Spy poisoning: The ‘case’ against Russia

In November 2016, Russia withdrew from the International Criminal Court treaty.[1] It would appear then that there is no way to put Russian agents or President Putin himself on trial in that court for the assassination attempt on Sergei Skripal with a military grade nerve agent.

And still there is seemingly no end of Western apologists useful to the authoritarian and dictatorial Russian State.  Some (lawyers included) like to make the argument that ‘evidence is lacking’ to support the unprecedented Western allied decision to expel Russian diplomats in response to the assassination attempt, as though there were some criminal trial currently on foot which requires proof beyond reasonable doubt. There is no such trial, and there is not likely to be.  Some apologists, laughably, point to a lack of any motive on the part of Russia. 

Those apologists conveniently ignore the fact that the situation is now operating under the umbrella of Realpolitik, and that no one has been sentenced to prison. They utilise logical fallacies in the nature of ‘whataboutery’ in an attempt to divert attention away from Russia, and point instead to vague allegations of bad behaviour by the West in the misplaced belief that it will bolster their argument.

However, even if there were a criminal trial against Russian agents or even Putin himself, the case against Russia is extremely strong, even without considering sensitive government information from intelligence agencies.

It is surely beyond any reasonable doubt that a strong enough 'case' exists to act diplomatically and expel Russian diplomats from Western democracies endeavouring to abide by the Rule of Law.

On 5 March 2018 UK media reported[2] that 66 year old Sergei Skripal and his 33 year old daughter Yulia had been exposed to a “mysterious substance” as Sergei sat on a bench in the centre of Salisbury.

On 8 March 2018 Scotland Yard announced that detectives believed that Sergei and Yulia Skripal were specifically and deliberately targeted, adding that they remained critically ill in hospital along with the “seriously ill” police officer who first attended the scene. He said that scientists had identified the mysterious substance as a “nerve agent”.[3]

Sergei Skripal had been convicted in Russia on charges of spying for Britain and sentenced in 2006 to 13 years in prison. He was freed in 2010 as part of a Cold War-style spy swap in Vienna which followed the exposure of a ring of Russian sleeper agents in the United States.[4]

Russian authorities had claimed that Skripal provided the identities of Russian undercover operatives to the British in return for money.[5] At the time of Skripal's trial, the Russian media quoted the FSB domestic security agency as saying that the damage from his activities could be compared to harm inflicted by Oleg Penkovsky, a GRU colonel who spied for the United States and Britain. Penkovsky was executed in 1963.[6]

In January 2016, Sir Robert Owen - a former High Court Judge - delivered his report to the UK Secretary of State on the death of another former Russian spy, Alexander Litvinenko, concluding that Russian President Vladimir Putin probably approved the assassination carried out by the country's security services.[7]

Sir Robert noted in his report[8] that the inquest proceedings into Mr Litvinenko’s death did not allow secret or closed sessions, but that government material was so sensitive that it could not be adduced in any form of public or open session, and so was excluded “for good reason” from the inquest proceedings under the legal principle known as public interest immunity. As a result, Sir Robert asked the Home Secretary to establish a Public Inquiry to replace the inquest, where such sensitive evidence could be heard in closed session.

After considering the sensitive government material and other evidence, Sir Robert identified[9] several reasons why organisations and individuals within the Russian State might have wished to target and murder Mr Litvinenko. First among those reasons was that Mr Litvinenko was regarded as having betrayed the FSB (Russian Federal Security Service), including by publishing two books accusing the FSB of responsibility for a 1999 apartment bombing and of collusion in organised crime. Second was that the FSB knew Mr Litvinenko was working for British Intelligence.

Substantially similar facts exist in relation to Sergei Skripal, and it follows that at least those motives for his attempted assassination also exist.  The Financial Times opined on 10 March 2018[*] that "The most plausible theory to emerge so far is that Mr Skripal was the victim of a revenge attack for handing over Russian secrets to the British."  

Shortly after the attack on the Skripals, the Defence Science and Technology Laboratory (DSTL) at Porton Down analysed the “mysterious substance”. DSTL is part of the UK’s investigation into the attack, which is being led by Scotland Yard’s counter-terrorism command, with significant help from the UK’s intelligence agencies.[10] On 8 March 2018, the Guardian reported that:

“The medical and chemical evidence and the effects on the victims point to a sophisticated nerve toxin ...Chemical weapons experts said it was almost impossible to make nerve agents without training and dismissed the theory that an amateur could have assembled the substance using materials obtained from the internet. “This needs expertise and a special place to make it or you will kill yourself. It’s only a small amount, but you don’t make this in your kitchen,” one said, speaking on condition of anonymity.”[11]

On 4 April 2018, the Guardian reported[12] that Gary Aitkenhead, the chief executive of DSTL, said of the poison “We were able to identify it as novichok, to identify it was a military-grade nerve agent”, which could probably be deployed only by a nation state.

