Responsible until proven otherwise? – Germany holds Russia responsible for the use of a chemical weapon in the poisoning of Alexei Navalny

Published: 07 October 2021 Authors: Mary Lobo and Stefan Talmon

On 20 August 2020, prominent Russian opposition activist Alexei Navalny fell seriously ill on a domestic flight from the Siberian city of Tomsk to Moscow. After an emergency landing of the aircraft in Omsk, he was admitted to the local hospital in a serious condition. From the outset, there were rumours of poisoning. In a first reaction to the incident on the same day, Chancellor Angela Merkel offered Mr. Navalny medical treatment in Germany and called for a thorough investigation, stating:

“It is now very, very important to clarify how this situation came about. We will insist on that. Because what we are hearing so far suggests very unfavourable circumstances. That has to be made very, very transparent.”

In the regular government press conference the next day, the government spokesperson insisted on a full investigation of the suspected poisoning of “an important opposition politician”, expressed concern for Mr. Navalny’s health and reiterated Germany’s offer of medical assistance.

At the request of his family and organised and paid for by Berlin-based NGO the Cinema for Peace Foundation, Mr. Navalny was airlifted to Berlin on 22 August 2020 for further medical treatment at the city’s Charité hospital. The doctors at the Charité diagnosed Mr. Navalny as suffering from severe poisoning and sent blood and urine samples to the Institute of Pharmacology and Toxicology of the Federal Armed Forces in Munich for further examination.

On 24 August 2020, Chancellor Merkel and Federal Foreign Minister Heiko Maas released a joint statement saying that “clinical findings indicate that Alexey Navalny was poisoned” and calling upon the Russian authorities “to fully investigate this act as a matter of urgency”.

After receiving the results of the examination of the blood and urine samples on 2 September 2020, the Federal Chancellor – in an unusual move – appeared in person before the media specially invited to the Federal Chancellery and made the following solemn statement:

“Early this afternoon, along with the Federal Minister of Finance and Deputy Chancellor, the Federal Foreign Minister, the Federal Minister of Defence, the Federal Minister of the Interior, the Federal Minister of Justice and the Head of the Federal Chancellery, I was informed about new developments in the Alexei Navalny case, and we discussed how to handle this new […] shocking information about the attempted murder by poisoning of one of Russia’s opposition leaders. That is why I think it is important for me to make a statement here now. […]

The Charité hospital asked specialist toxicologists from the Bundeswehr to test various samples from Mr Navalny. The Bundeswehr’s specialist laboratory has now reached a clear conclusion: Alexei Navalny was the victim of an attack with a chemical nerve agent from the Novichok group. There is unequivocal proof of the presence of this agent in the samples.

It is therefore clear that Alexei Navalny is the victim of a crime. The aim was to silence him. I condemn this in the strongest possible terms, also on behalf of the entire Federal Government.

I called the Federal President a little while ago and discussed this new information in the Navalny case with him. The Federal Government has also informed the parliamentary groups in the German Bundestag. In addition, the Federal Government will contact the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague.

The Russian Ambassador was informed of the results of the tests this afternoon at the Federal Foreign Office. We expect the Russian Government to make a statement on this incident. There are now very serious questions that only the Russian Government can and must answer. Alexei Navalny’s fate has attracted global attention. The world will be waiting for answers.

We are informing our partners in the EU and in NATO about the results of the tests. We will be discussing the matter together and will decide on an appropriate joint response in the light of Russia’s pronouncements. The crime committed against Alexei Navalny is an attack on the fundamental values and basic rights to which we are committed.”

Chancellor Merkel took a strong personal interest in the incident. This was also later confirmed when it became known that she had privately visited Mr. Navalny in hospital.

On 3 September 2020, the State Secretary of the Federal Foreign Office of Germany, Miguel Berger, sent a letter to the Director-General of the OPCW informing him that German experts had found that a nerve agent from the so-called Novichok group could be determined as the source of this poisoning of Mr. Navalny. Germany did not, however, share with the OPCW Secretariat “any detailed analysis results”. On the same day, the OPCW Director-General issued the following statement:

“Under the Chemical Weapons Convention, any poisoning of an individual through the use of a nerve agent is considered a use of chemical weapons. Such an allegation is a matter of grave concern. States Parties to the Chemical Weapons Convention deem the use of chemical weapons by anyone under any circumstances as reprehensible and wholly contrary to the legal norms established by the international community.

