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Technical assistance How Navalny’s poisoning could prompt the OPCW to carry out an emergency inspection in Russia

Source: Meduza
Kirill Kukhmar / TASS / Scanpix / LETA

September 19, 2020, marked the expiration date of the Russian authorities’ preliminary inquiry into the circumstances surrounding the sudden illness and hospitalization of opposition figure Alexey Navalny, who is currently being treated for poisoning in Germany. At this point, Russia’s authorities were supposed to decide whether or not to launch a criminal case. So far, there’s no indication that Russia will pursue a criminal investigation: officials continue to claim that there’s no evidence that Navalny was poisoned. Meanwhile, the authorities in Germany are confident that an attempt was made on his life using a Novichok-type nerve agent — in other words, a chemical warfare agent. That said, the German authorities have no jurisdiction when it comes to investigating the case, since the crime doesn’t fall within the scope of international criminal law (this would require more victims and military hostilities). However, there is a loophole. Germany has already appealed to the Organization for the Prohibition of Chemical Weapons (OPCW) “for technical assistance” and, if the organization is so inclined, it will most likely be able to seek an emergency international inspection in Russia to identify the perpetrators responsible for “the use of chemical weapons.”

The 2018 Salisbury poisonings led to an international ban on ‘Novichok’

At the end of 2019, the chemical formulas for four substances belonging to the Novichok group of paralytic nerve agents were added to Schedule 1 of the Annex on Chemicals to the Chemical Weapons Convention. What’s more, some of them were added to the list at Russia’s suggestion. This took place after a Novichok-class substance was used to poison former Russian spy Sergey Skripal and his daughter Yulia in Salisbury, England, in 2018. At the time, the OPCW didn’t review the Skripals’ case precisely because the substance used wasn’t banned under the Chemical Weapons Convention (although the organization did provide the British authority with “assistance” and officially analyzed samples from the crime scene). 

As of June 7, 2020, when the amendments to the Chemical Weapons Convention came into force, the use, production, and storage of substances from the Novichok group falls under the jurisdiction of the OPCW. In October, all of the convention’s signatory countries that produced these substances at one time or another, and/or planned to do so in the future (the document allows for the production of small amounts of banned substances for research purposes), are supposed to report the exact location of the facilities responsible for such work. In 2021, OPCW inspections will be carried out at these locations.

The convention also allows for unscheduled inspections at the request of any member state, if it suspects another signatory country of producing or using banned substances. However, it also directly requires that member countries not abuse their right to demand unscheduled inspections.

Germany has asked the OPCW ‘for technical assistance’ but there’s still a long way to go

On September 17, Germany appealed to the OPCW’s Technical Secretariat “for technical assistance.” The organization’s team of experts took Navalny’s biomedical samples for analysis (and, possibly, the water bottle from the Xander Hotel in Tomsk, which, according to Navalny’s aides and the German media, retained traces of the poison) and are supposed to officially confirm that these samples contain a banned substance. According to the OPCW, designated laboratories have already carried out the necessary tests, but the results have yet to be made public. 

Whatever the result, it has no direct link to a potential inspection — prior to submitting a request, the Chemical Weapons Convention requires the states involved to try and reach an agreement amongst themselves and resolve all concerns by exchanging information. As such, what probably awaits us is a long exchange of questions and answers between Berlin and Moscow through the OPCW. 

According to the convention, Germany (or any other “concerned” government) can ask Russia for a detailed response to case-related questions — for example, questions about who exactly used the chemical weapons and how it got into their hands. Russia will be obliged to respond within 10 days. And, in all likelihood, will reply that it destroyed all of its reserves of “Novichok” — this is exactly what Sergey Naryshkin, the head of Russia’s Foreign Intelligence Service, said on September 15. 

In all likelihood, Berlin will only request an OPCW inspection after going through these formalities. The request will automatically trigger an inspection. However, it can be blocked if three quarters of the OPCW’s Executive Council votes against it. This is where the current “technical assistance” from the OPCW is needed — confirmation of the fact that someone tried to poison a person in Russia with a banned chemical weapon would be a weighty argument in favor of carrying out a probe. Most likely, Russia will be unable to block the initiation of an inspection: during the OPCW’s investigations into chemical attacks in Syria, Moscow tried to prevent the organization from placing the blame on Bashar al-Assad’s regime, but its influence within the OPCW proved insufficient.

The country where the inspection has been appointed to take place is obliged to accept it and assist it in every possible way. The only limitation is that the inspection plan must clearly state which exact locations will be examined.

What will the inspectors be examining? And what does this mean for Russia?

First off, the developer behind the Novichok program will fall under suspicion — the State Research Institute for Organic Chemistry and Technology (GosNIIOXT). The Novichok development program was carried out in the 1980s and 1990s, but the institute is still working today. It’s involved in the destruction of chemical weapons (officially Russia doesn’t have any anymore) and other dangerous substances (for example, agricultural pesticides). The institute also has a testing ground in the town of Shikhany (Saratov Region), where, according Vil Mirzayanov, one of the creators of “Novichok,” they carried out tests of these military-grade substances (the second test site was in Uzbekistan, but it was closed in the 1990s). 

If Germany’s experts managed to obtain the substance that was used to poison Navalny in its “pure form” (for example, through samples taken from the water bottle from the Tomsk hotel), then the OPCW’s experts will be able to try and establish if it was produced at Russia’s GosNIIOXT. In addition, it’s likely that Russia will be required to confirm that the substances produced at the GosNIIOXT were, in fact, destroyed.

A report will be written on the results of the inspection, including all of the violations of the convention (if any are found), as well as any and all attempts to interfere in the probe. The report will have to be approved by a two-thirds majority of the OPCW’s Executive Council. 

That said, the OPCW has no ability to punish its members for non-compliance with the Chemical Weapons Convention. The case would have to be referred to the UN Security Council (where Russia has veto power). However, if the inspectors reveal that Russia — as a state — is responsible for violating the convention, this would become the basis for the United States and the European Union adopting a new package of sanctions against Russia — perhaps the most ambitious one yet.

Text by Dmitry Kuznets

Translation by Eilish Hart 

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