18 March, 2018

The Salisbury attack - Further notes

The Convention:

The Chemical Weapons Convention came into force on 29th April 1997 - see OPCW - Genesis and Historical Development.   A list of State Parties to the Convention is on the Organisation for the Prohibition of Chemical Weapons (OPCW) website.  The OPCW Member States represent about 98% of the global population and landmass, as well as 98% of the worldwide chemical industry.

Salisbury Attack - Attempted Murder:

On 4th March 2018, in Salisbury (UK),  Mr Sergei Skripal and his daughter Yulia became seriously ill.  It appears that they were poisoned with a "nerve agent" which was later stated to be one of a group of such agents known as 'Novichok’ ("newcomer").  A Police Officer who went to the scene in Salisbury was also affected.

Response by government:

In the House of Commons on Monday 12th March, the Prime Minister (Theresa May) made a statement - HERE - in which she said:

"It is now clear that Mr Skripal and his daughter were poisoned with a military-grade nerve agent of a type developed by Russia.

This is part of a group of nerve agents known as ‘Novichok’.

Based on the positive identification of this chemical agent by world-leading experts at the Defence Science and Technology Laboratory at Porton Down; our knowledge that Russia has previously produced this agent and would still be capable of doing so; Russia’s record of conducting state-sponsored assassinations; and our assessment that Russia views some defectors as legitimate targets for assassinations; the Government has concluded that it is highly likely that Russia was responsible for the act against Sergei and Yulia Skripal."

The Prime Minister further stated that - " ... there are therefore only two plausible explanations for what happened in Salisbury on the 4th 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.
This afternoon my Rt Hon Friend the Foreign Secretary has summoned the Russian Ambassador to the Foreign and Commonwealth Office and asked him to explain which of these two possibilities it is – and therefore to account for how this Russian-produced nerve agent could have been deployed in Salisbury against Mr Skripal and his daughter.

My Rt Hon Friend has stated to the Ambassador that the Russian Federation must immediately provide full and complete disclosure of the Novichok programme to the Organisation for the Prohibition of Chemical Weapons.

And he has requested the Russian Government’s response by the end of tomorrow."

The matter was raised, at the request of the UK government, in the United Nations Security Council (UNSC) and the meeting may be viewed at:

United Nations Security Council 14th March 2018 - video of 8203rd meeting

In a further Statement to the House of Commons - Statement of the Prime Minister 14th March - the Prime Minister set out some detail of action the UK was taking in response to this event and that included the expulsion from the UK of 23 diplomats who, according to the Prime Minister, "have been identified as undeclared intelligence officers."

On 17th March, it was announced that Russia is expelling 23 British diplomats and is also closing the British Council in Russia (which promotes cultural ties between the nations) and the British Consulate in St Petersburg.

UK Government response

Statement by Russia:

A Statement of 14th March from the Russian Embassy in London, said:

"The March 14 statement made by British Prime Minister Theresa May in Parliament on measures to “punish” Russia, under the false pretext of its alleged involvement in the poisoning of Sergey Skripal and his daughter, constitutes an unprecedented, flagrant provocation that undermines the foundations of normal dialogue between our countries.

We believe it is absolutely unacceptable and unworthy of the British Government to seek to further seriously aggravate relations in pursuit of its unseemly political ends, having announced a whole series of hostile measures, including the expulsion of 23 Russian diplomats from the country.

Instead of completing its own investigation and using established international formats and instruments, including within the framework of the Organisation for the Prohibition of Chemical Weapons – in which we were prepared to cooperate – the British Government opted for confrontation with Russia. Obviously, by investigating this incident in a unilateral, non-transparent way, the British Government is again seeking to launch a groundless anti-Russian campaign.

Needless to say, our response measures will not be long in coming."

Russian Embassy - various links

United Nations Charter:

Theresa May asserted that, absent a satisfactory explanation from Russia, the action was an “unlawful use of force by the Russian State against the United Kingdom” (see here and here, and see also the statement by the British UN Chargé d’Affaires during the emergency meeting here). The UK also referred to an “attack” on British soil – without, however, speaking of an “armed attack” (see here). The same is true for the statement issued by the North Atlantic Council (see here).  These views explain why the UK government raised the matter in the UN Security Council and obtained the emergency meeting.  From the outset, Russia has denied any involvement in the attack.

The despicable nature of the attack in Salisbury cannot be doubted and the use of chemical weapons inevitably raises serious questions about the control of such weapons.  Some commentators have gone so far as to suggest that their use brings into play Articles 2(4) and 51 of the United Nations Charter. 

Article 2(4) - "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Article 51 states - "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

An article by Tom Ruys published via the Just Security website discusses the possible application of those articles to an event such as Salisbury - see "Licence to kill" in Salisbury: State-sponsored assassination and the jus ad bellum."   

Ruys concludes  - " ....  notwithstanding the despicable nature of an assassination attempt on foreign soil, especially one using a chemical weapon posing a serious health risk to innocent bystanders, it remains very difficult to see how the Salisbury attack could qualify as an “armed attack” under the UN Charter.  If Moscow is indeed behind the attack, this certainly merits a strong rebuke by the British authorities, but also by the broader international community. A further escalation of the row between Russia and the UK by a British invocation of Article 51, however, seems both politically unwise, and difficult to reconcile with the existing international legal framework."

Article IX of the Convention:

Article IX.2 - "Without prejudice to the right of any State Party to request a challenge inspection, States Parties should, whenever possible, first make every effort to clarify and resolve, through exchange of information and consultations among themselves, any matter which may cause doubt about compliance with this Convention ....."

The Russian statement (above) expressed the view that the UK  had to act within the framework of the Organisation for the Prohibition of Chemical Weapons.  In fact, the UK did that but also raised the matter with the UN Security Council.

Article IX.2 clearly seeks to get "doubt about compliance" to be resolved through "exchange of information and consultations" and the Convention requires State Parties to work with the OPCW.  For instance, Article XII -  sets out the Measures to Redress a Situation and to Ensure Compliance, including Sanctions and begins - "The Conference shall take the necessary measures, as set forth in paragraphs 2, 3 and 4, to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of this Convention.  In considering action pursuant to this paragraph, the Conference shall take into account all information and recommendations on the issues submitted by the Executive Council."

Article IX.2 uses the wording "should, whenever possible, first make every effort ..."   Those words appear to place an obligation on State Parties to not only use the Convention mechanisms in order to clarify any doubts about compliance but also to do so as a first step.  The UK has raised the matter with the OPCW but, clearly to the annoyance of Russia, also raised the matter at the UNSC.

The UNSC has the functions given to it by Chapter V of the UN Charter and those include "primary responsibility for the maintenance of international peace and security ..." (Article 24).  It therefore appears that, the Convention notwithstanding, access to the security council remains as an option for an aggrieved State.  There seems to be nothing in the Convention to prevent such access. 

There is anger in London at the events of 4th March.  There is anger in Moscow at the UK's response including the fact that the issue was raised at the UNSC.  It is to be hoped that, via the Chemical Weapons Convention processes, the facts can be determined fully and the matter resolved in as satisfactory a manner as possible.

Other links:

OPCW 27th September 2017 - Director-General commends major milestone as Russia completes destruction of chemical weapons stockpile under OPCW verification  and see the Commemorative Plaque.


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