International Criminal Court (ICC)

The U.K.’s Opportunity to Use Lawfare in Response to the Salisbury Attack

By Michel Paradis
Thursday, March 15, 2018, 12:44 PM

The United Kingdom has already outlined economic and diplomatic sanctions against Russia in response to the chemical weapons attack in Salisbury, England. Prime Minister Theresa May suggested that covert action was also under consideration. And through its rhetoric, the U.K. government has even suggested that more overt uses of force may be an option. But what if the U.K. also looked to the institutions of legal accountability, including the International Court of Justice and the International Criminal Court? While admittedly imperfect institutions, the ICJ or the ICC could afford the U.K. an alternative means by which to seek accountability by credibly exposing those responsible, whilst staying short of outright war.

The Attack

The unfolding crisis between the U.K. and Russia traces back to March 4, when Rick Bailey, a local police sergeant, responded to a call from the Maltings, a middle-class shopping center in the English town of Salisbury. Once on the scene, Bailey found Sergei Skripal and his daughter unconscious and slumped on a bench. Bailey brought them to Salisbury District Hospital, where they were admitted to the intensive care unit. But, Bailey soon found himself admitted to the intensive care unit after being diagnosed with exposure to a Novichok-class nerve agent, a poison first developed by the Russian government in the 1970s. Someone had apparently poisoned Skripal and his daughter with a Novichok agent—much as the North Korean government is believed to have poisoned Kim Jong Un’s half-brother with a VX nerve agent in a Malaysian airport last year.

That Skripal might be the victim of foul play was not surprising. He was a former double-agent whom the Russians convicted of treason in 2006 and transferred to the U.K. in 2010 as part of a prisoner trade in 2010. In exchange for Skripal and two other convicted spies, the United States released ten Russian sleeper agents, whose saga would go on to inspire the TV show, “The Americans.”

What is surprising is that the Russian government would carry out a chemical weapons attack on British soil. These are not normal spy games. Skripal and his daughter reportedly remain in critical condition and at least twenty-one bystanders, including Sgt. Bailey, have been hospitalized for possible exposure. The only thing differentiating this chemical attack from a drone strike on The Maltings shopping center is its insidiousness.

The Fight over Responsibility

The details of how the attack were carried out are slowly being revealed through continued reporting. But on Saturday morning, the Russian Embassy in London ominously tweeted:

For those less familiar with the objects of this instance of Russian gallows humor, Alexander Perepilichny was a Russian businessman who had been cooperating in a corruption investigation against Russian government officials. He died while jogging near his London home in 2012, of an apparent heart attack at the conspicuous age of 43. Alexander Litvinenko was a Russian defector from the FSB, also living in London. He was assassinated in 2006 by a dose of polonium, the radiological signature of which was traced back across the continent to Russia. And Boris Berezovsky was a Russian oligarch who was found hanged in his home in 2013 under suspicious circumstances. As it happens, Nikolai Glushkov, an old friend of Berezovsky, was also reportedly found dead in his London home on Monday, though the cause of death is not yet public.

On March 12, Prime Minister May addressed Parliament and announced that the chemical used in the Salisbury attack was, in fact, of the Novichok class. That pointed, she said, definitively to the Russian government. She demanded that Russia provide a complete disclosure of its Novichok program to the Organization for the Prohibition of Chemical Weapons. And after citing “Russia’s record of conducting state-sponsored assassinations,” she stated that:

[T]he Government has concluded that it is highly likely that Russia was responsible for what happened in Salisbury on the fourth of March. Either this was a direct act by the Russian State against our country. Or the Russian government lost control of this potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.

May then announced that the British government had issued an ultimatum, demanding that the Russian government account for “which of these two possibilities it is” by the end of the day on Tuesday, March 13. “Should there be no credible response,” she continued, “we will conclude that this action amounts to an unlawful use of force by the Russian State against the United Kingdom.”

