The Poisoning of Alexander Litvinenko and the Geographical Scope of Human Rights Law

On January 21, a British investigation concluded that Russian President Vladimir Putin “probably” approved the poisoning of former Russian spy Alexander Litvinenko, who died in a London hospital in November 2006. Litvinenko was poisoned with Polonium-210 seemingly poured into a cup of tea by two Russian operatives. A former FSB intelligence agent, he had fled to the UK in 2000, where he was later granted asylum and eventually British citizenship. From the UK, he was a harsh critic of the Russian government and seemed to have entered into some sort of relationship with the British intelligence service, MI-6.

The British government responded to the “disturbing” report by stating that the Russian operation constituted a “blatant and unacceptable breach of the most fundamental tenets of international law and of civilized behavior.” If the operation and poisoning of Litvinenko were indeed sanctioned by Putin and the Russian state, it clearly constitutes a violation of British sovereignty. As the Permanent Court of International Justice — a predecessor to the UN’s International Court of Justice — noted in the seminal Lotus case, failing the existence of a permissive rule to the contrary, a State “may not exercise its power in any form in the territory of another State.”

A more vexing question, however, relates to Russia’s responsibilities under the European Convention on Human Rights (ECHR) and the obligation to protect the right to life in Article 2 of that Convention. The right to life encompasses both a substantive right not to be unlawfully killed and a procedural duty on the part of the State to conduct an investigation of the circumstances that led to the deprivation of life.

For the ECHR to apply, Litvinenko would have had to be under Russian jurisdiction at the time of his poisoning. The determination of whether or not that was the case raises broader questions about the extraterritorial scope of human rights treaties on issues that extend far beyond a single assassination of a former spy.

The crux of the ECHR question is that Litvinenko was poisoned outside Russian territory. Pursuant to Article 1 of the ECHR, State Parties shall secure the rights and freedoms of the convention to “everyone within their jurisdiction.” So, was Litvinenko within Russia’s jurisdiction when he was poisoned?

The Strasbourg Court’s case law on the extraterritorial reach of the ECHR is highly complex and, at times, even contradictory. Following the current leading case on the extraterritorial application of the ECHR — the Grand Chamber’s 2011 judgment in Al-Skeini v. the United Kingdom that arose from the British and American 2003–2004 occupation of Iraq — Litvinenko does not appear to have been within Russian jurisdiction for the purposes of the ECHR.

In Al-Skeini, British forces deployed to Basra had killed five individuals during a patrol and a sixth individual had been mistreated and killed by British forces in a British detention facility in Basra. While everybody agreed that the individual who was killed in the detention facility was within British jurisdiction at the time he was killed, the situation was more uncertain with regard to the five Iraqis who were killed by the patrol. Although the Court noted that extraterritorial application of the ECHR is exceptional, it did list a number of instances where the case law of the Court nevertheless indicates that the acts of a State outside its territory fall within the concept of “jurisdiction” under Article 1 (paras. 131–39).

For present purposes, the Court’s most interesting statements in Al-Skeini were that a State exercises jurisdiction over an individual abroad when that individual is located within an area where the State has “effective control” or when the individual is taken into the custody of State agents abroad. In addition, the Court concluded that the five Iraqis who were killed by UK forces were also within UK jurisdiction because the United Kingdom quite exceptionally fulfilled certain “public powers normally to be exercised by a sovereign government.”

None of the exceptions listed in Al-Skeini is relevant to the poisoning of Litvinenko. Russia did not have effective control over any part of London, it did not exercise public powers in the city, and it seems far-fetched to conclude that Litvinenko was in custody of the Russian agents when he was poisoned.

To argue that Litvinenko may be considered to be within the “jurisdiction” of Russia because his assassination was in all likelihood planned on Russian territory does not seem convincing. After all, there is usually a link between commanders and decision-makers who may be physically located within the state and those state representatives (agents, soldiers, etc.) that act on their commands and orders abroad, and Strasbourg has not yet found that the mere planning of extraterritorial activities is sufficient to close the jurisdictional gap.

As the case law from Strasbourg currently stands, then, a State is not bound by the ECHR in relation to targeted operations — including assassinations — that are aimed at an individual located outside the territory of the State, unless one of Al-Skeini’s exceptions are met. In practice, of course, this also means that the ECHR does not reach the current airstrikes in Syria conducted by members of the Council of Europe. It would similarly not scrutinize an American-style drone program of targeted killings.

To conclude that Russia was not in breach of its obligations under the ECHR when its agents poisoned Litvinenko may, however, be hard to reconcile with the (allegedly) universal character of human rights. And it may seem hard to understand why the Court continues to insist on an interpretation of its jurisdictional clause that makes it possible for a State to get away with outrageous conduct abroad that would constitute a clear and serious violation of its human rights obligations if committed on its own territory. It will, therefore, be very interesting to see how Strasbourg deals with the application launched against Russia by Litvinenko’s widow. While the complaint was launched in 2007, the case is seemingly still being investigated by the Court.

Looking toward the future of this body of law, Marko Milanovic argued in 2011 that Strasbourg should distinguish between negative and positive obligations and that a State should always — regardless of its exercise of jurisdiction within the meaning of Article 1 — be bound by its obligations under the ECHR in relation to its negative obligations. This would mean that a State would always be obliged to refrain from infringing on an individual’s rights, such as the right to life, if it could not offer an adequate justification, even if that individual is outside of its territory. The State would not, however, be under a duty to secure and ensure the human rights of those living outside the country, including not being obligated to offer effective protection from harmful acts perpetrated by private actors.

But while one can be sympathetic to Milanovic’s argument, it would also — as he himself acknowledges — require a fundamental shift in the approach taken by the European Court of Human Rights.

A more realistic approach to the issue of extraterritorial targeted operations and human rights obligations is one that has been proposed by David Kretzmer. In a 2005 article, Kretzmer argues that some of the substantive norms in human rights treaties have become unchallenged norms of customary international law, including the duty to respect the right to life. Thus, a “state’s duty to respect the right to life … follows its agents, wherever they operate.” Under this approach, regardless of the geographical reach of the ECHR, Russia violated its human rights obligations under customary law when it poisoned Litvinenko.

In practice, of course, the extraterritorial scope of human rights treaties is not just of relevance to operations like the poisoning of Litvinenko. Since the Snowden revelations, for example, the question of whether human rights conventions apply to surveillance programs run by the NSA and GCHQ has increasingly been debated (e.g., here and here).

Since the US is not a party to the ECHR, the issue of surveillance and human rights raises the questions of the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR) to which the United States is a party. As is well-known, the US remains of the view that it is not bound by the ICCPR outside US territory (this contrasts with the ICJ’s advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory).

It is, however, not clear if that (controversial) position can be maintained in the long run, and judging by a leaked 2010 memo by then-State Department Legal Adviser Harold Koh, the US is well-aware of the wide-spread international opposition to its position on the extraterritorial application of the ICCPR.

Russia’s “probable” poisoning of Alexander Litvinenko in London has revealed that there are holes in the human rights protections currently offered by the ECHR. It is too early to tell if Strasbourg intends to fill in those holes by expanding the territorial reach of the Convention. What is certain, though, is that the debate about the extent to which a state like Russia should be bound by its human rights obligations when it assassinates its political opponents abroad ought to be of interest not only to States Party to the ECHR, including Russia, but to all States whose activities raise questions about the extraterritorial application of human rights. 

About the Author(s)

Anders Henriksen

Associate Professor of Public International Law at the Faculty of Law at the University of Copenhagen