by Alexander Mercouris at the Duran
It is becoming increasingly difficult for the British authorities and for the British media to deny that ‘due process‘ – ie. the well-established system of rules for conducting fair and impartial trials and investigations in order to determine questions of guilt or innocence – are not being followed by the British authorities in the Skripal case.
Here are some of the violations of due process the British authorities which in my opinion the British authorities are committing:
(1) The British government is interfering in the conduct of a criminal investigation, with Prime Minister Theresa May and especially Foreign Secretary Boris Johnson pointing fingers at who they say is guilty (Russia) whilst the criminal investigation is still underway;
(2) The British government has said that unless Russia proves itself innocent within a specific time the British government will conclude that it is guilty. As I have explained previously this reverses the burden of proof: in a criminal case it is the prosecution which is supposed to prove the defendant’s guilt, not the defendant who must prove his innocence;
(3) The British government refuses to share with Russia – the party it says is guilty – the ‘evidence’ upon which it says it has concluded that Russia is guilty, the evidence in this case being a sample of the chemical with which it says Sergey and Yulia Skripal was poisoned.
This violates the fundamental principle that the defendant must be provided with all the evidence against him so that he can properly prepare his defence;
(4) The British government is not following the procedure set out in Article IX (2) of the Chemical Weapons Convention to which both Britain and Russia are parties. This reads as follows
States Parties should, whenever possible, first make every effort to clarify and resolve, through exchange of information and consultations among themselves, any matter which may cause doubt about compliance with this Convention, or which gives rise to concerns about a related matter which may be considered ambiguous. A State Party which receives a request from another State Party for clarification of any matter which the requesting State Party believes causes such a doubt or concern shall provide the requesting State Party as soon as possible, but in any case not later than ten days after the request, with information sufficient to answer the doubt or concern raised along with an explanation of how the information provided resolves the matter.
This says clearly that in a case like the Skripal case the British authorities should have sent a request for information to the Russian authorities, who would then have had up to ten days in which to respond.
Instead the British demanded a Russian reply within 36 hours, and said they would assume Russian guilt unless a response was provided which satisfied them, even though the Chemical Weapons Convention does not give the British government the right in a case like Skripal to say based on such a reply that the Russians are guilty or not.
There has been an attempt to argue that the British disregard of the procedure set out in Article IX (2) does not breach the Chemical Weapons Convention.
I will set it out the British position as it appears in an article in The Conversation
In fact, on a closer reading, it’s clear that the obligation set out in Article IX(2) is not of an absolute character. It requires state parties to “make every effort” to clarify and resolve doubts. This duty is framed in the language of “should”, rather than “shall”, and is engaged only “whenever possible”. The terms of the clause therefore enable a state to adopt alternative measures should the circumstances so warrant.
After the Salisbury incident, one of the UK’s responses was to call a meeting of the UN Security Council. While Russia vehemently opposed this move as being contrary to the Chemical Weapons Convention, none of the other members of the Security Council, all of which are also signatories of that treaty, shared this view.
It is also important to be clear about the scope of Article IX(2). The provision deals with the clarification of doubts surrounding compliance with the Chemical Weapons Convention. However, the British government had already concluded that it was highly likely that Russia was responsible for the incident. Based on the identification of the nerve agent involved, named as Novichok, the fact that Russia has produced the agent in the past and in the light of Russia’s past conduct and current intent, it was not unreasonable for the UK government to come to this conclusion, in line with the standards of proof applicable in international law in similar circumstances.
I find this wholly unconvincing and I am sure the vast majority of international lawyers would do so also.
What this argument essentially says is that the British are entitled to disregard the procedure set out in Article IX (2) because they have already concluded in advance of their enquiry to the Russians on the basis of evidence which they are not prepared to share with the Russians that Russia is ‘highly likely’ to have been guilty of carrying out the attack on Skripal.
That effectively admits that the ‘request for information’ – ie. Theresa May’s ultimatum to Russia – was not made in good faith and was not really a genuine ‘request for information’ at all, but was rather a rhetorical device intended to make it easier for the British government to pronounce Russia guilty without providing further proof.
