by John Helmer, Moscow, April 5, 2018
Empires are just like everything else going down the toilet. Bits always stick on the porcelain which require more flushing. Embarrassing bits.
Now in its fifth week since the poisoning of Sergei and Yulia Skripal in Salisbury on March 4, the bits that cannot be flushed away are producing an odour whose obviousness is embarrassing for Salisbury Hospital and the Organization for the Prohibition of Chemical Weapons (OPCW).
The hospital is treating the Skripals for their medical welfare and is required by hospital policy and UK law to be accountable to their next of kin. Their rights of access to and from the hospital are also required by European Human Rights Convention. The evidence now accumulating is that the hospital is detaining and isolating the Skripals against their will, preventing contact with their family. Requested to explain this and identify her legal authority, the response of the hospital’s chief executive, Cara Charles-Barks, is to stonewall.
The OPCW, comprising 192 states which have signed, ratified and enacted the Chemical Weapons Convention (CWC), is governed by a 41-member Executive Council, and administered by a Secretary-General and a staff based in The Hague. They represent the management arm of the Convention to ensure that everyone follows its provisions. But in acting on the Skripal case, the OPCW is voting in secret and violating the articles of the Convention itself. The OPCW’s spokesman, an American named Deepti Choubey, refuses to reply to questions claiming the right of confidentiality according to the Convention and the OPCW’s policy. When asked to identify which provisions of the Convention apply, and what is the text of the OPCW policy on confidentiality, Choubey’s response is to stonewall.
Yulia Skripal can hear and speak, according to the British state broadcaster BBC, but she is incommunicado. In Moscow, her cousin Victoria Skripal has told the Russian press she has repeatedly tried to telephone her cousin on the latter’s Russian mobile telephone, but that this device has been disconnected.
That was until Thursday morning, when Yulia Skripal reportedly initiated this call from the hospital to her cousin in Moscow. She was using what she called a “temporary telephone”.
Listen to the Russian tape-recording of the call here.
The BBC has broadcast an edited and excerpted version of this conversation, with English commentary over the Russian voices. Its translation of the Russian into English can be read here.
Victoria told Yulia: “Look, if tomorrow I get a [British] visa, I’ll come to you on Monday.” Yulia replied: “Vika, no-one will give you a visa.”
Amplifying on this, Yulia said: “that’s the situation at the moment, we’ll sort it out later… Later, we’ll get it sorted later, everything’s fine, we’ll see later… Everything’s fine, but we’ll see how it goes, we’ll decide later. You know what the situation is here. Everything is fine, everything is solvable, everyone is recovering and is alive.”
On Thursday, soon after the Moscow telephone-call was broadcast, the Metropolitan Police in London issued a statement. Its veracity cannot be authenticated, and its substance is contradictory. On the one hand, the release claims to have been “issued on behalf of Yulia Skripal”. On the other hand, the statement quotes Yulia Skripal directly. Why her words could not have been given to the press and public directly is not explained.
Because neither the Russian telephone recording nor the British police statement can be authenticated and verified independently, the only thing certain is that Yulia Skripal is not permitted by the hospital to speak directly in public. The implication is that she will also not be permitted to meet her cousin, and that, accordingly, it is unlikely the UK Government will allow Victoria Spripal to enter the UK. The British state broadcaster is reporting the contrary: “the Foreign Office said its Moscow embassy was expected to give Victoria a [British] visa, possibly on Thursday, and that she would be given full [Russian] consular help in the UK.”
The Russian Embassy in London has issued several statements that it has been unlawfully denied consular access to the Skripals at Salisbury Hospital. The British law requiring their contact and communication is in the enactment in November 1968 of the UK-USSR Treaty Number 92. Article 36 is explicit on the British law applying to Russian government officials in the Skripal case.
The preceding Article 35 of the treaty is also explicit in allowing the Russian Embassy to identify Victoria Skripal, or a British lawyer, or both together, to represent the Skripals in hospital, and to meet with them without obstacle or hindrance.
To date, Ambassador Alexander Yakovenko in London and the Foreign Ministry in Moscow have not attempted to exercise this entitlement. If the UK Embassy in Moscow refuses Victoria an entry visa, that action will be open for the Russians to engage a Queen’s Counsel to challenge under Article 35 in the High Court.
Another British law applies, too. Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — incorporated in the UK Human Rights Act of 1998 — orders that “no one shall be deprived of his liberty” except for six specified circumstances. These cover arrest on suspicion of crime, conviction by a court, or “for the prevention of the spreading of infectious diseases.” In all of these conditions, Section 4 of the Article allows access to the court for the person detained, or their legal representative:
This is also the habeas corpus provision in long standing British law, explained here.
The Salisbury Hospital’s chief executive Cara Charles-Barks was asked on March 31 to clarify the circumstances of the Skripals’ condition in the hospital:
Charles-Barks replied on April 4 through a spokesman. “In answer to questions 1,2 and 4 the [Salisbury Hospital] Trust is not commenting beyond what it has already said in public due to patient confidentiality. In response to question 3 it is the Trust’s standard procedure that patients who have capacity are asked whether they would like to receive visits and if so from whom. No-one is permitted access to patients without their consent. Due to patient confidentiality, the Trust is not able to enter into further correspondence about the clinical care of patients.”