As Matt Tait wrote for Lawfare the day after May’s speech, the prime minister did not leave herself much room to maneuver. This was, in his words, “the diplomatic equivalent of maximum volume,” implying that Russia had acted in violation of Article 2(4) of the U.N. Charter's prohibition on the use of force. And while, as Ashley Deeks noted later in the day, May stopped short of declaring Russia's actions an "armed attack"—the additional step required to trigger both the U.K. right to use force in self-defense under Article 51 of the U.N. Charter and the collective self-defense commitment of Article 5 of the NATO treaty—she has not ruled that possibility out. She was, in short, using the language of war or something close to it. And as Deeks concluded, the only current path to de-escalation is for Russia to in effect apologize and “the likelihood of that happening seems remote.”

Indeed, it was so remote that by the evening of March 13, the Russian Embassy in London went on a bizarrely illustrated tweetstorm, objecting that “the actions of the UK authorities are a clear provocation and the Russian Federation was not involved in the incident that took place in Salisbury on 4 March, 2018” and that “Moscow will not respond to London’s ultimatum until it receives samples of the chemical substance to which the UK investigators are referring.” Over an image with the words “Fake News,” the Russian Embassy tweeted, “The incident appears to be yet another crooked attempt by the UK authorities to discredit Russia.” And with an even more bizarre clip art image illustrating Newton’s Third Law of Motion, the Russian Embassy tweeted, “Any threat to take ‘punitive’ measures against Russia will meet with a response. The British side should be aware of that.”

On the morning of Wednesday, March 14, May returned to the floor of Parliament to condemn the Russian government’s “complete disdain for the gravity of these events.” She continued:

[T]here is no alternative conclusion other than that the Russian State was culpable for the attempted murder of Mr. Skripal and his daughter—and for threatening the lives of other British citizens in Salisbury, including Detective Sergeant Nick Bailey. This represents an unlawful use of force by the Russian State against the United Kingdom.

May then announced a combination of economic and diplomatic sanctions. Parliament, she said, would hasten the passage of a targeted sanctions regime akin to the Magnitsky Act, which was reportedly already under consideration by the Foreign Office. The U.K. government would immediately expel twenty-three Russian diplomats believed to be conducting espionage. High-level bilateral contacts between the two countries have been terminated—although later the U.K. clarified that it would continue diplomatic relations with Russia at the United Nations—including the attendance of the Royal Family at the World Cup in Moscow this summer. And May concluded by suggesting that other measures were under consideration “that cannot be shared publicly for reasons of National Security.”

At a tense meeting of the U.N. Security Council held later that day, the U.K. representative read a lengthy j'accuse, linking the Salisbury attack to the Russian government's support of the Assad regime's use of chemical weapons in Syria. Despite some early signs of equivocation by the Trump Administration, U.N. Ambassador Nikki Haley put the United States' full support behind the U.K. And on March 15, the governments of the United Kingdom, the United States, Germany and France issued a joint communiqué to "abhor the attack that took place against Sergei and Yulia Skripal in Salisbury, UK, on 4 March 2018." Without specifically saying the words "armed attack," the joint communiqué may have been intended to rattle the NATO Article 5 saber, condemning the Russian government for "the first offensive use of a nerve agent in Europe since the Second World War. It is an assault on UK sovereignty and any such use by a State party is a clear violation of the Chemical Weapons Convention and a breach of international law. It threatens the security of us all."

The Limits of Economic and Diplomatic Sanctions

This package of economic and diplomatic sanctions is problematic. Economic sanctions akin to the Magnitsky Act may be double edged for the British. On the one hand, Russian money has poured in the London property market over the past decade, and over the past year, at a higher clip. That arguably gives the U.K. the leverage to implement targeted sanctions. But the U.K.’s housing market is facing a downturn and the nation’s broader economic outlook remains uncertain as a result of Brexit. Magnitsky Act-style sanctions in the U.K. are likely to hit London’s high-end real estate market at a time when it is one of the nation’s few economic bright spots.