The OPCW continues to monitor the situation and stands ready to engage with and to assist any States Parties that may request its assistance.”

On 4 September 2020, a joint French-German communique also seized on the use of a chemical weapon, stating: 

“[The French and German Foreign Ministers] reiterate and reaffirm the fact that the use of chemical weapons, anywhere, anytime, by anybody, under any circumstances whatsoever, is unacceptable and contravenes the international norms prohibiting the use of such weapons. This new incident involving a Novichok nerve agent is profoundly shocking. 

The two Ministers reaffirm their full support for the absolute prohibition of the use of chemical weapons, the tenet underlying the Chemical Weapons Convention (CWC), whose states parties are obliged to ensure its full and complete implementation on their national territory. Together with their partners they will coordinate with the Organisation for the Prohibition of Chemical Weapons (OPCW) to consider the consequences of this incident and, if need be, will seek the support of this organisation.

It is as a first step essential that Russia, on whose territory this new violation of international law took place, urgently clarifies in full the facts and responsibilities behind this assassination attempt on a member of the Russian political opposition using a military-grade nerve agent that belongs to a group of agents developed by Russia.”

On the same day, the Federal Government sent sealed blood samples from Mr. Navalny to two specialised laboratories – one in France and one in Sweden – for examination. At the same time, Germany’s Permanent Representative to the OPCW sent the following letter to the OPCW Director-General:

“Your Excellency,

My State Secretary of the Federal Foreign Office Miguel Berger wrote to you on 03 September to inform you about the findings regarding the poisoning of the Russian citizen Mr. Alexei Nawalny.

In this context Germany would like to invite the Technical Secretariat to send a team of experts to Germany to provide technical assistance in accordance with Article VIII 38 (e). Therefore, Germany would like to invite the OPCW to send a team of technical experts to Berlin to collect samples from M. Alexei Nawalny. The samples’ transmission to OPCW reference laboratories should only take place after the consent by Germany.

I suggest that the Head of the OPCW Laboratory liaise directly with experts to arrange administrative and other relevant organizational matters to progress this urgent matter as quickly and as efficiently as possible.

I would be most grateful for the Technical Secretariat’s expertise and assistance on the matter.”

Upon the conclusion of an ad hoc privileges and immunities agreement with Germany in relation to the requested technical assistance visit (TAV) on 4 September 2020, the OPCW Secretariat deployed a team of experts to Berlin.

On 6 September 2020, the OPCW team collected biomedical samples from Mr. Navalny at the Charité hospital. On the same day, Federal Foreign Minister Maas stated that there were “many indications” that the Russian State was behind the poisoning of Mr Navalny. Asked about the evidence for this finding, the Minister stated:

“The deadly chemical weapon with which Navalny was poisoned has in the past been in the possession of Russian agencies. Only a very small group of people have access to Novichok. And the poison was already used by state agencies in the attack against ex‑spy Sergei Skripal. If the Russian side does not play its part in investigating the crime against Mr. Navalny, that would be another indication that the state was involved in the attack. Should there be nothing but evasion and smokescreens, we will have to assume that Russia has something to hide.”

During the regular government press conference on 7 September 2020, a spokesperson for the Federal Foreign Office once again called on Russia to investigate the incident, stating:

“The request to Russia to clarify the course of events and the background is not a request for mutual assistance, but a request that results from the fact that in the course of the treatment of Mr Navalny it was established that a prohibited chemical warfare agent had been used and thus a violation was committed against the Chemical Weapons Convention. So there is not only the suspicion that an attempted assassination attempt against a prominent Russian opposition activist has taken place, but also a serious violation of the Chemical Weapons Convention. The political call to Russia to clarify this process arises from this.”

On 11 September 2020, the Federal Government made it clear that it was turning to the OPCW rather than dealing directly with Russia because this was “not a German-Russian bilateral problem or issue” but an issue of international concern. The spokesperson of the Federal Government stated:

“It is an act that was perpetrated in Russia using a chemical nerve agent that is internationally outlawed from a group of nerve agents that are internationally outlawed. The OPCW is the logical point of call, and that is why we are in contact with the OPCW.”