Far from providing a justification for ignoring the procedure set out in Article IX (2), that looks to me more like an admission that the British have not been acting in good faith, which of course is not merely a violation of the Chemical Weapons Convention but of due process.
(5) The British authorities are denying the Russians consular access to Yulia Skripal, though she is a Russian citizen who the British authorities say was subjected to a criminal assault on their territory.
This is a potentially serious matter since by preventing consular access to Yulia Skripal the British authorities are not only violating the interstate consular arrangements which exist between Britain and Russia, but they are preventing the Russian authorities from learning more about the condition of one of their citizens who has been hospitalised following a violent criminal assault, and are preventing the Russian authorities from carrying out their own investigation into the assault on one of their citizens which the British authorities say has taken place.
I would add that this obstruction of Russian consular access to Yulia Skripal has gone almost entirely unreported in the British and Western media.
Needless to say, if the situation were reversed and it was the Russian authorities who were denying the British consular access to a British citizen who had been hospitalised following a criminal assault in Russia, I have no doubt that the British and Western media would be far less reticent about it.
In truth the violations of due process are so egregious that sections of the British media have been in effect forced to admit that they are happening, and are now trying to justify them.
Here for example is what Jonathan Freedland in the Guardian has said:
But those pleas to delay judgment point to a wider error: a misreading of the nature of the contemporary Russian state…..
The error here is to assume that Moscow’s attitude to evidence and due process is the same as that of nations still governed by the rule of law. But in Putin’s Russia, lying has long been a routine and integral part of statecraft. No matter how copious the evidence, Putin will think nothing of denying it….
What meaning does “due process” have when dealing with such a regime? Moscow would not cooperate in good faith with an investigation by the international chemical weapons watchdog, offering up evidence that might be incriminating. They would see such an inquiry instead as a useful delaying tactic, one that would allow them to issue yet more denials, wild counter-accusations (“Salisbury was an MI5 plot to distract from Brexit”) and obfuscation – disseminated either through their RT propaganda TV station or by their army of bots and online enablers. That way they could generate yet more of the fog of doubt and confusion that they believe undermines the west’s confidence and strengthens them. This is the Putin modus operandi: spread doubt until the public grows exhausted and concludes that the truth is unknowable.
(bold italics added)
More pithily an editorial the Financial Times says the same thing
President Vladimir Putin’s government uses a well-worn playbook after it commits an international outrage. The first Russian response is denial mixed with the propagation of a variety of implausible alternative explanations….
The Kremlin then tries to blunt the response by wrapping its accusers up in procedure. The game is to confuse the narrative, delay the international response — and demonstrate to the Russian people and the wider world that the Kremlin can act with impunity.
(bold italics added)
The first thing to say about these articles is that they are an admission that in the Skripal case due process – ie. proper procedure in a case like this – is not being followed.
The second thing to say is that they show a startling failure to understand the purpose of due process.
Due process in a criminal investigation is not a favour to the defendant. It is the way to arrive at the truth.
That is why in England in criminal appeals judges say that convictions in cases where due process has not been followed are ‘unsafe’. What they mean is that because due process was not followed the court cannot be sure that the case which has been made against the defendant has been made out.
It follows that doubts about a defendant’s good faith (the reason Jonathan Freedland and the Financial Times are giving for disapplying due process in cases involving Russia) can never be a reason for disapplying due process.
It is ridiculous to say – as Jonathan Freedland and the Financial Times are in effect saying – that due process should be disapplied simply because they believe the defendant in this case – ie. Russia – is lying and is never going to admit its guilt.
Defendants often lie when cases are brought against them. If they did not there would be no reason to have trials.
Defendants very often go on denying their guilt even when courts have convicted them. That is not a reason to deny them due process and their right to state their defence.
Stripped of their bogus arguments, what Jonathan Freedland and the Financial Times are saying is that when Russia is accused of something it has no right to defend itself.
That is an astonishing and deeply troubling thing to say.
It also looks to me rather like an admission that in the Skripal case the British authorities do not have the evidence to prove that their accusation against Russia is true.
That does not surprise me because the British authorities have apparently been unable to provide even their closest allies with evidence which proves that their accusation against Russia is true.