Diplomatic sanctions may offer even less. Four years after the annexation of Crimea, the Russian Federation has proven itself remarkably resistant to diplomatic ostracism. If Russian analysts are right, diplomatic isolation perversely strengthens President Vladimir Putin, who uses the exploitation of grievance against the West as a primary source of domestic political strength.

In the emergency U.N. Security Council meeting called on Wednesday afternoon, Russia’s Permanent Representative, Vasily Nebenzya, was a mascot for this posture of defiance. Responding to the UK’s insistence that the Salisbury attack constituted a violation of Article 2(4) of the U.N. Charter, Nebenzaya undertook in a lengthy and often discursive invective against the U.K. for what he described as the U.K.’s “colonial habits.” “We do not speak the language of ultimatums,” he said with brio. Nebenzya asserted that the U.K.’s ultimatum was itself a violation of Article 2(4), he suggested that the UK was “the most probable source” of the nerve agent used, and he speculated that U.K. officials were using the Salisbury Attack as “propaganda to influence the public which is very easy to influence and not well educated.” Russia, he explained, was the real victim.

The Possibility of Seeking Accountability through Legal Institutions

The shortcomings of economic and diplomatic sanctions leave the British government in a quandary if it is reluctant to resort to more direct uses of force. For that reason, though not part of the plan of action Prime Minister May outlined in Parliament, legal institutions could play an important role in the U.K.’s response to the attack. Scotland Yard is investigating the Salisbury Attack as a criminal matter. As it did with the polonium poisoning of Alexander Litvinenko, it will likely make public findings and issue arrest warrants for those it determines were directly involved. If the Litvinenko case is any guide, however, Russia is generally unimpressed with arrest warrants. As President Vladimir Putin told Megyn Kelly last week in response to Robert Mueller’s indictment of thirteen Russians in connection with L’Affaire Russe, “Russia does not extradite its citizens to anyone.”

At the international level, the United Kingdom could seek redress in the International Court of Justice, whose jurisdiction extends to disputes between U.N. member states. The Ukrainian government has attempted to do this over the annexation of Crimea as well as Russia’s fomenting an armed insurrection in eastern Ukraine. The Georgian government tried bringing a similar case against Russia following the invasion of South Ossetia in 2008. But that case was dismissed in 2011 on the grounds that Georgia had not engaged in sufficient negotiations to resolve their differences under the relevant treaty before invoking the jurisdiction of the ICJ.

The U.K.’s bases to call Russia to account before the ICJ over the Salisbury attack are legion: the breach of the U.K.’s sovereignty under the UN Charter, the Chemical Weapons Convention, and the Convention for the Suppression of the Financing of Terrorism, to name just a few. The ICJ, however, is notoriously slow and, as Georgia learned, full of procedural pitfalls.
The Russians are already previewing the kind of arguments they would be likely make in any ICJ litigation. At the U.N. Security Council, U.N. Representative Nebenzaya accused the U.K. government of failing to strictly comply with the terms of Article IX of the Chemical Weapons Convention, which specifies a detailed protocol for coordination and cooperation to resolve possible violations of the Convention. Russia perversely claims, in other words, that it is the U.K. that is in violation of the Chemical Weapons Convention. Pursuing any claim in the ICJ is therefore likely to entail years of this kind of hyper-technical litigation over questions of treaty protocol long before the merits of the Russian government’s alleged culpability for the Salisbury Attack are considered.

Another alternative is the International Criminal Court. It is not an obvious choice, but as a state party, the U.K. can refer the case to the ICC under Article 14 of the Rome Statute, given that the attack occurred on its territory. Under the prevailing interpretation of international humanitarian law, captured most famously in Antonio Cassese’s 1995 opinion in the Tadic case at the International Criminal Tribunal for the former Yugoslavia, the Salisbury attack was an act of international armed conflict between the U.K. and Russia. And under Article 8(2)(b)(xvii), the ICC has jurisdiction to prosecute the use of poisoned weapons as a war crime when done in the context of and associated with an international armed conflict. There is a compelling case therefore that the Russians’ use of a Novichok class nerve agent, like the North Koreans’ use of VX in Malaysia, was a war crime.