While this statement was made in Berlin, the Permanent Representative of Germany to the OPCW requested that the OPCW Secretariat proceed with the analysis of the sampled collected from Mr. Navalny. The note verbale read:

“Your Excellency,

I’m referring to my letter dated 4 September 2020 inviting the Technical Secretariat to provide technical assistance in accordance with Article VIII 38 (e) in the case of Mr Alexei Nawalny.

Reacting to this request the Technical Secretariat sent a team of experts to Germany to collect samples from Mr Alexei Nawalny. I can now inform you that my government decided to request the OPCW to send the samples to OPCW reference laboratories for further analysis according to the rules of procedure of your organization.

Let me reiterate that my government is most grateful for the OPCW assistance on this matter.”

On 14 September 2020, following several days of denials from the Russian authorities that Mr. Navalny had been poisoned and amid allegations from the Kremlin that Germany had manufactured the toxicology reports, the Federal Government released a further statement on the Navalny case:

“[T]he presence of a chemical nerve agent from the Novichok group […] constitutes a severe violation of the Chemical Weapons Convention (CWC). The Federal Government has therefore requested that the Organisation for the Prohibition of Chemical Weapons (OPCW) help analyse evidence related to the Navalny case. This request for OPCW assistance was made in accordance with Article VIII 38 (e) of the CWC, which enables all States Parties to obtain technical assistance from the OPCW.

On this basis, the OPCW has taken test samples from Mr. Navalny and has made the necessary arrangements to have these examined in OPCW Designated Laboratories.

Moreover, the Federal Government has requested that France and Sweden as European partners conduct an independent examination of the German evidence, based on new samples taken from Mr. Navalny. The results of this examination by specialist laboratories in France and Sweden have meanwhile been released and confirm the German findings.

In efforts separate from the OPCW examinations, which are still ongoing, three laboratories have meanwhile independently of one another presented proof that Mr. Navalny’s poisoning was caused by a nerve agent from the Novichok group.

We once again call on Russia to make a statement on the incident.”

On 17 September 2020, the OPCW confirmed that its Technical Secretariat had received a request from Germany for technical assistance under Article VIII 38(e) of the CWC and that a team of experts from the Technical Secretariat had independently collected biomedical samples from Mr. Navalny for analysis by OPCW designated laboratories. At the regular government press conference on 18 September 2020, the question was raised of why Germany had addressed a request to the OPCW under Article VIII(38)(e) of the CWC rather than following the procedure in Article IX(2) of the Convention, which provides that “States Parties should, whenever possible, first make every effort to clarify and resolve, through exchange of information and consultations among themselves, any matter which may cause doubt about compliance with this Convention”. The spokesperson for the Federal Foreign Office explained:

“As already mentioned, Article VIII 38 (e) is the procedure which opens up the possibility of providing technical assistance in the event of a violation of the Chemical Weapons Convention – this is what we are talking about here. That is why we have focused on this Article VIII 38 (e), which gives the opportunity to appeal to the OPCW to investigate a violation of the Chemical Weapons Convention. […]

I believe that we have given the reason why we are going down this path, which we believe is the right one for this procedure. The OPCW transfers the samples to laboratories and thus offers entry into this process, which is then continued in the OPCW according to the rules of the Chemical Weapons Convention. The Federal Government is acting absolutely on the basis of the Chemical Weapons Convention and according to the rules and procedures that the OPCW establishes.”

One week later, the spokesperson for the Federal Foreign Office once again revisited the issue of Article VIII (38)(e) of the CWC, stating:

“Why did we involve the OPCW? Because it is the responsible international organisation, and this is an international and not a bilateral case. Because the use of the chemical nerve agent is a violation of the CWC. There are different procedures in the OPCW; we have chosen the route under Article VIII because it is not supposed to be a bilateral procedure, but an international procedure. Incidentally, Russia, for example, would also be free to choose this procedure as well.”

