Bulgaria has reopened a 2015 investigation into the poisoning of a prominent arms dealer after it emerged that this case might be connected to the nerve agent attack on former Russian spy Sergei Skripal, who was poisoned last year in the U.K. This occurred after Bellingcat, a watchdog that lauds itself as “the home of online investigations,” released a report which suggested that a third, “unknown” Russian operative in the British case was also connected to the 2015 case in Bulgaria.
A previous blog post, authored by Maria O’Sullivan, noted that “On June 27, 2018, the Organization for the Prohibition of Chemical Weapons (OPCW) gained the power to assign blame for chemical weapons attacks.” In a hopeful final note, this blog post mused that the measure “was a large stepping stone towards international accountability.” However, despite the promise which this measure still holds for accountability, measures taken by Russia and other countries have stifled its implementation and, by consequence, its potential effectiveness. Principally, Russia has refused to provide funding to the attribution mechanism and has demanded the return of its share of the unspent budget. It defends this decision by noting that of 193 nations, only 82 approved of the measure, while 24, including China, India, Russia, and Iran, opposed it, and many abstained. It is also telling that the Russian who sits on the Executive Council of the OPCW, Vladimir Kuznetsov, is a convicted money launderer who has been charged with accepting bribes and undermining humanitarian operations. While there is presently no publicly available evidence of corruption within the OPCW involving Kuznetsov, it is irrefutable that he has been involved in similar crimes in the past. When taken in concert with evidence that Syrian and Russian sources have colluded to obstruct investigations by the OPCW into chemical weapon use in Syria, this evidence seems to strongly indicate that Russia is attempting to escape culpability for attacks which it is widely believed to have committed.
Despite clear evidence of Russian evasion of OPCW investigations, it is unclear whether the Russian agents involved in the poisonings of Emilian Gebrev used substances banned by the Chemical Weapons Convention. In fact, Bulgarian investigators said on February 11, 2019 that “No substances from the Chemical Weapons Convention’s banned list were found” in the case of Gebrev. Additionally, they have not yet found a connection between this case and the case of Skripal, though the investigation is still ongoing at the time of this writing. However, despite the lack of a connection between these cases and despite an extensive Russian information campaign, it is clear that Russia was involved in the poisoning of Skripal and potentially that of Gebrev. Hard evidence including surveillance images of individuals who appear to be GRU operatives near the site of Skripal’s poisoning has made it difficult for Russian denials to gain major traction.
Given the previously mentioned facts, it is necessary to ask: Are U.S. and EU. sanctions against Russia legitimate and do they conform to the legal strictures of the Chemical Weapons Convention? The Russian Foreign Ministry has stated that “the EU is demonstrating a disregard for existing international legal instruments, including the Chemical Weapons Convention, by abrogating to itself the right to attribute blame for chemical weapons incidents.” This shift seems to concede to OPCW the ability to assign blame, which Russia had previously rejected. Further, it does little to respond to the base level justification of EU actions, which is that Russians have been tied to a chemical weapon attack on an individual. Having reviewed the evidence, the author believes that Russian agents were clearly implicated in the attacks, which would justify response by OPCW. However, because the OPCW did not claim the unilateral right to attribute blame for chemical weapons incidents, U.S. and EU actions would only be problematic if they directly contradicted conclusions made by OPCW. In the absence of an OPCW decision, it is instructive to look to the respective domestic laws of the U.S. and the EU to see if any violation has occurred.
It appears as though the EU is operating within its domestic legal frameworks, since these actions were undertaken after a domestic “decision in October to broaden the sanctions regime.” The U.S. has a similar domestic obligation to sanction individuals connected to Chemical and Biological Weapons Control and Warfare Elimination Act. From a purely legal perspective, this Act allows the U.S. to take the actions which it has taken, since the President is authorized under this Act to sanction individuals which he determines to have violated international law.
In sum, the actions taken against Russian GRU agents in response to the poisoning of Sergei Skripal are legal from an international perspective and fall in line with the intentions and direction of the OPCW. Corruption and political maneuvering have rendered the OPCW far less capable of making and enforcing decisions in cases such as that of Mr. Skripal. As such, it seems that the question is not whether the OPCW should blame Russians for the poisoning of Mr. Skripal, but whether it will, given the large, potentially corrupting influence of Russians within the organization.