Here is what Der Spiegel says the British have told the Germans about the evidence – or lack of evidence – they have in the case
The British didn’t even tell their German counterparts which variation of the nerve agent they believe was used. Western intelligence experts suspect that it was Novichok of the A-232 variety, which is fluid enough to be used as a spray.
The vocabulary used by the UK and its allies indicates that British intelligence officials are highly confident in their assessment. Yet although it is clear which substance was used and that it very likely came from Russian stockpiles, there is no definitive proof that the Russian state was behind the attack, according to a senior German official on Thursday evening. The official has read through all of the documents that have thus far been presented. He said that intelligence officials are viewing the evidence laid out in those documents — several tightly printed pages — as a “compelling chain of clues.”
(bold italics added)
In other words the British case against Russia in the Skripal case is no more than surmise (a “compelling chain of clues”).
It is not based on evidence because as of Thursday 15th March 2018 (when the Germans were given the facts) there was none.
What of the argument Jonathan Freedland and the Financial Times both make – echoing things the British government has said – that concrete proof of Russian guilt in the Skripal case is not needed because Russia’s guilt can be presumed from Russia’s previous conduct.
Putting aside that there are conflicting opinions about Russia’s previous conduct, it is actually a further breach of due process to declare someone guilty not on the evidence in the case itself but purely on the basis of their previous conduct.
Putting that aside there have been at least three cases since The Duran was founded in May 2016 when declarations of Russian guilt which were confidently asserted proved on proper examination of the evidence to be untrue.
1) On 19th September 2016 an attack on a humanitarian convoy in Syria was widely blamed by Western governments and by the Western media on Russia. Yet a UN inquiry headed by an Indian military officer effectively cleared Russia of responsibility for the attack.
2) In a succession of reports Professor Richard McLaren has claimed to have found proof of a gigantic government organised state sponsored doping conspiracy amongst athletes in Russia.
These claims have been enthusiastically repeated by the Western media, and led to partial bans on Russian participation in the 2016 Summer Olympics in Rio de Janeiro, and in the 2018 Winter Olympics in PyeongChang, and to a complete ban on Russian participation in the 2016 Summer Paralympic Games in Rio de Janeiro.
However the Schmid Commission, which on behalf of the International Olympic Committee, carried out a thorough review of Professor McLaren’s claims of a government organised state sponsored doping conspiracy in Russia, concluded that contrary to what Professor McLaren has said those claims have not been proved, and that they are most likely untrue.
3) The third case is more controversial, but I personally have no doubt that the same applies. Since at least the summer of 2016 it has been repeatedly and confidently claimed that there was a vast conspiracy between Russia and Donald Trump’s campaign to steal the US Presidential election from Hillary Clinton and to swing it to Donald Trump.
The House Intelligence Committee, having investigated this claim in detail, now says it is untrue.
Though the Mueller investigation, which is also looking in this claim, has yet to report, none of the indictments it has issued suggest that this claim is true, whilst it seems the Senate Intelligence Committee, which is also investigating the claim, is also going to report that the claim is untrue.
Here we have three examples of claims of wrongful activity confidently made against Russia proving to be untrue. Why then assume that the claim of wrongful activity made against Russia in the Skripal case is true?
Obviously presumptions of guilt based on claims of previous Russian misconduct are wrong and unsafe, and that whole approach must be abandoned as both flawed and ethically wrong.
I would finish by repeating a point I have made many times before.
Underpinning the regular allegations made in the West about Russian misconduct including the ones now being made in connection with the Skripal case is the intense Western prejudice against Russia and against all things Russian.
I discussed this Western prejudice against Russia and Russians in detail in a long article The Duran published on 12th October 2016, and I discussed it again more recently in articles I have written about a recent report by a group of US Democratic Party Senators targeting Russia, and about the Hollywood film Red Sparrow which is currently on general release.
Now we see further examples of this prejudice with the demand in the Skripal case that Russia be denied the right to defend itself, a right which every other defendant accused of a crime has.
Personally I cannot see a more straightforward example of prejudice against Russia than that.
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