Published: 17 September 2024 Authors: Rohan Sinha and Stefan Talmon
On 15 December 2021, the Higher Regional Court of Berlin sentenced Russian national Vadim Krasikov (Vadim K.), alias Vadim Sokolov (Vadim S.), to life imprisonment for the murder of Tornike Khangoshvili (T. Ka.), a Georgian citizen of Chechen ethnicity, in central Berlin’s Kleiner Tiergarten park on 23 August 2019. The Court determined that Krasikov ‘had been commissioned by State authorities of the central government of the Russian Federation to eliminate the victim, among other things because of his role in the second Chechen war between 2000 and 2004 and as the leader of a Chechen militia.’ In an unprecedented act, the Court stated explicitly in its ruling that the murder ‘was an act of State terrorism.’ The Court held:
At a date on or before 18 July 2019, which cannot be determined more precisely, members of State agencies of the Russian Federation’s central government gave the accused the order to liquidate T. Ka. in Berlin. At that time, the accused was a member of the State security apparatus of the Russian Federation. In this function, the accused accepted and carried out the State order to kill. …
The motive for the assassination order was T. Ka’s opposition to the Russian central State and the governments of its autonomous republics of Chechnya and Ingushetia, as well as to the pro-Russian government of Georgia. The liquidation was intended as retribution for his role in the second Chechen war, including his involvement in the attacks on Nazran in 2004, as well as his participation in the other armed conflicts with the Russian Federation described. …
The crime was also intended to send a public message. Against this background, neither the State sponsors nor the accused shied away from committing the crime in broad daylight in a busy park in the centre of Berlin.
The judgment confirmed earlier findings of Russian involvement by the Federal Public Prosecutor General, which had led the Federal Foreign Office to expel two Russian diplomats on 4 December 2019. The Higher Regional Court of Berlin reached the conclusion that the murder constituted a ‘contract killing’ and was based on a ‘liquidation order by the central government of the Russian Federation. The Court based its finding on the following evidence:
a) State provision of a false identity to the accused
The creation of a false identity for the accused by the Russian authorities is particularly incriminating. Only about a month before the offence, they provided the accused with a false identity. The accused received a valid passport from the Russian authorities with the cover name Vadim S. He then travelled into the Schengen area with this official passport in order to commit the crime. The passport was intended to serve the accused as a kind of ‘cloak of invisibility’ to prevent his later identification as the perpetrator after the crime. In reality, however, this false identity did not fulfil its purpose. With the discovery of the defendant’s true identity, the false identity became a piece of evidence that now heavily incriminates the Russian State. …
b) Lack of cooperation after the crime
The Russian authorities’ lack of judicial cooperation after the crime also fits with this. … However, the Russian Federation did nothing to provide any evidence of the existence of Vadim S. Had it not been the author of the crime, there would have been a considerable incentive to do so. Instead, the risk of a diplomatic crisis with the Federal Republic of Germany was accepted and economic relations were endangered. . … The requests for legal assistance from the German investigating authorities asking for evidence of the existence of Vadim S. were largely ignored. … This behaviour of the Russian Federation after the crime only leads to the conclusion that the Russian Federation was not only aware of the accused’s false identity, but that it served precisely to conceal the commission of the crime in question and the underlying State order. …
c) Motive for the crime
Finally, a clear motive for the crime of the central government of the Russian Federation can also be established. The Russian Federation, through its representatives, made no secret, either before or after the crime, of the fact that it regarded the victim as an ‘enemy of the State’.
In this context, the Court found that the Russian State’s ‘desire for retaliation is most clearly evident in statements made by Russian President Putin’ during various press conferences. Examining these statements of President Putin relating to the Tiergarten murder, the Court concluded:
These statements by [President] Putin make it clear that he does not distance himself from what happened or from the involvement of Russian State agencies, but rather justifies the offence at length. This is not surprising given that current Russian law allows State authorities to kill terrorists, even abroad. According to Article 3(5) of the Law on Combating Terrorism of 6 March 2006 No. 35-FZ, as amended on 18 April 2018 with amendments of 29 March 2019, a counter-terrorism operation includes the neutralisation of terrorists, while Article 22 permits the killing of the person committing the terrorist attack. Article 5(1) No. 3 of the law authorises the President of the Russian Federation to decide on the deployment of special forces to combat terrorist activities outside the territory of the Russian Federation.
