An International Use of Force in Salisbury?

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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]

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.

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Aurel Sari says

March 15, 2018

The fact that New Zealand did not treat the Rainbow Warrior affair as an international use of force may have to do more with the circumstances of the case than the underlying facts or the law. New Zealand had custody over two of the French agents involved. Adopting a law-enforcement approach focusing on the personal liability of the French agents rather than an international use of force approach focusing on the responsibility of France for violating Article 2(4) made more sense, even though these two approaches would not necessarily have been mutually exclusive (subtext: France tried hard to assume responsibility on behalf of its agents, while New Zealand did its best to ignore the functional immunity of the two French officers). Either way, none of this prevented the New Zealand Government from describing the affair as "serious criminal offences involving the use of force". Had the circumstances been different, it could credibly have adopted a different tactic and focused on State responsibility for the international use of force, rather than individual liability for the criminal use of force.

The UK finds itself in the reverse situation: no suspect is in custody. Whilst a criminal investigation is under way, the prospects of a successful prosecution look slim. Naturally, State responsibility comes to the fore. In her statement to Parliament on Wednesday, the Prime Minister has thus emphasised the effect of the incident on the UK: “This attempted murder using a weapons-grade nerve agent in a British town was not just a crime against the Skripals, but an indiscriminate and reckless act against the United Kingdom, putting the lives of innocent civilians at risk.” The question is whether the mere risk of significant casualties, rather than actual casualties, suffices to rise above the threshold of a mere intervention into the internal affairs of the UK. If the provision of arms to a rebel movement can involve the use of force, as the ICJ held in Nicaragua, it is difficult to see why the actual use of a chemical weapon, even on a small scale, cannot – in principle – amount to a use of force, assuming the act is attributable to the State concerned.

Carmen Madgearu says

March 15, 2018

Well, it is not yet sure at all who used those toxines in the first palce. If we look at the situation in terms of who was to win from it, we could even hypothesize that the UK government itself could have created the incident in order to have grounds to bring Russia to the Security Council and justify bullying and aggressive behavior against it, even war. Given UK's and US's record in terms of creating themselves reasons to attack other States, this would not seem so implausible.

Federica Paddeu says

March 15, 2018

That’s an interesting comment.

But if the point is about holding someone to account - in this case Russia - then is it really necessary to class this as a ‘use of force’? After all, as Marc argues, this could be a breach of international law anyway, in the form of an intervention or even a breach of territorial sovereignty. These are conceptually distinct obligations from the use of force, even though on occasion, the same conduct can breach all of them at once (as in Nicaragua). The point is, you want State responsibility, well you can get it in this case without having to claim this to be a breach of the prohibition of force.

Other than raising the political stakes, and perhaps get some UNSC action or statement, I cannot see the benefit of talking about this as a use of force in the sense of Art. 2(4) of the Charter. (I think there are indeed significant drawbacks to doing so - diluting the prohibition, for one, but also potentially unwanted implications as to the existence of an IAC that others have drawn.)

All best,


Marty Lederman says

March 15, 2018

Very interesting, thanks, Prof. Weller. Over on twitter (sigh), a bunch of us have been assuming that of course it was a use of force, and that the more interesting question is (as you discuss at the end) whether it was an armed attack that might justify the use of force in self-defense. (My view, FWIW, has been that it is clearly an armed attack, and that the interesting and important question for ad bellum purposes would be what sort of response would be necessary and proportional in terms of preventing future such attacks.)

You suggest, however, that a "use of force" "must be aimed at a sovereign object identified with a state, such as foreign territory, ships or aircraft," and that whereas "[a]rguably, an assault by military means on a group of nationals abroad *on account of their nationality* would satisfy this test," a deliberate killing such as this one, in which the acting state was indifferent as to the relationship between the individual and the host state, would not be a use of force. In other words, that whether it is a use of force depends, at least in part, on whether the *object* of the acting state is to harm the affected state, rather than simply to harm persons within that state for reasons unrelated to that state.

This is a very intriguing idea. Three questions about it:

1. From where do you derive this intent-based requirement? Is there anything in the negotiations of the Charter suggesting it? Has any state articulated such a precondition?

2. How can you reconcile it with your understanding--shared by most states and observers, I think--that "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" (e.g., the actions of the U.S., U.K. and others against ISIL in Syria)?

3. *Why* would one impose such an intent-baed requirement? What are the dangers or downsides of saying that it is a use of force even if Russia's sole objective was to harm individuals, regardless of their British nationality or residence? Federica Paddeu writes of the "potentially unwanted implications as to the existence of an IAC." Is that what you had in mind? If so, what are those implications and why are they "unwanted"?

Thanks again,

Marty Lederman

Federica Paddeu says

March 15, 2018

Dear Marty,

In haste: I found that this post by Charlie Dunlap articulated quite well my concerns about unwanted consequences.