This is a shutdown by the hospital of all communications regarding Yulia Skripal on the ground that she has given her consent, and that said, the hospital has the authority to safeguard her privacy. Neither the consent nor the privacy can be independently verified. Both claims by Charles-Barks are subject to UK law and the European human rights convention so that verification can be tested by sworn evidence in court.
If on the day after Charles-Barks’ email, Yulia Skripal made her telephone-call to Victoria Skripal on a telephone not her own, she was disputing her consent, and exercising her right to speak to her next of kin. Alternatively, as the BBC and London newspapers have intimated, the call was fabricated and she cannot communicate with her cousin because she doesn’t want to. Both possibilities lead to the same place – a test in the High Court in London of the evidence of the Skripals’ condition.
The police statement “on her behalf” implies what the hospital already claimed by putting the words in Yulia’s mouth on Metropolitan Police letterhead: “I hope that you’ll respect my privacy and that of my family during the period of my convalescence.” Since Victoria Skripal is indisputably “family”, and the telephone-call is now public, the standing of Victoria Skripal to speak on behalf her cousin and uncle, and to challenge the legality of the Skripals’ detention is also indisputable.
The embarrassingly obvious speck on the porcelain — Salisbury Hospital is in violation of British and international law. If this isn’t taken to court, it stinks.
There is also the odour from the OPCW headquarters at The Hague. On Thursday, at Russia’s request, the forty-one members of the Executive Council were called into a special session to discuss the Skripal case, and to consider a Russian proposal to implement Articles VIII and IX of the Chemical Weapons Convention (CWC). Read that here.
Article VIII sets down the rules, procedures and organizations for implementing the requirements of the Convention with which everybody, Russia and the UK included, agrees to comply. Article VIII requires the Executive Council to vote on “decisions on matters of substance by a two-thirds majority of all its members.” That’s 27 votes. Nowhere in this article is there a proviso for the Executive Council to keep its voted decisions secret.
Secrecy does not appear in the Convention at all except for agreements which members of the technical staff of the organization are required to sign covering their work and their access to classified information of member states.
Article IX sets out the requirement that when one member state suspects it has been attacked by a chemical weapon, possibly from or by another member state, it shall (that means must) cooperate with the suspected party.
The Russian proposal was for the Executive Council to enforce these provisions because the UK had been refusing to do so. The OPCW Secretary-General, Ahmet Üzümcü (right with US Secretary of State John Kerry), opened the session with a statement published on the OPCW website. Üzümcü, a Turk, was first appointed to the OPCW post in 2009. Before that, he served the Turkish Government in a variety of posts, including its embassy to NATO. Üzümcü has also been a member of the NATO staff in charge of expanding NATO military operations to the Russian frontier, as well as NATO operations in Ukraine and Syria. For a time also, he was the Turkish consul in the Syrian city of Aleppo.
On Thursday Üzümcü said the UK had invoked Article VIII to start an OPCW investigation of the Salisbury incident. He then described the OPCW inspection of several Salisbury sites and blood sampling of the Skripals in hospital. He also explained how the evidence was “split”, so that the UK received a part, and the OPCW kept the remainder.
“These samples,” Üzümcü claimed, “were sealed and brought to the OPCW laboratory on 23 March 2018. Samples were split in the presence of an expert from the United Kingdom, and the United Kingdom was provided with one split of each sample. The environmental samples were then delivered to two designated laboratories, and the biomedical samples were delivered to another two designated laboratories. The collection, splitting, and transportation of the samples were carried out in-line with the relevant procedures of the Secretariat. The chain-of-custody was fully maintained.”
Üzümcü’s use of the legal term “chain-of-custody” is odd because OPCW is not a judicial body; he is a Turkish national under Turkish law, and the unidentified OPCW personnel responsible for the “splitting” were supervised by the British. No independent verification of the chain of custody or protection against tampering was arranged or published. London lawyers say such evidence would be inadmissible in a British court. Üzümcü’s chain-of-custody claim, comments one, “has no legal merit but it does tell you which side he’s on.”
Although Russia has been officially accused by the British Government of the chemical attack in Salisbury, Üzümcü didn’t mention it. He also did not say that any of the evidence the OPCW has gathered and is analysing will be made available to the Russian Government.
“The results of the sample analyses are expected to be received by early next week,” Üzümcü told the Council. “Once the results of the analyses of the samples are received [by the Director-General], the Secretariat will produce a report on the basis of these results and will transmit a copy of this report to the United Kingdom. The report will reflect the findings of the designated laboratories. Access of other States Parties to the report will be subject to the agreement of the United Kingdom pursuant to the Confidentiality Annex of the Convention, the OPCW Policy on Confidentiality, and the consistent practice in relation to other technical assistance visits.”
