a_00002405—-000-.html

[3] Prohibited Transactions by United States Government, Cornell University Law School, https://www.law.cornell.edu/uscode/text/22/2780

[4] Legislation on Foreign Relations USAID, https://www.usaid.gov/sites/default/files/documents/1868/faa.pdf

[5] http://www.state.gov/documents/organization/239631.pdf

[6] Ibid, 66

[7] Terence Roehrig, North Korea and the US State Sponsor List, Pacific Focus, 24(1) http://onlinelibrary.wiley.com/doi/10.1111/j.1976-5118.2009.01018.x/pdf

[8] Section 2405 Foreign Policy Controls, http://www.state.gov/documents/organization/239631.pdf, 285-286

[9] What You Need to Know About U.S., Sanctions, Office of Foreign Assets Control, http://www.treasury.gov/resource-center/sanctions/Programs/Documents/terror.pdf

[10] Guidelines on Transactions with the Palestinian Authority, Office of Foreign Assets Control, http://www.treasury.gov/resource-center/sanctions/Programs/Documents/pal_guide.pdf

[11] Cuba: Implementing Rescission of State Sponsor of Terrorism, Federal Register. https://www.federalregister.gov/articles/2015/07/22/2015-17981/cuba-implementing-rescission-of-state-sponsor-of-terrorism-designation

[12] Dennis Jett. Why the State of Sponsors of Terrorism List Has Little to Do with Terrorism, Huffington Post, http://www.huffingtonpost.com/dennis-jett/state-sponsors-of-terrorism-list_b_7658880.html

[13] Kimberley N. Trapp. Holding States Responsible for Terrorism before the International Court of Justice, Journal of international Dispute Settlement 3(2), 2012 http://jids.oxfordjournals.org/content/3/2/279.full.pdf+html

[14] Ibid 295

[15] Ibid 286

[16] Full text: “As defined by section 2656f(d) of Title 22 of the U.S. Code, the term ‘terrorist sanctuary’ or ‘sanctuary’ excludes the territory of a country the government of which is subject to a determination under section 2405(j)(1)(A) of the Appendix to Title 50; section 2371(a) of Title 22; or section 2780(d) of Title 22– the state sponsors of terrorism.”

[17] Daniel Byman, Passive Sponsors of Terrorism, Survival, 47:4 2005 http://www.tandfonline.com/doi/pdf/10.1080/00396330500433399, 125

[18] Ibid. 132

[19] Stephen Collins, State-sponsored Terrorism: In Decline Yet Still a Potent Threat, Politics & Policy, http://onlinelibrary.wiley.com/doi/10.1111/polp.12061/pdf, 1

[20] Ibid. 142

[21] Ibid. 152

[22] CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA) (MERITS), International Court of Justice, http://www.icj-cij.org/docket/?sum=367&p1=3&p2=3&case=70&p3=5