All best,


Marty Lederman says

March 15, 2018

Thanks, Federica. Actually, Charlie argues that we should reconsider the idea that any "use of force" by one state in the territory of another automatically creates an "armed conflict"--at least where it does not also take the form of an "armed attack" that would justify the use of force in self-defense. An intriguing suggestion, but again, other than the point Charlie makes that it's confusing to the public to say there's an "armed conflict" without any mutual hostilities (which is not a trivial concern), what is the downside, from a legal perspective, in saying that an armed conflict exists (such that, e.g., the protections of the GC are triggered)?

Jens Iverson says

March 15, 2018

Very interesting!

To my mind, there is a tension in Prof. Weller's piece. He states: "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."
Yet he also states: "The use of force must be aimed at a sovereign object identified with a state, such as foreign territory, ships or aircraft."

If the alleged terrorist base is not identified with the state, then those two statements cannot both be true.

Prof. Weller also describes "military means (drones, missiles)". I'm not certain why nerve agents are less military than missiles. Does the fact that this type of weapon is prohibited under international law make it more or less "military?" Would his analysis change if a Russian missile was employed?

There's also a factual question - if this is considered not as a single attempted murder, but as part of a group of killings, does it change the analysis? Is there an upper bound for how many non-state agents a foreign state may kill without such conduct being a colorable case of use of armed force? Does it matter if, while not a present agent of the UK government, they were also of particular interest to the UK government (and in a sense under particular protection of the UK government)?

Is "assassination" the best term when dealing with killings of individuals who are not prominent officials? Is "murder" or "killing" clearer?

I'm generally skeptical of attempts to broaden the definition of the international use of armed force (which is what's at issue), or armed attack (a higher standard). I salute efforts to keep the distinction between non-lethal (e.g. cyber, economic, political) and lethal intervention clear. I'm disturbed by grandstanding by politicians that are eager to call anything they can an "attack." To my mind, there was no armed attack here, and there is no international armed conflict. But the conduct in question certainly is the type of conduct that can lead to armed conflict, and it seems a reasonable subject for not only the Human Rights Council, but also the Security Council (given its mandate to maintain international peace and security). If a resolution under Chapter VI was proposed in response, I'd be curious for opinions as to whether Russia and the UK would be obliged to abstain pursuant to 27(3).

Matthias Hartwig says

March 15, 2018

Dear Marc,
I share your view on the Litvinenko case. But I want to emphasize that Russia was and is under no obligation to extradite her own citizens. Art. 61 of the constitution of the Russian Federation expressly prohibits the extradition of Russian citizens. Art. 6 of the European Convention on Extradition to which both the United Kingdom and the Russian Federation are parties, states: “A Contracting Party shall have the right to refuse extradition of its nationals.” Therefore, the United Kingdom’s request to extradite the Russian citizens possibly involved in the attack on Litvinenko had no legal foundation. However, one may for good reasons qualify the Russian unwillingness to investigate the case in Russia as cynical.

In the given case it is necessary to establish verifiable facts before far-reaching measures are taken. It would be interesting to know to what extent the States, i.e. the United Kingdom and the Russian Federation must cooperate under the regime of the Convention on the Prohibition of Chemical Weapons.


Rob Lawless says

March 15, 2018

Prof. Lederman,

I agree that Prof. Dunlap raises the problem of confusion. Specifically, he argues that describing the UK and Russia as in an IAC, even while the conduct which led to such designation is not sufficient to legally justify forceful self-defense, is "counterintuitive." (He also cites Prof. Goodman's view that this legal consequence would likely sound "odd" if presented to a policymaker.)

But Prof. Dunlap also makes the important point that "telling the two nuclear powers in this case that they are in an 'armed conflict'" may not serve the interest in garnering respect for the law. My understanding is that Prof. Dunlap's fear - and perhaps this is what was meant by "unwanted implications" - is that in such situations States may be unlikely to grasp (or care to grasp) the legal nuance and instead may take the IAC designation as motivation or justification to begin acting like they are at war.

From a legal perspective, an important sub-issue to this latter point is the on-going debate about the extent to which the law of armed conflict on its own provides affirmative authorization to Parties to use force or, alternatively, whether and to what extent such authorization comes from elsewhere, leaving the law of armed conflict to function only (or mostly) as a set of restrictions against the Parties and protections of potential victims of war.

Thank you.