Rather than immediately choosing the procedure under Article VIII (38)(e) of the CWC, Russia instead responded by using the procedure under Article IX of the CWC, which provides that States Parties shall “consult and cooperate, directly among themselves, or through the Organization or other appropriate international procedures […] on any matter which may be raised relating to the object and purpose, or the implementation of the provisions, of this Convention.” Under this procedure, a State Party has the right to request that the OPCW Executive Council “obtain clarification from another State Party on any situation which may be considered ambiguous or which gives rise to a concern about its possible non-compliance with this Convention.” On 24 September 2020, the Executive Council, through the Director-General, forwarded a Russian request for clarification to the German representation at the OPCW, obliging Germany under the CWC to provide a response within ten days.

Later, however, on 1 October, Russia also sent a request for the Technical Secretariat to consider dispatching experts to help in Russia’s investigations. The OPCW responded that they were willing to provide assistance but needed more clarity from Russia as to what help was actually being requested under the CWC. As Russia did not comply with the legal requirements for a technical assistance visit under Article VIII (38)(e) of the CWC, none was ever carried out.

Upon receipt of the analysis results of Mr. Navalny’s biomedical samples, the OPCW Technical Secretariat shared its report on the technical assistance visit with Germany on 5 October 2020. Germany agreed to a summary of this report being published on the OPCW website. Germany, however, did not authorise the Secretariat to share the full report of the technical assistance visit with Russia; in particular it did not agree that the OPCW share the results of the laboratory analysis of the samples taken by the Secretariat from Mr. Navalny. The summary of the report confirmed that “A. Navalny was exposed to a toxic chemical acting as a cholinesterase inhibitor.” The biomarkers of the cholinesterase inhibitor had “similar structural characteristics” as toxic chemicals of the Novichok family listed in the Annex on Chemicals to the CWC, but the cholinesterase inhibitor in question was “not listed in the Annex on Chemicals to the Convention.”

The OPCW report prompted the Federal Government on 6 October 2020 to issue a press statement, saying that the OPCW’s findings

“agree with the findings already achieved by special laboratories in Germany, Sweden and France. This once again confirms the unequivocal evidence that Alexei Navalny was the victim of an attack with a chemical nerve agent from the Novichok group. This not publicly known nerve agent has not yet been officially listed by the OPCW.”

At the same time, the German representative stated at the 95^th session of the OPCW Executive Council in The Hague:

“Any poisoning of an individual through the use of a nerve agent is considered a use of a chemical weapon. And any use of a chemical weapon is a matter of international concern and wholly contrary to international norms. This is why partners from NATO, the European Union, and beyond have reacted to this use of a chemical weapon, which represents a threat to our common security and international law. […] The use of a chemical weapon makes the involvement of the OPCW imperative […].

My government is of the opinion that the case of Mr Navalny raises a number of serious questions that only the Russian Federation can answer. It is up to Russia—where the chemical attack occurred—to shed light on the incident, and to provide an explanation on how a chemical nerve agent came to be used in a reckless act against a Russian citizen on Russian soil.

Up to now, the Russian Federation has not provided any credible explanation. […] Germany categorically refutes allegations that the incident was ‘staged’. […]

We call upon the Russian Federation’s authorities to fully cooperate with the OPCW.”

Germany made it clear that it considered Russia responsible for the poisoning of Alexei Navalny. In response to a parliamentary question of whether the Federal Government had concrete evidence that Mr. Navalny was poisoned by or on behalf of the Russian Government, the State Secretary at the Federal Foreign Office, Miguel Berger, replied:

“The Russian Government has so far failed to provide any credible explanation for the incident. Against this background, the Federal Government determines that there can be no other plausible explanation for the poisoning of Alexei Navalny than Russian involvement and responsibility.”

On 15 October 2020, the European Union (EU), at Germany’s instigation, imposed sanctions against six Russian State officials, including the First Deputy Chief of Staff of the Presidential Executive Office and the Director of the Federal Security Service, as well as the State Scientific Research Institute for Organic Chemistry and Technology.

