The Assassination of Alexander Litvinenko Before the European Court of Human Rights

In more extraterritoriality news, the Guardian recently reported that the widow of Alexander Litvinenko, who was killed in London in 2006 by Russian agents using a radioactive poison, has revived the claim she had previously filed against Russia before the European Court of Human Rights:

The widow of Alexander Litvinenko has submitted a claim against Russia to the European court of human rights (ECHR), seeking €3.5m (£3.1m) in compensation for his murder by radiation poisoning in London.

Marina Litvinenko is requesting punitive damages and payment for accumulated lost income. A public inquiry concluded that her husband’s murder in 2006 was probably ordered by Vladimir Putin.

The submission also asks the Strasbourg judges to rule on the significance of the pattern of targeted assassinations and attempted killings allegedly carried out by Russian state agents across Europe and the Middle East.

Among the attacks listed are the 2018 poisoning of Sergei Skripal and his daughter Yulia in Salisbury and the subsequent death of Dawn Sturgess after she handled a discarded container filled with the nerve agent novichok.

The application against Russia was originally filed in 2007; it was suspended in Strasbourg while the public inquiry in the UK into the killing was pending. It current procedural status is not all that clear to me – a HUDOC search does not show that the case has actually been communicated, which likely means that the exhaustion of domestic remedies poses an admissibility problem. My guess is that the reference to a pattern of targeted assassination is meant to prove an administrative practice by Russia that would remove the need to satisfy the exhaustion requirement. But I have not been privy to any of the pleadings, so again I don’t know what the status of the case exactly is.

If the case does proceed to the merits, so that the Court needs to examine whether there is a procedural and substantive violation of the right to life in Article 2 ECHR, the Court will clearly have to say something about the extraterritoriality problem since Litvinenko was killed in London, and not on Russian territory. Per the rightly maligned Bankovic decision, dropping a bomb from the air on someone outside the state’s territory would not create a jurisdictional link in the sense of Article 1 ECHR; on the same logic, neither would poisoning someone with polonium, even if the political optics of the two cases are completely different. And so, in order to maintain their position that the ECHR should not apply to kinetic uses of force – an issue of great controversy – states such as the UK find themselves in the unenviable position that they also have to argue that the extraterritorial assassinations of political opponents, using radioactive or chemical agents, also do not violate the ECHR. Even if they manifestly do, or should, just like territorial ones (e.g. the recent attempted killing of Navalny).

And this seems to be precisely what has happened in the revived Litvinenko litigation. As the Guardian reports:

The UK government is cooperating with the Strasbourg court as it gathers evidence to assess the case. However, it has declined to intervene directly in support of the widow’s claim, partially on the grounds that it could affect the way the court deals with future British cases.

…

The case raises complex legal questions about how the ECHR applies the principle of extraterritorial jurisdiction where one state carries out assassinations on the territory of another.

A letter from Paul McKell, the legal director at the Foreign Office, to Litvinenko’s lawyers – seen by the Guardian – explains that the UK government cannot agree to her request to intervene formally in the case.

The government is already participating in the proceedings, the letter says, “to the extent that it is preparing a response to the request by the [ECHR] to provide comments”.

However, it continues: “The application raises issues, such as those relating to jurisdiction, that are sensitive and have some potential to impact on UK cases in the future.”

If I can translate this to more plain terms, the UK government is refusing to intervene formally, to claim that Litvinenko’s killing violated his right to life, because doing so would force the UK government to accept that the European Court (and UK courts) would also be able to look at the legality of uses of lethal force by British troops, planes and drones in Syria, Iraq, Afghanistan or what have you. And they don’t want to do that. Yes, they will say that the killing of Litvinenko ‘was a blatant and unacceptable breach of international law.’ But the breach they have in mind is that of British sovereignty, i.e. the rights of the UK as a state, not the rights of Alexander Litvinenko as a human being.

That, to my mind, is a deeply unappealing position to be in. It is certainly not sustainable on any moral principle. As I explained in 2018 with regard to the chemical attacks in Salisbury, back then that same problem caused the UK to avoid any references to the human rights of the victims:

I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

Two years later, after the death of Dawn Sturgess and the near-death of others in Salisbury, the murder of Jamal Khashoggi, and a spate of other politically motivated extraterritorial assassinations, that point stands. The UK government should reconsider its restrictive position on the extraterritorial application of human rights law, sooner rather than later. And so should the European Court.