Ajay Kumar

| @AKlawyer | May 25,2018

Assassination attempt on Russian ‘double agent’ exposes huge lacuna in international jurisprudence in which only a political victory can be scored, and not quite a legal one.

In a throwback to the heydays of the Cold War, the attempted double murder of a former spy and his daughter in London has opened a can of jurisprudential worms. Sergei Skripal is a former soviet military intelligence officer who was a double agent for the United Kingdom during the Cold War. In 2004, he was arrested by Russian authorities, convicted of high treason. Russia swapped him in 2010 for Russian spies who were caught in the United Kingdom for espionage. On March 4 of this year, Skripal and his daughter were attacked by a nerve agent and remain in critical condition. The UK Prime Minster Theresa May made a statement in the House of Commons that British authorities thought that it was highly likely that Russia was behind the act.

In response, the UK has responded with a series of diplomatic measures and has termed the incident as an unlawful use of force. It has expelled Russian diplomats and Russia has retaliated by expelling British. The UK authorities claim that the nerve agent was of Russian origin. The first question though from a legal perspective would be whether Russia has breached the Chemical Weapons Convention, or not. The second question is that if there were Russian spies in its Embassy, does the UK have any recourse?

Defining chemical weapons

The Chemical Weapons Convention also known as the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) entered into force on April 28, 1997 after 65 states, including India, had ratified the Convention.

The Convention came into existence as the threat from chemical warfare became more and more pronounced in the latter half of the 20th century, with the collective decision to mutually obliterate the dangerous chemical weapons and regulate the use of toxic chemicals for very restricted purposes. As of 2016, the Convention has 192 parties, including Syria, which acceded in 2013 as part of its agreeing to destroy its chemical weapons stockpile under the Bashar al-Assad regime.

The CWC has certain definitions that become relevant for this examination.

Article II of the Convention deals with definitions. Article II (1) of the CWC defines “Chemical Weapons” as

“1. ‘Chemical Weapons’ means the following, together or separately:

(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;

(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices;

(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b).”

It further proceeds to define a “toxic chemical” as :

“2. “Toxic Chemical” means:

Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.

(For the purpose of implementing this Convention, toxic chemicals which have been identified for the application of verification measures are listed in Schedules contained in the Annex on Chemicals.)” 

Chemical weapons are banned for the same reason certain other types of weapons are banned. While States can have deadly weapons to use for attack and defence, they have sardonically concluded that some forms of killing are worse than others; chemical weapons being ones that fall into the later category.

The UK claims that the nerve agent used in this attack was a “Novichok agent”, produced by the then Soviet Union during the Cold War. They are organophosphorus compounds that cripple the nervous system. Russia (USSR) is the only country known to have developed and produced these agents.

International jurisdiction

The victims in question here were British citizens, so by extension the UK exercises protection over them. If a citizen is murdered by a civilian, it is merely murder. But when a citizen is murdered by agents of a foreign government, then such an attack can easily escalate to a full blown diplomatic row. The person in question here was someone Moscow had a reason to retaliate against, especially given President Vladimir Putin’s KGB roots. It is not that hard to go down the rabbit hole and guess that there would be a Russian at the end.

The CWC creates an administering authority, this authority being the Organisation for the Prohibition of Chemical Weapons (OPCW), based in The Hague, The Netherlands. Article XIV of the CWC allows the executive council of the OPCW to intervene and try and resolve these disputes. But unlike the Vienna Convention on Consular Relations (VCCR), the International Court of Justice (ICJ) does not have mandatory jurisdiction in cases where there is a dispute under the CWC. The Executive Council of the OPCW may refer a dispute or issue under the Convention to the Conference of the OPCW, and both the Conference and the Executive Council may, with the authorisation of the General Assembly, refer a question to the ICJ.

Article XII of the CWC speaks of enforcement measures to ensure compliance under the CWC. These measures though require the United Nations General Assembly and the UN Security Council to intervene, or the Conference to suspend the rights and privileges of a party under the Convention. But the fact that Russia has a veto in the Security Council means that legal remedies may be infructuous.

Simply put, there are no effective enforcement measures that UK can take in this situation except diplomatic measures. The lack of mandatory ICJ jurisdiction under the CWC puts this dispute outside the jurisdiction of the world court.

But if the UK can find a way to bring this dispute into the ambit of a breach of the VCCR, then the UK may have a cause of action to move the world court. For this, it has to prima facie establish that Russian diplomats or Embassy officials were involved in the attempted murder. The VCCPR protects the sanctity of diplomats, but it doesn’t allow a diplomat to do as they please when in another country.

Article 55 of the VCCR is very clear in this aspect. It states:

“1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.

  1. The consular premises shall not be used in any manner incompatible with the exercise of consular functions.
  2. The provisions of paragraph 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated, provided that the premises assigned to them are separate from those used by the consular post. In that event, the said offices shall not, for the purposes of the present Convention, be considered to form part of the consular premises.” [emphasis supplied]

Establishing consular breach

If Russia was using its Embassy to assist with the attack, or if the nerve agent was transported via consular courier, then the UK has a cause of action to take Russia to the ICJ. This may be the only viable way to get to the truth in this matter as the VCCR gives the ICJ mandatory jurisdiction over disputes that arise under it.

A dispute at the ICJ would empower the Court to collect evidence in this matter. Article 62 of the Rules of Court of the ICJ state the following:

“Article 62

  1. The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose.
  2. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings” [emphasis supplied].

The ICJ could request Russia to produce documents from its Embassy to the UK and may also call for witnesses who were at the Embassy to testify. While the VCCR recognises the inviolability of diplomats and a diplomatic premises, the question of whether the ICJ is bound to respect these while deciding a dispute is an open one. The VCCR in its wording only speaks of obligations of States and not organs such as the ICJ. Article 19 of the Statute of the ICJ states that the members of the Court would enjoy diplomatic immunity, but neither the Statute nor the VCCR is clear on whether the Court will have to respect the diplomatic immunity of consular offices while deciding a dispute.

Russia can bring a similar action against the UK under the VCCR if it alleges that the diplomats it expelled were spying for the UK. It can then use the case to show how it was not responsible for the attack by making this incident a sideshow to the actual proceedings.

Only a political win

A win by either party at the ICJ would be legally pointless as both possess a veto power to prevent the enforcement of any judgment of the Court. But it would be a political win, as they would finally be able to conclusively establish their case. A win that may also be achieved at the threshold stage if there was evidence that needed to be led if either party raised a jurisdictional challenge.

Both the UK and Russia can use the world court to extend their political game. But whether either party will do so, is a question of politics and not law.

Ajay Kumar is an Advocate practising at the Bombay High Court. He is currently retained by MZM Legal and may be reached at ajay.kumar@mzmlegal.com This article also contains research inputs by Simran Sharma, a 3rd Year law student at the Government Law College, Mumbai.

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