An International Use of Force in Salisbury?

In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

The prohibition of the use of force is one of the cardinal, jus cogens rules of international law. Serious violations of the rule trigger consequences for the international community as a whole, including the obligation not to assist the author of the violation in maintaining its consequences in place, the obligation not to recognize the result, and to cooperate through international bodies in attempting to overturn it.

The killing of individuals by state agents outside of an armed conflict is however not ordinarily considered to be covered by the prohibition of the use of force. Where a state assassinates within its own domestic jurisdiction, the designation usually employed is extra-judicial killing, mainly raising issues of human rights. The killing of individuals abroad by military means (drones, missiles) in foreign territories is generally considered under the heading of ‘targeted assassinations’ which will tend to occur either with the active or tacit consent of the territorial sovereign (Yemen for some time, possibly Pakistan), in the absence of an effective government (Somalia) or during a time of armed contestation for power in a foreign territory (Syria and Iraq).

In addition to the human rights of the victims, assassinations on foreign soil without the consent of the local sovereign also amount to a violation of the territorial sovereignty of the state concerned—an act of intervention. An intervention consists of a public act committed by one state within the area of domestic jurisdiction of another without the latter’s consent.

It is, of course, entirely possible that an act of intervention may also amount to a use of force. The International Court of Justice has confirmed that acts which breach the principle of non-intervention ‘will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.’ [Nicaragua Case [1986 ICJ para 209], affirmed in DRC/Uganda Armed Activities [2005 ICJ para 164.]] For instance, if the armed forces of state A conduct a commando raid against an alleged terrorist base in state B, this would amount to an intervention and a use of force.

However, in the past, an individual assassination would not be seen to fit into this context. Article 2 (4) of the UN Charter is traditionally interpreted to concern itself with kinetic force of sufficient intensity administered across borders through regular or irregular military means. The use of force must be aimed at a sovereign object identified with a state, such as foreign territory, ships or aircraft. Arguably, an assault by military means on a group of nationals abroad on account of their nationality might also involve the prohibition of the use of force. However, violence against specific individuals is unlikely to cross that threshold.

A borderline case arose in April 1993, when former US President George HW Bush visited Kuwait to be decorated in the wake of the first conflict with Iraq. It was claimed that a plot by Iraqi intelligence to assassinate him was narrowly averted. Two months later, in June 1993, President Bill Clinton launched 23 cruise missiles against the Iraqi intelligence headquarters building in Baghdad. The US claimed that the attempted assassination of the former President was an attack against the United States and its people.

Such a claim could be arguably made, given the symbolic position of the former President, although the case for self-defence was not compelling for other reasons. But how about assaults launched by foreign states against individuals of lesser standing on foreign territory? Traditionally, these have been addressed through law enforcement action against the individual operatives involved, if detained, and by the invocation of state responsibility and demands for satisfaction and compensation in relation to the sponsoring state.

Of course, ordinarily the sponsoring state will deny its involvement. An exceptional case is furnished by France. Paris confirmed its commissioning of the sinking of the Greenpeace campaigning vessel Rainbow Warrior in Auckland Harbour in 1985 after two of its agents, Captain Prieur and Major Mafart, were detained in New Zealand. The pair had sunk the ship through the use of a limpet mine they had placed on the hull under the water-line, killing a Dutch/Portuguese photographer in the process.

New Zealand courts convicted both individuals, imposing ten-year sentences. However, under a diplomatic settlement negotiated by the UN Secretary-General, they were allowed to serve their sentence on the French Polynesian island of Hao and were later, controversially, repatriated to France.

Despite the use of a military-style assault on the Rainbow Warrior (limpet mines attached by frogmen/women) and the sinking of the vessel in consequence, the issue was not treated as an international use of force. Instead, it was considered an unjustified intervention in New Zealand territory and settled through apology and compensation.

Similarly, Malaysia has not pursued the assassination of Kim Jong-nam, half brother of North Korea’s leader, a year ago as an international use of force. He died after exposure to the deadly nerve agent VX at Kuala Lumpur airport by two operatives.

After her statement to Parliament, Theresa May’s addressed a letter to the UN Security Council, referring to an ‘attack’ on British soil which offended against the ‘rules-based international order.’ [S/2018/218] During the debate in the Council on 14 March, the UK Permanent Representative then reiterated the view that an attack had taken place which constituted an unlawful use of force, invoking expressly Article 2 (4) of the Charter as the very basis of the international legal order.

This position elevates what would otherwise be the commissioning of a crime on British soil and an act of intervention by a foreign state to a higher plane of violation of international law.

