5 September 2020
By Kirill Koroteev, head of international legal practice at Agora International Human Rights Group
On the basis of the statement by Germany, the OPCW [Organisation for the Prohibition of Chemical Weapons] may open an international investigation
So far very little public attention has been paid to the part of the statement made by the German authorities which says that the information about Aleksei Navalny’s poisoning by a Novichok-class substance will be handed over to the Organisation for the Prohibition of Chemical Weapons (OPCW). The memo may seem like simple courteous diplomatic correspondence, but in fact it is the act of a state that may launch a serious and formal international investigation.
The Navalny incident may become the fourth publicly examined situation at this Hague organisation and the third concerning Russia directly or indirectly. In addition to Libya, the organisation has also examined or is examining Salisbury, where Russia was directly accused of using a chemical weapon, and Syria, where Russia is directly supporting government troops using banned methods of warfare.
Like Russia and nearly all states in the world, Germany is a participant in the Chemical Weapons Convention, which went into force in 1997 and created the OPCW. The convention’s first article bans the use of chemical weapons in any circumstance, and also by a general rule introduces a ban on the production of new weapons and demands the destruction of existing weapons. The OPCW in and of itself does not monitor compliance with the convention, but it does offer participating states a platform and procedures for establishing facts and resolving disputes concerning chemical weapons.
The United Kingdom turned to the procedures provided by the convention after the widely publicized incidents in Salisbury and Amesbury. Believing it had been the subject of a chemical weapons attack by another state, the UK requested the OPCW’s help. Although the OPCW report was not published, the organization publicly confirmed that its specialists’ conclusions about the substance used matched British conclusions.
The discussion of this report – unlike its text – is publicly available on the OPCW website, where you can read how the Russian authorities, changing their position from session to session, have refuted one “lie” by the United Kingdom after another (these “lies” are even numbered), laying responsibility first on the Czech Republic and then on the United States. It is no surprise that the Russian authorities’ position did not have any particular effect on other states, and although the OPCW decision is formulated in such a way as not to violate the report’s confidentiality, the organisation condemned the use of the poisonous substance.
In the case of Aleksei Navalny, however, judging from the available information, the chemical weapon was used by citizens of Russia against citizens of Russia on the territory of Russia – so apparently, this can only be a matter of the relationship between Aleksei Navalny and the Russian authorities with respect to the latter’s liabilities. However, the 1997 convention’s ban on the use of chemical weapons is absolute. There are no qualifications whatsoever about the ban’s nonapplicability to the use of chemical weapons inside a single state. This is in fact the subject of a report from 8 April of this year prepared by an OPCW fact-finding mission in Syria: Syrian Su-22 airplanes dropped poisonous substances on citizens of Syria on Syrian territory, which led to numerous deaths.
Final decisions have not yet been taken, but they can be expected at the upcoming conference of participating states in November-December.
Any participating state in the 1997 convention may have recourse to the procedures described in it. Article IX of the Convention envisages the possibility of a state turning to the Executive Council, which is made up of representatives of 41 countries, both in situations of ambiguity as to whether the Convention has been observed and in the nowadays fashionable situation of concern that it is being violated, especially if there is proof of its violation. Considering that the ban on the use of chemical weapons is absolute, and the consequences can be very serious, strict and brief deadlines are provided for the taking of decisions; this is not the international courts, which decide cases 20 years after the events.
After receiving an inquiry from a state about the need for clarifications from another state, the Executive Council conveys the inquiry within 24 hours, and 10 days are given for a reply. If the inquiring state considers the reply unsatisfactory, it may send a repeat inquiry, and this time the Executive Council may additionally form a group of technical experts to prepare a report. If the repeat inquiry does not lead to a satisfactory explanation either, the Executive Council may present the state that has not provided the clarifications with measures that it must undertake in order to correct the situation.
In addition to this, states may demand that inspections be conducted on site if they believe that another state is not complying with the convention. The inspections are carried out by experts appointed by the general director, and the state where the inspection is carried out is obligated to assist the team of experts. The Executive Council may block an inspection, but only within 12 hours after being informed and only by three fourths of the votes. Once it has received the experts’ report, the Executive Council takes a decision as to whether the Convention was observed, what measures are required to correct the violation, and what the financial consequences of the violation are.
If violations of the Convention are not corrected, a conference of all the participating states may restrict or curtail the rights of the offender state and also recommend that the states take collective measures in accordance with international law. Although this does not look as encouraging as an armed intervention and handing over a dictator to the court of victors, it is important to remember that conclusions about a violation of international law made by competent organs according to previously established procedures have value in and of themselves.
It means that an end has been put to the dispute, doubts have been dispelled, and one may be sure rather than merely suspect.
Translated by Marian Schwartz