Martin Dawidowicz says

March 15, 2018

On the intriguing point raised by Federica ("If the point is about holding someone to account – in this case Russia – then is it really necessary to class this as a ‘use of force’?"), it may be worth pointing out - by way of speculation - that the characterisation of the act as an "unlawful use of force" (i.e. an erga omnes breach) may well have been deliberate in order to reserve any future possibility of the EU (and others) adopting third-party countermeasures against Russia (whereas characterising the act as 'simply' a breach of "territorial sovereignty" or "non-intervention" would only justify bilateral (UK) countermeasures). Whether any such breach of the principle of non-use of force would be sufficiently 'serious' to trigger any right to take third-party countermeasures in this case is of course a separate question.

Jens David Ohlin says

March 15, 2018

It seems to me that there was a very close connection between the individual killed and the UK's sovereign interests. This wasn't just a private citizen. First, Sergei Skripal was a (covert) agent for the UK intelligence service. Second, Skripal didn't randomly move to the UK; he was brought there after an international prisoner exchange whereby the Russians received the spies in the US and Skripal was released from Russia. (Incidentally, Russia has now gotten both sides of the deal: freedom for their agents and a reprisal against the UK agent). It seems to me that even if there is a requirement of some connection between the sovereign and the target of the use of force, it is more than satisfied in this case.

Federica Paddeu says

March 15, 2018

Marty, I think Rob Lawless answered the question - my concern is precisely of telling two nuclear powers that they are now in an armed conflict thus providing them with a justification to act as it they were in one. IHL surely has protections for civilians, but it also limits certain of their freedoms and liberties (think, for instance, of civilian detention).

Martin: that's a good point. Having just finished reading your enlightening book, however, it did not seem like a real possibility given that the threshold of a ‘serious violation’ may not (at least so far) have been met!

Minh Tran says

March 16, 2018

Aurel Sari,
Your point is very interesting when you brought into the picture the matter of state responsibility. Although state responsibility is not relevant in proving that there is a case involving the use of force or intervention or violation of state sovereignty, it reminds that there must be evidence sufficient to prove that the incident in Salisbury is attributed to Russia. It is because only a state can use force or intervene or violate the sovereignty of other states under international law, not individuals or non-state actors.
In this case, available information suggests that the UK has not captured any suspects or that it “knew” any suspect in this case. Without a custody of suspects or evidence sufficiently attributed the incident to Russia, the allegations from the UK seems to be premature.
It is worth noting that the UK’s conclusion was not based on any direct evidence, but as Prime Minister May pointed out before the House of Commons on 14 March that the conclusion was reached because “there is no alternative conclusion” among two plausible conclusions previously suggested by the UK itself. Even the joint statement of France, Germany, the US and UK did not directly attribute the incident to Russia, but simply acknowledged that they “share the UK assessment that there is no plausible alternative explanation”. By the way, should international law have a principle of presumption of innocence like in domestic laws when it comes to allegations of one state against other state?

Carmen Madgearu says

March 17, 2018

It is to me amazing how many very learned international lawyers gather on these pages and rush to discuss whether "Russia's acts" amounts to an armed attack under art. 51 of UN Charter or not, thus biting the bite thrown through aggressive rhetoric by the powerful of the day. I think this discussion distracts attention from what is more fundamental first: establishing the facts of the situation.

We do not have any proof that Russia is involved in the poisoning except for the fact that victims are Russian, and declarations by the UK that the poisoning substance belong to the "old soviet arsenal" (?!), plus an aggressive rhetoric by UK, French, American officials - the usual suspects to count on when the world must be convinced that there is another rogue dictator (un-submissive to the West) that must be taught the lesson of democracy and civilization, lesson which usually amounts to a whole population crippled with sanctions, head of state anihilated, and a whole country devastated after the correcting intervention and ready to be "reconstructed" lucratively by Western powers companies.
One more reason for caution, is that we have the precedent of allegations by US and UK high officials of the existence of an arsenal of chemical weapons held by Saddam Hussein which was never found, but on the basis of which the recourse to force against Iraq was justified. There are also many other grave accusations, made in various contexts the veracity of which has never been proven.

In light of such precedents, shouldn't we, international lawyers, before jumping on the issue whether it is or not a case of armed attack, be struck in our legal consciousness, with the fact that burden of proof is being reversed in the Western powers rhetoric, with the fact that they are mounting allegations, but summon the accused to prove its innocence, instead of themselves proving beyond doubt, or at least beyond reasonable doubt, that their accusations are true?

As Minh mentioned above, shouldn't we prompt to the front of the legal debate the principle of good faith, and the presumption of innocence, instead of allowing Theresa May determining the agenda of the international legal debate? Instead of use of force, shouldn't international lawyers insist to talk first about fact finding, apply in this case of grave, un-evidenced accusations,the discussion about the legitimacy of targeted sanctions against individuals "suspected" of various things without proper proof of such suspicions, search for precedent and argument with the sole purpose, not to take anybody's side in this conflict, but with the purpose to put first things first?

I guess, for some, this path of authenticity is not conducive to academic career advancement ...

With sadness,