Russia’s involvement in the murder was also evidenced by the fact that Vadim Krasikov was a member of the Russian State security apparatus. The Court stated:
The Senate is also convinced that the accused carried out the offence in his function as a member of the State security apparatus of the Russian Federation. The Senate is convinced that this is primarily supported by the fact that the Russian State, as the author, will have been careful not to use a ‘mercenary’ from outside the State apparatus to commit an offence of such significance, particularly in view of the fact that it was committed on foreign soil. Rather, the author of the crime had to be absolutely certain of the loyalty of the agent. … The fact that the accused belonged to the State security apparatus is also supported by the professional and calm execution of the crime in the ‘Kleiner Tiergarten’, as the witnesses from the crime scene have testified.
What the Court called ‘an act of State terrorism’ – a term not defined in international law – was not just a crime by an individual but also a violation of Germany’s territorial sovereignty by the Russian Federation and thus a breach of international law. The Court stated:
Within its own territory, every State, as the holder of the monopoly on the use of force, has the option of punishing violations of its political and legal order itself. However, if the perpetrators of an alleged offence are located outside the State’s territory, international law requires the law enforcement authorities to submit an extradition request. There is no room for unauthorised retributive acts on foreign territory; they violate fundamental procedural guarantees and ultimately call into question the sovereignty and monopoly on the use of force of the territorial State. They are therefore not only unlawful and condemnable, but also highly reprehensible.
After the Court had delivered its verdict, Federal Foreign Minister Annalena Baerbock issued the following statement:
On 23 August 2019, a murder took place in the Kleiner Tiergarten park in Berlin. The man convicted today literally executed another man there in broad daylight with several shots. In his indictment, the Federal Public Prosecutor General came to the conclusion that this crime was committed on behalf of government agencies of the Russian Federation. This view was endorsed by the court in today’s ruling. This murder ordered by the State – as determined by the Court today – represents a serious violation of German law and of the sovereignty of the Federal Republic of Germany. We have therefore just summoned the Russian Ambassador for talks. The Ambassador was informed that two members of the diplomatic staff of the Russian Embassy are to be declared personae non gratae. I spoke on the phone yesterday to the Russian Foreign Minister, Mr Lavrov, and reiterated that we want and need an open and honest exchange with Russia. This is in our mutual interest. This must take place on the basis of international law and mutual respect. It is very clear that acts like the murder in the Tiergarten weigh heavily on this exchange. The Federal Government will do everything it takes to guarantee security in our country as well as respect for our legal system.
Russia rejected any State involvement in the murder. On 16 December 2021, the Russian Foreign Ministry issued the following statement:
The Russian side strongly believes that the guilty verdict brought in by the German court against the citizen of the Russian Federation Vadim Sokolov on December 15 in the case of the murder of Georgian citizen Zelimkhan Khangoshvili, former terrorist gang leader in the North Caucasus, in Berlin on August 23, 2019, is extremely biased and is clearly a case of an explicit political put-up job. We insist that the Russian citizen is innocent. He has the right to appeal to the Supreme Court of the Federal Republic of Germany against the unjust verdict.
We strongly reject the unfounded and far-fetched accusations which were concocted with the assistance of foreign security services and affiliated agencies claiming that Russian government bodies were involved in the murder of terrorist Khangoshvili, who lived in Germany with the knowledge of the German authorities. The only theory that was planted in Germany’s mainstream media shortly after the murder in August 2019 relied on falsified facts and unfounded speculations, posts from social media and online platforms that have lost credibility a long time ago as participants in almost all recent hybrid operations against Russia. They used testimony obtained under duress and fake evidence that was obtained, according to those who supplied it, with the use of illegal and even openly unlawful methods.
Interestingly, other legitimate theories related to the crime in Tiergarten Park in Berlin were neither considered nor explored by the investigators, prosecutors and the court.