It is now public information that the head of the UK Government’s Defence Science and Technology Laboratory, Gary Aitkenhead, refuses to identify a Russian source from the samples of the poison which the Porton Down institution received from government agents gathering them from the Skripals and the Salisbury police officer who was contaminated at the Skripal home; the Skripals’ BMW car; and from sites around the city where the Skripals stopped before their medical collapse. “We were able to identify it as novichok, to identify that it was military-grade nerve agent,” Aitkenhead said. “We have not identified the precise source, but we have provided the scientific info to the government who have then used a number of other sources.”
“It is our job,” Aitklenhead added, “to provide the scientific evidence of what this particular nerve agent is, we identified that it is from this particular family and that it is a military grade, but it is not our job to say where it was manufactured.”
A study by British academics of this class of nerve agents reported on April 1 that identifying a state origin from the samples examined by Porton Down, or by the OPCW, will be impossible because a large number of states have bench samples in their laboratories or are known to have synthesized them; and because the molecular structure of the agents breaks down swiftly in the blood and in the environment. “Blood tests for nerve agent detect only what is left of the molecule after it has bound to the receptor. The ‘leaving group’ (the rest of the molecule) cannot be identified. For sarin (and presumably for A-234 [Novichok]) the leaving group is a fluorine atom, and for VX the leaving group is a thiol.”
Üzümcü’s statement at yesterday’s session of the OPCW rules out the possibility that the OPCW report will publicly identify the molecular traces in the sampling which has been conducted, and that no source of manufacture will be identifiable.
Since Üzümcü told the Executive Council he was following the UK request to keep the OPCW evidence and its reported conclusion from public release or from Russian examination, the Russians, joined by Iran and China, called for a vote of the Council to require the UK to comply with the Article IX “cooperation” rule. Ahead of the vote, the OPCW published official member statements from several countries.
Fourteen of the members, including Russia (China did not join), declared: “We consider it necessary to ensure that this problem is solved exclusively within the international legal framework using the full potential of the CWC. The stake holders among States Parties of the OPCW should, in close cooperation with each other through constructive dialogue, find a solution for the current dangerous situation and prevent its further escalation.”
A separate Iranian statement explicitly invoked Article IX:
A statement from the European Union expressed “full confidence in the UK investigation and… UK’s collaboration with the OPCW Technical Secretariat, in full compliance with the Convention.”
The US statement avoided the issue tabled for the vote, announcing instead the US conclusion of the investigation:
The outcome of the session has not been officially reported by the OPCW. Press reports indicate that of the 41 members of the council, 3 were absent; 15 voted against the Russian proposal; 6 voted in favour; 17 abstained. According to the Russian representative, Alexander Shulgin, “unfortunately, we didn’t manage to get the qualitied majority of two-thirds of the votes, which would mean adoption of our resolution. The Britons, Americans and – following their example – EU and NATO member-states and some the Asian allies of the US voted against it. It’s noteworthy, however, that 23 countries refused to associate themselves with that viewpoint. They either voted for our proposal or refrained from voting. And this is a half of all the members of the Executive Council.”
The Foreign Office in London issued this tweet:
To clarify what had transpired at the OPCW council session, Üzümcü’s spokesman was asked to identify the member states which had absented themselves from Thursday’s session; and to name the countries voting against the resolution; for the resolution; and those abstaining. She was also asked to clarify the claim by Üzümcü, reported to the Council, that denial of access of state members of OPCW to the Skripal investigation report is founded on the Confidentiality Annex of the Convention. To which specific section or sub-section of the Annex was the Director-General referring? the spokesman was asked.
The spokesman of the OPCW is Deepti Choubey, an American who has worked for a series of the US funded and US directed think-tanks, according to this resume. Her media credits, she reports, include “CNN, MSNBC, Russia Today TV, Voice of America, numerous foreign outlets, National Public Radio, BBC, ABC Radio and CBS Radio…the Washington Post, Los Angeles Times, and U.S. News and World Report.” The British Government was one of the principal financiers of the think-tank on chemical and nuclear warfare where Choubey worked between 2010 and 2012. For more on Choubey’s background, read this. For her paymasters, click.
Choubey issued a tweet to report Thursday’s session; this republished the official statements already posted on the OPCW website:
She refused to respond to a telephone call or to emails setting out the questions. Instead, an unsigned email was despatched to say:
Choubey refuses to clarify what provision of the Chemical Weapons Convention makes the secrecy of Council votes lawful. The Confidentiality Annex of the Convention also fails to provide for the secrecy of Council votes. The annex covers mostly the technical and investigative work of the OPCW. It is silent regarding cases where one OPCW member states accuses another member state of a chemical weapons attack on its territory and citizens, as the UK, the US and the European Union are charging Russia.
Read the Confidentiality Annex carefully here.
In short, the UK can order Director-General Üzümcü, a NATO ally, to accept its “designation” for information it wants to keep secret from Russia, including the names of the member states which refused to agree with the UK in the vote to implement Article IX of the Convention, and make the OPCW investigation of the British allegations open, transparent, accountable to the Convention itself.
This is what Üzümcü did. When he told the Council in his published statement “the United Kingdom has expressed its wish to be as transparent as possible”, he was faking. By telling Choubey to stonewall, he turned the Convention into a deadletter.
As bits on the porcelain go, this one is too big to flush away.