today the Alexander Litvinenko inquiry, conducted by Sir Robert Owen reported (available here). Although there may not be many parallels at first glance between a ‘probable‘ State-sponsored murder by Plutonium poisoning of a ‘traitorous’ former agent, and a drone strike targeting a bomb-maker in rural Yemen, I think there are similarities should the Russians ever have to explain the legalities behind the killing.
If the Russians were ever to firstly, admit that the killing of Mr Litvinenko was State-sponsored, and secondly, to try and legally justify it, I think they would use a similar logic to that the US, and the UK has used in its Targeted Killing operations. That of ‘Unwilling/Unable Doctrine’.
This doctrine is a US invention, where the basic idea is to justify counter-terrorist operations by the US against terrorist groups in other countries, where the State is either unwilling, or unable to deal with the threat posed by said group to the US. For example, should an al-Qaeda affiliated terrorist operating out of Somalia pose an imminent threat to the US, the US logic would hold that seeing as the Somali government is unable to deal with terrorists operating from its territory, the US themselves would be able to deal with the threat themselves.
The UK also conveyed this logic when talking about the RAF drone strike against Reyaad Khan and Ruhul Amin on 21st. As the Prime Minister said in his address to Parliament:
‘We took this action because there was no alternative. In this area, there is no Government we can work with’
This is the basic tenet of the doctrine. If the Territorial State is Unwilling/Unable to deal with a terrorist groups, or Non-State Actor, posing an imminent threat to a Victim State, there is no alternative for the Victim State to protect their citizens, other than taking action themselves.
I would suggest, that there is an argument, the killing of Alexander Litvinenko could also be seen as being executed under an illegal form of this Unwilling/Unable doctrine. With the Russian government viewing Litvinenko as a traitor, and a criminal guilty of leaking State Secrets, they would of course like to have had him extradited to Russia for trial. However, Litvinenko having sought asylum in the UK, there was, of course, no chance of extradition for a politically motivated trial. Thus, the Russians could have turned to their only option to protect their State secrets (or prevent criticism, or out of pure revenge), that of killing Litvinenko. However, the reason this would definitely be an illegal usage of Unwilling/Unable doctrine is that it was motivated by political desire to silence Litvinenko, not for the protection of life.
Additionally, it is this politicisation that caused the killing to become an assassination, which are always illegal, rather than a targeted killing, which is only arguably illegal. The distinction is political gain. A Targeted Killing is not for political gain, but for protection of life. Or that is the reason that is given, at least.
Going back to Unwilling/Unable doctrine, it is shown in this fantastic submission to the Joint Committee on Human Rights inquiry on Drones and Targeted Killing, that Unwilling/Unable doctrine has not been deemed to be a rule of Customary International Law. Thus, even if the killing of Litvinenko was to protect life, it would technically be illegal anyway.
However, I would suggest that Unwilling/Unable doctrine is probably a rule of international law in the process of forming, although that’s just my opinion. I think that because international terrorism is no longer always State-sponsored, there needs to be some modification to the Nicaragua rules, which proclaim that the actions of a Non-State Actor must be attributable to a State, if a Use of Force performed in Self-Defence by a Victim State is to be performed legally, in black-and-white International Law. I don’t think this can go on, when the major terrorist groups threatening civilian lives, are not State-sponsored. However, that’s another blog in itself!
Until next time!
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