Pursuing the case against Skripal’s assassins in the ICC could offer two benefits. The first is that it would limit the Russian government’s ability to gaslight the public over Scotland Yard’s investigation with claims of “fake news.” In addition to revealing the disturbing fact that diplomacy by Twitter trolling is new norm of international relations, the Russian Embassy’s tweetstorm betrayed a familiar strategy: deny, threaten, and foster “false-flag” conspiracy theories. This was then put on full display at the Security Council and in the coverage by Russian state media following Prime Minister May’s sanctions announcement. If nothing else, pursuing the case through the organs of the ICC offers British investigators the benefit of reasonably credible third-party validation.

Charges before the ICC also carry a stigma that domestic charges would not. There is no reason to believe that the Russian government is going to be any more willing to extradite suspects to The Hague as it is to London or the District of Columbia. But President Putin’s promise to “never” extradite a Russian citizen is delivered with swagger because it plays in to his overarching worldview that domestic law is domestic politics by other means. War criminality, by contrast, transcends boundaries. And unlike interstate actions in the ICJ, which are confined to the abstract legal doctrines associated with state responsibility, ICC prosecutions are personal. Like the Magnitsky Act, they foreground the specific perpetrator’s international pariah status.

Lest there be any doubt, the ICC path is also cluttered with obstacles. Chief among them, the ICC is also notoriously slow, and the ICC Prosecutor could be persuaded to decline the case on the ground that this single attack does not constitute one of “the most serious crimes of concern to the international community as a whole,” as specified by Article 5 of the Rome Statute. In other words, a single attack on a single man and his daughter is too insignificant compared to the grand-scale systematic international crimes the ICC ordinarily investigates.

Such an argument, of course, ignores the fact that this would be the first war-crimes case to reach the court that arose out of an international armed conflict between two of the permanent members of the Security Council. As the emergency Security Council meeting made clear, the Salisbury attack is of major concern for the international community. And, if nothing else, it is yet another recent example of the weakening of the previously sturdy norm against the use of chemical weapons.

But the limited scale of the Salisbury attack could be a feature rather than a bug. One reason the ICC has floundered is that it is often forced to be the referee of entire armed conflicts. Some span decades. Genocides and war crimes committed on a mass scale are, of course, “the most serious.” But they are also difficult to investigate and even more difficult to litigate as criminal trials. A focused inquiry into the Salisbury attack, particularly if supported by the investigative resources of Scotland Yard, could potentially avoid some familiar pitfalls.

That said, if the Special Tribunal for Lebanon is any guide, one should not underestimate the difficulty of prosecuting even a single assassination case before an international tribunal in The Hague. The Special Tribunal’s flaws are in some respects sui generis, not the least because of its hybrid character. But it is a cautionary tale if the objective is to actually put Skripal’s putative assassins on trial.

But the use of legal institutions nevertheless offers an imperfect but viable means by which the U.K. government can respond to the Salisbury attack while avoiding the kind of escalatory cycle that followed the assassination of Franz Ferdinand. Despite the bellicose rhetoric, it is clear that the U.K. government is not eager for the prospect of an actual war with Russia. Before the Security Council, the U.K.’s representative was emphatic in accusing the Russian government of violating Article 2(4). But he stopped short of expressly invoking Chapter VII, which would have signaled that UK was contemplating the use of retaliatory force. Legal institutions, including international legal institutions, offer the U.K. government a means by which to assert its values, pursue accountability, and blunt the Russian capacity to sow disinformation and play the victim. They could, in a constructive sense, be a good example of lawfare.

 

Editor's Note: On March 15, this post was modified to both reflect developments in the news and to clarify a characterization of a previous article in Lawfare, authored by Ashley Deeks.