The Salisbury Attack: Don’t Forget Human Rights

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It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. 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.

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Aurel Sari says

March 15, 2018

To be fair, there was one reference to human rights in the PM's address on Wednesday (I remember because it stood out): "As I set out on Monday, we will also table a Government amendment to the Sanctions and Anti-Money Laundering Bill to strengthen our powers to impose sanctions in response to the violation of human rights. In doing so, we will play our part in an international effort to punish those responsible for the sorts of abuses suffered by Sergei Magnitsky. I hope, as with all the measures I am setting out today, that this will command cross-party support."

That said, your overall point still stands.

Noam Lubell says

March 16, 2018

Thanks, Marko, you saved me the time of sending something very similar for you all to consider posting on the blog...
This type of case is a perfect example for why the tests of control over territory or control over person are not adequate for determining extra-territorial obligations. There’s no control over the person here, but it would be completely contrary to the object and purpose of human rights treaties to exclude such killings. Rather, it should be about having direct control over the individual’s rights, not their bodies. Just as with the case of a state agent killing an individual with a sniper rifle from 200 yards away being no different to the agent that grabs hold of the person before putting a bullet in them.

Riccardo Labianco says

March 16, 2018

Very interesting reflection. I like the passage on how international law affects the arguments used.

Marko Milanovic says

March 17, 2018

Many thanks to everyone for the comments. Aurel, my reading of that reference to HR was as to HR violations internally, within Russia, as in the Magnitsky case. I.e. she wasn't calling the Skripal affair a HR violation.

Noam, I agree completely, except I'd only add that in cases of violations of negative obligations (such as this one) the state will always be in the position to have control over the individual's rights, which is why I have argued that negative obligations should be regarded as territorially unlimited.

I don't know whether you've noticed, btw, this report from the Telegraph: 'The military-grade nerve toxin that poisoned former Russian agent Sergei Skripal was planted in his daughter’s suitcase before she left Moscow, The Telegraph newspaper reported, citing unidentified sources. ... British investigators are working on the theory that the toxin was impregnated in an item of clothing or cosmetics or in a gift that was opened in Skripal’s house in Salisbury, the Telegraph said, citing the unidentified sources.'

Note how in this scenario (assuming arguendo that this hypothesis is correct) the actual conduct of the state agent - planting the toxin - took place within Russia. The consequences, however, took place outside Russia. It would in my view be an entirely arbitrary exercise in line-drawing to say that, for example, Yulia Skripal did have the right to life under the ECHR vis-a-vis Russia but that Sergei Skripal did not. The idea of control over the person logically collapses into the proposition that the state has the duty to comply with HR whenever it has the ability to violate them.

Mark says

March 17, 2018

Thanks for this. It is argued that (re the U.K.'s position): "interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law." Is International Humanitarian Law of no relevance then (Art. 51.2, AP1)?

riccardopavoni says

March 18, 2018

Beautiful words Marko! Thanks. I have also always thought about these amazing cases from a human rights perspective, or victims-based perspective... since the astonishing Litvinenko affair, actually...
since then there is an international law question intriguing my mind: would Russia enjoy immunity in an action for damages brought before the English courts by the victims and/or their heirs? I am not suggesting such an action would be an effective remedy and I am not sponsoring such an action. I just take the view that it is an unsettled issue in English practice about State immunity (the case would be the English version of the well-known US case of Letelier v Chile)
I may have missed posts touching upon State immunity issues, so sorry if this is the case

Marko Milanovic says

March 18, 2018

Thanks Riccardo. To be honest you are far more of an expert on immunity issues than I, so take what I say with a grain of salt: my understanding is that the UK under s. 5 of the State Immunity Act incorporated the idea of the territorial tort exception for proceedings regarding death or personal injury in UK territory. That provision makes no distinction between acta jure gestionis and acta jure imperii, and would thus seem to cover an FSB agent (or somebody acting on behalf of the FSB agent) poisoning the Skripals.

However, complication no. 1: under that section the 'act or omission' which caused death or personal injury must have occurred in the UK. See my comment above how one theory is that the poison was planted in Yulia Skripal's luggage before she had left Russia for the UK. If that proves to be the case the conduct took place in Russia, and the consequence in the UK, thus casting doubt on the applicability of s. 5. (I have no idea whether there's any relevant case law on this point).

Complication no. 2 is raised by the prospect - canvassed in other posts etc - that this was a use of force which triggered a (brief) international armed conflict. S. 16(2) of the Act excludes the conduct of the 'armed forces' of a foreign state on UK territory from the prior part of the Act. Thus, if the person planting the poison was part of Russia's armed forces, immunity could not be excluded under the territorial exception. This was all as you know touched upon by the ICJ in the Germany v. Italy judgment, which particularly concerned the armed forces exception to any territorial exception.

So, in sum, the answer to your question is maybe. The thoughts above are obviously tentative and factually contingent, and I'd welcome the thoughts of anyone else with greater expertise in the law of immunities.

riccardopavoni says

March 18, 2018

Thank you Marko for your prompt reaction. Great points. On No. 1, I just add - for what's worth - that the act or omission must be committed, in whole or in part, on the territory of the UK (at least this is the general interpretation) for the exception to apply. Whereas in you hyphotesis, ie, act in Russia event in England there is well settled case law that the tort exception doesn't apply.

On No.2, ie, the 'armed forces/armed conflict exemption' from the tort exception to State immunity, yes, you're right; even though there is no caselaw on the point in England (to my knowledge; the cases cited by ICJ in Germ v It. refer to acts by armed forces in peacetime) and even though, less relevantly, to me the ICJ was wrong in finding a customary rule dictating that exemption.

riccardopavoni says

March 18, 2018

act or omission 'must have occurred', in whole or in part, on the territory of the UK.
sorry for the awful typos