We are deeply disappointed by the fact that the Government of the Federal Republic of Germany chose, under the guise of the above verdict, to perpetrate another unfriendly action against the Russian Federation and proclaim persona non grata two diplomatic employees of the Russian Embassy in Germany, who were not and could not have been involved in the Zelimkhan Khangoshvili case, which fact the German authorities are well aware of. Berlin should rest assured that Russia will respond proportionately.
On 20 December 2021, Russia followed up on its announcement and declared two members of the German Embassy in Moscow personae non gratae. On the same day, a spokesperson for the Federal Foreign Office commented:
Today, the Russian Foreign Ministry informed the German Ambassador in Moscow that two members of staff at the German Embassy in Moscow would be declared personae non gratae. According to the Russian side, this is a reciprocal measure in response to the declaration of two members of the Russian Embassy in Berlin as personae non gratae on 15 December. This step comes as no surprise; it is, however, in the Federal Government’s view, entirely unjustified. Last week’s decision by the Federal Government was an appropriate response to the finding by the Higher Regional Court in Berlin that the so-called Tiergarten murder was committed on behalf of Russian State agencies. This is a serious violation of the sovereignty of the Federal Republic of Germany. The Federal Government strives to engage with the Russian Federation on the basis of international law and mutual respect. Today’s decision by the Foreign Ministry of the Russian Federation places a renewed strain on our relations.
Although the Higher Regional Court of Berlin was solely concerned with the individual criminal liability of Vadim Krasikov under German domestic law, the Court’s assessment of the evidence relating to the circumstances of the crime incidentally established Russia’s State responsibility under international law. By sending a member of its State security services to carry out an assassination on German territory without the German government’s consent or, as the Berlin court called it, ‘without any justification under international law’, Russia violated Germany’s territorial sovereignty. Such a violation of international law would have allowed Germany to take countermeasures against Russia in order to induce Russia to comply with its obligation to make full reparation for the injury caused by the internationally wrongful act. As the violation of Germany’s territorial sovereignty had come to an end with the assassination, and as restitution was materially impossible, Germany could adopt countermeasures only to induce Russia to give satisfaction for the injury caused by either acknowledging the breach or making a formal apology. Neither of these two options was realistic. Considering the official denial by the Russian side, it was unlikely that an apology would be forthcoming. Germany therefore did what States usually do in such a situation; it resorted to an act of retorsion – an unfriendly but lawful act taken in response to another State’s unfriendly or illegal act.
Russia had been accused of overseas assassinations to intimidate and silence political opponents for almost two decades. A prominent example was the attempted poisoning of Sergei Skripal, a former Russian military officer and double agent for the British intelligence services, and his daughter in the United Kingdom in 2018. As a response, the British government expelled twenty-three Russian diplomats and called on its allies to do the same. In a coordinated act of international solidarity, twenty-eight other countries expelled a total of more than 130 Russian diplomats. Compared to the British response, the German government’s reaction to the ‘Tiergarten murder’ was remarkably timid. Germany’s response was probably influenced by its economic ties with Russia and the view that the solution of the international conflicts in Ukraine, Syria and Libya required continued cooperation with the Russian government.
The case took an unexpected twist on 1 August 2024, when after only five years in a German prison, Vadim Krasikov was released in a landmark prisoner swap organised between Russia and the United States. Russia released sixteen prisoners, including five Germans, in exchange for eight Russians held in the United States, Germany, Norway, Slovenia, and Poland. Vadim Krasikov was the most valuable person on whose release the exchange deal hinged. This led US President Biden to expressly thank the German chancellor for the ‘significant concessions’ made by Germany. Russian President Putin personally welcomed Krasikov upon his arrival at Moscow airport, and the Kremlin later confirmed that he was a serving officer of Russia’s federal security service FSB, employed in the agency’s elite and secretive ‘Alpha’ unit. While not officially acknowledging responsibility for the murder, this admission implicitly confirmed the findings of the Higher Regional Court of Berlin and showed that the Russian Foreign Ministry’s claims of the case against Krasikov being ‘extremely biased’ and ‘an explicit political put-up job’ were just a diplomatic smokescreen.
Category: International terrorism
DOI: 10.17176/20240918-020845-0