Clearly, invoking this legal category was meant to raise the stakes in the diplomatic confrontation with Russia that is now erupting. The experience of the UK in the Litvinenko case may explain this change of tack. There, the attempt to cooperate with the Russian Federation for over a decade in a law enforcement approach had visibly failed. Seemingly adding insult to injury, the principal suspect ended up as a high profile member of the Russian parliament, rather than face surrender for trial in Britain.

The UK may argue that the use of nerve agents on UK territory justifies this dramatic claim. The use of such agents is internationally proscribed. Deploying such weapons remains mainly the preserve of states due to the difficulties of producing and handling the compounds involved, moving such acts from a domestic crime into the area of state responsibility. But can the character of the weapon used transform an act of intervention into a ‘use of force’?

A focus on the weapons used, rather than on the actual harm done, reminds of the legal justification offered by the UK government when military action against Syria appeared to be contemplated in 2013 in response to the Sarin attack in Eastern Ghouta. At that time, the alleged use of chemical weapons by the Syrian government against civilian populations was invoked as a key argument to justify action under the doctrine of forcible humanitarian action.

While the Syrian population had suffered from very widespread, damaging and indiscriminate attacks (barrel bombs) for a considerable period, it appeared that the use of chemical agents was seen as a qualitatively different factor, adding to any available legal justification of the use of force in response. A similar argument appears to have underpinned the actual use of force by the Trump administration of April 2017. The Shayrat airbase, held by Syrian government forces, was targeted on account of its alleged involvement in a further chemical weapons attack.

Of course, in relation to Syria, there was indeed a very great deal of indiscriminate destruction of life in consequence of the use of chemical weapons. However distressing the events in Salisbury are, in terms of scale of the consequences of the action, the two cases do not easily compare.

Yet, anyone coming into contact with nerve agent or the primary victims in Salisbury may have been under threat. In her statement to parliament, the UK Prime Minister referred to the ‘potentially catastrophically damaging nerve agent’ that was used. In the Security Council, the UK claimed that as many as 100 citizens had been potentially exposed.

Evidently, the UK is seeking to set a signal at this point, asserting that some means of intervention are inherently of such a nature as to transform an unlawful intervention into an unlawful use of force. This special character is a reflection of the uncontrollable potential of chemical and related weapons for causing indiscriminate harm, whatever the scale of actual injury or death actually caused by its use.

It is not yet clear whether this strategy will succeed. All members of the Council condemned the action in Salisbury, variously describing it as an attack, an incident, a hostile act, a crime or a threat to international peace and security. The designation of the act as a use of force, on the other hand, was not echoed in the Chamber. Rather than discussing the matter in terms of the law on the use of force, the debate focused on law enforcement (accountability), resisting a violation of the chemical weapons convention and establishing the facts through the appropriate international mechanisms.

A number of related legal concepts may now come into play. In order to seize the UN Security Council, the UK had to point to an endangerment of international peace and security (Chapter VI), or even a threat to the peace (Chapter VII)—both terms were employed by other delegations in the debate. Clearly, this matter does fall within the remit of the Council, Russia’s claim that other mechanisms, such as the OPCW, are better suited to addressing it notwithstanding.

The use of the term ‘attack’ by the UK and several delegations raises the question of whether a claim to self-defence can be made. Article 51 of the UN Charter requires an ‘armed attack’ as the trigger point for self-defence.

NATO noted London’s position that an ‘indiscriminate and reckless attack against the United Kingdom, putting the lives of innocent civilians at risk’, had taken place. In its own statement, it expressed  ‘deep concern at the first offensive use of a nerve agent on Alliance territory since NATO’s foundation’.  The term ‘offensive use’ might conceivably be interpreted as equivalent to an ‘armed attack’. However, it is presumably no accident that the former term was used instead of the latter. Rather than invoking Article 5 of the NATO Treaty, or referring to a use of force, the North Atlantic Council instead considered the matter a ‘clear breach of international norms and agreements’.

In conclusion, the UK has upped the ante in its confrontation with Russia, moving the issue from a violation of its sovereignty and a crime committed on its territory to the realm of threats to the peace and the unlawful use of force.  The suggestion that an assault using toxic agents against individuals in a foreign territory constitutes a ‘use of force’ in the sense of Article 2 (4) of the Charter seems persuasive where their indiscriminate effect causes significant casualties meeting the threshold of that provision.

The thesis that any use of toxins would amount to a use of force, due to their potential (rather than actual) widespread and indiscriminate effects, will need to be tested in the further positions of states over the weeks to come. Presumably great care will be taken to ensure that talk about an ‘attack’ will not move the debate further, and recklessly,  into the territory of the jus ad bellum.