Germany held Russia responsible for a violation of its obligations under the CWC. The Convention prohibits several activities for States Parties in Article I, including, inter alia, that they “under any circumstances […]use chemical weapons” or “assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.” Chemical weapons are identified not by their intended use or by their listing in the Annex on Chemicals to the CWC, but rather by their effects. Chemical weapons include “toxic chemicals”: that is, “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals”. The chemical used to poison Mr. Navalny therefore qualified as a toxic chemical and, accordingly, as a chemical weapon in terms of the CWC. Furthermore, that this agent was not one of the Novichok agents listed in the Schedules of Chemicals annexed to the CWC did not alter the prohibition on its use under the CWC. Russia’s narrow interpretation of the Convention that the prohibition of chemical weapons is limited to those listed in the Schedules must be considered a minority view. In his opening statement at the 25th Session of the Conference of State Parties to the CWC on 30 November 2020, the Director-General of the OPCW stated with regard to the technical assistance visit to Germany earlier in the year:

“The results of the analysis confirmed that a toxic chemical of the Novichok family was found in Mr Navalny’s blood.

According to the Convention, the poisoning of an individual through the use of any nerve agent is a use of a chemical weapon, whether or not this chemical is included in Schedule 1 of the Annex on Chemicals to the Convention.”

Russia could thus be held responsible for a violation of the CWC if it “used” a chemical weapon; that is, if the poisoning of Mr. Navalny was attributable to Russia. Conduct can be attributed to a State of it is carried out either by a State organ or a person or group of persons acting on the instruction of, or under the direction or control of, the State. However, the use of a chemical weapon is not the only way in which a State can violate its obligations under the CWC. States are not only prohibited from using a chemical weapon, but must also prohibit natural and legal persons anywhere on their territory from using such a weapon and enforce such a prohibition. The deliberate failure to enforce this prohibition may constitute a breach of the primary obligation under Article I(1)(d) of the CWC not to “assist, encourage or induce” prohibited activities. This obligation clearly covers obvious activities such as funding the production of chemical weapons or providing technical assistance in their creation but may also include a failure to enforce domestic laws prohibiting the use and production of chemical weapons.

Germany did not produce any evidence of either Russian State involvement in the poisoning of Mr. Navaly or a deliberate failure to enforce the prohibition of the use of chemical weapons against natural or legal persons on its territory. It rather allocated responsibility on the basis that Russia had not provided “any credible explanation for the poisoning of Mr. Navalny in Russia” and had not investigated or disclosed in a swift and transparent manner the circumstances of this crime. International law, however, does not know of responsibility by inference.

Russia, on the other hand, argued that the German Government “actively counter[ed] Russia’s pre-investigation review of the situation with A. Navalny” by refusing to cooperate with Russian law-enforcement and health agencies. Thus, it pointed to the fact that Germany did not agree to the disclosure of the OPCW Technical Secretariat’s full report on its technical assistance visit to Germany and the analysis results of Mr. Navalny’s biomedical samples. It also claimed that Germany did not provide any assistance in accordance with the 1959 European Convention on Mutual Assistance in Criminal Matters and the additional protocols to it, although five requests from the Office of the Prosecutor General of the Russian Federation had been submitted to the Federal Office of Justice. Furthermore, it accused Germany of not cooperating with Russia as required by Articles VII(2) and IX(2) of the CWC.

Germany’s reluctance to cooperate directly with Russia in order to underline its position that the poisoning of Mr. Navalny was “not a German-Russian bilateral problem or issue” but a matter of international concern best dealt with by the OPCW may have been self-defeating. In the end, taking the matter to the OPCW has led nowhere. Under the CWC, the OPCW Executive Council is, inter alia, to consider concerns regarding compliance and cases of non-compliance with the Convention, address requests to relevant States Parties to take measures to redress concerns regarding compliance, and bring issues or matters of compliance to the attention of the Conference of States Parties. The Conference of States Parties, for its part, is tasked with overseeing the implementation of, and reviewing compliance with, the Convention. The Conference is also to take the necessary measures to ensure compliance with the Convention and to redress and remedy any situation which contravenes the provisions of the Convention. In the present case, the Executive Council has not formally considered or investigated concerns regarding Russia’s compliance with the Convention and has not brought the Navalny case to the attention of the Conference. It also has not taken any action in the matter at all. The Conference remained equally inactive. It has neither reviewed Russia’s compliance with the Convention, nor made any attempts to ensure Russia’s compliance with the Convention.

DOI: 10.17176/20220627-172703-0