On 19 March 2018, the BBC reported[13] that Novichok’s existence was revealed by chemist Dr Vil Mirzayanov in the 1990s, via Russian media. He later defected to the US, where he published the chemical formula in his book, State Secrets. According to Dr Mirzayanov, the Soviets used their largest chemical weapons plant in Uzbekistan to produce and test small batches of Novichok. These nerve agents were designed to escape detection by international inspectors. The report also stated that the UK foreign office said it had information indicating that "within the last decade, Russia has investigated ways of delivering nerve agents likely for assassination. Part of this programme has involved producing and stockpiling quantities of novichok.”

On 15 March 2018 Philip Stephens opined in the Financial Times[14] that:

"Sadly, Mr Putin has apologists in high places. Donald Trump, the US president, still refuses to admit the attempt to subvert US democracy. Populists on the far-right and left in Europe are seduced by Russian authoritarianism. Presented with evidence of state-sponsored terrorism and chemical weapons, Jeremy Corbyn, the far-left leader of Britain’s opposition Labour party, still struggled to condemn Mr Putin."

The philosopher John Gray writing in the New Statesman on 8 May 2017[15] said:

"Russia remains perennially fascinating. But those on the left who defend Vladimir Putin do so more through hatred of their own societies than any virtues they discern in the regime over which he presides..."

A key aspect of the rules-based international order is the development of international law.[**]  Upholding and promoting the Rule of Law requires us to care about it enough not to allow ourselves to become useful idiots to autocratic and dictatorial regimes.  

In his 2016 BBC Reith Lectures, Professor Appiah, professor of philosophy and law at New York University Law School said[16]:

"Values aren’t a birthright: you need to keep caring about them... A culture of liberty, tolerance, and rational inquiry: that would be a good idea. But these values represent choices to make, not tracks laid down by a Western destiny..."

The Law Council of Australia acknowledges that its role includes the promotion of the administration of justice.  As officers of the Court, lawyers and barristers are obliged to serve the community in the administration of justice, including by speaking out for unpopular causes and challenging perceived abuses of power.  To my mind, that includes not allowing ourselves to become, in our capacities as lawyers and barristers, useful apologists for regimes like Russia.

Garth O’Rafferty

Salamanca Chambers

6 April 2018

 

** https://www.unaa.org.au/wp-content/uploads/2015/07/UNAA_RulesBasedOrder_ARTweb3.pdf  (page 7)

* https://www.ft.com/content/46eb6414-22f8-11e8-ae48-60d3531b7d11

1 http://www.bbc.com/news/world-europe-38005282

2 https://www.telegraph.co.uk/news/2018/03/05/alleged-former-russian-spy-critically-exposure-unknown- substance/

3 https://www.theguardian.com/uk-news/2018/mar/07/russian-spy-police-appeal-for-witnesses-as-cobra- meeting-takes-place

4 http://www.abc.net.au/news/2018-03-06/ex-russian-spy-critically-ill-after-exposure-to-substance-in-uk/ 9516538

5 http://www.bbc.com/news/uk-43353178

6 http://www.abc.net.au/news/2018-03-06/ex-russian-spy-critically-ill-after-exposure-to-substance-in-uk/9516538; Alexander Zagvozdin, Chief KGB interrogator for the investigation, stated that Penkovsky had been "questioned perhaps a hundred times" and that Penkovsky had been shot and cremated (The Cold War. Prod. Jeremy Isaacs & Pat Mitchell. CNN, 1998. DVD)

7 http://www.abc.net.au/news/2018-03-06/ex-russian-spy-critically-ill-after-exposure-to-substance-in-uk/ 9516538

8 at [2.6]

9 at [9.119]

10 https://www.theguardian.com/uk-news/2018/mar/07/russian-spy-police-appeal-for-witnesses-as-cobra- meeting-takes-place

11 https://www.theguardian.com/uk-news/2018/mar/07/russian-spy-police-appeal-for-witnesses-as-cobra- meeting-takes-place

12 https://www.theguardian.com/uk-news/2018/apr/03/porton-down-experts-unable-to-verify-precise-source- of-novichok

13 http://www.bbc.com/news/world-europe-43377698

15  https://www.newstatesman.com/politics/uk/2017/05/fellow-travellers-and-useful-idiots

16 Professor Kwame Anthony Appiah, Mistaken Identities: Creed, Country, Colour, Culture, Lecture 4: Culture, Reith Lectures, New York City, 2016: http://downloads.bbc.co.uk/radio4/transcripts/2016_reith4_Appiah_Mistaken_Identities_Culture.pdf

 

Garth O'Rafferty