Germany is outraged over Alexey Navalny’s poisoning, but has no jurisdiction when it comes to his case

One week after Russian opposition politician and anti-corruption activist Alexey Navalny was hospitalized, concerns are rising that his poisoning may never be officially investigated. On August 27, Russia’s Attorney General’s Office stated that “no information evidencing deliberate criminal acts against Navalny has been established.” Meanwhile, Navalny is still in intensive care at the Charité Hospital in Berlin. But even if the doctors there are able to prove that a chemical weapon was used to poison him, Germany’s Attorney General’s Office won’t be able to initiate criminal proceedings, nor will it be able to open a case for attempted murder. Meduza breaks down why the Russian authorities are the only ones who can launch a criminal case over Navalny’s poisoning.

What are they saying about Navalny’s case in Germany?

One day after Alexey Navalny was transported from Omsk to the Charité Hospital in Berlin, the doctors there stated that he showed clinical signs of poisoning with a substance from the group of cholinesterase inhibitors. This group of substances includes, among other things, organophosphate chemical weapons — nerve agents expressly prohibited by the UN Chemical Weapons Convention.

The clinic has yet to identify the exact substance used to poison Navalny, but, according to a joint investigation by the German weekly Der Spiegel and the investigative outlets The Insider and Bellingcat, after Navalny’s hospitalization doctors at the Charité Hospital reached out to the doctors in Bulgaria who treated arms dealer Emilian Gebrev after his poisoning in 2015. He was allegedly poisoned with a Novichok-class chemical warfare agent developed in the USSR. The British authorities believe that a substance from this same group was used in the attempted murder of double agent Sergey Skripal and his daughter Yulia in the city of Salisbury in 2018. Officers from Russia’s GU (the Main Directorate of the General Staff of the Armed Forces, formerly known as the Main Intelligence Directorate, or GRU) are accused of involvement in both poisonings.

On August 24, German Chancellor Angela Merkel personally demanded a “comprehensive investigation into Navalny’s poisoning” from Russian President Vladimir Putin. And, according to Bloomberg, she was frustrated by the Putin’s response. Russia’s apparent stance was made public on August 27, when the country’s Attorney General’s Office announced that it saw no reason to open a criminal case over Navalny’s hospitalization.

If chemical weapons are banned worldwide, why can’t Germany launch a criminal case?

The UN Chemical Weapons Convention bans the production and use of these substances, but only by states. The convention applies to its signatory countries (North Korea, Egypt, and South Sudan haven’t signed on) and obliges them not to produce or use these weapons, not to transfer them to anyone else, and to destroy their stockpiles. Russia reported the destruction of all such ammunition in 2017. At the same time, the convention only applies to those substances included on a special list of banned weapons. “Novichok” was only added to the list in November 2019 and this change came into effect in May 2020. As such, this means that even if the Russian authorities’ involvement in poisoning the Skripals were proven, they can’t be held liable for possession of this substance in 2018. 

In Navalny’s case, it would also have to be proven that the Russian government had organized an assassination attempt. The convention doesn’t impose any restrictions on private organizations or individuals. 

As a rule, criminal cases against private individuals are initiated by the country on whose territory the crime took place. If the crime took place on foreign territory, a country can still launch a criminal case if the victim or the offender is one of its citizens (but only if the perpetrator has yet to be convicted in the place where the crime was committed). Navalny is a Russian citizen, and the potential poisoning took place on Russian territory. Therefore, he has no connection to Germany, besides the fact that he is receiving medical treatment there. 

However, in recent decades, some crimes committed by individuals or private organizations can fall under international criminal law, which allows for opening a criminal case against the citizen of any country who has committed a crime anywhere. This entered into force in 2002, in accordance with the Rome Statute of the International Criminal Court. 

Provisions of the Rome Statute are included in the legislation of many countries, which recognize the supremacy of international law. In 2002, Germany adopted a special Code of Crimes Against International Law, which allows the country’s Attorney General’s Office to prosecute crimes that aren’t directly related to Germany and its citizens, but are included in the Rome Statute’s list of offenses. 

Attempted murder isn’t on that list (as such, this charge doesn’t provide a basis for Germany to open a case), but it does include crimes involving the use of chemical and poisonous weapons. However, these provisions don’t apply in Navalny’s case. 

Why doesn’t the Rome Statute apply? 

The Rome Statute (as well as national legislation embodying the norms of international law) only allows extraterritorial prosecution for four groups of crimes:

1. Genocide
2. Crimes against humanity
3. War crimes
4. Crime of aggression

The use of a chemical weapon (CW) is classified as a war crime. However, this only applies to the use of chemical weapons in the context of an armed conflict, as specifically stipulated in the statute. As a result, the “private” use of poisonous substances — for example, by intelligence agencies — isn’t subject to investigation under international criminal law; it falls within the jurisdiction of national investigative and judicial authorities.

Moreover, individuals and governments have been able to avoid liability for the use of chemical weapons, even during armed conflicts. For example, Bashar al-Assad’s regime in Syria was accused of using munitions containing nerve agents (chemical weapons) against militants and civilians in the Damascus suburbs in 2013. These accusations were backed by the Organization for the Prohibition of Chemical Weapons (OPCW). When the question of whether or not the perpetrators could be brought before International Criminal Court arose, it turned out that a provision about classifying the use of chemical weapons in non-international conflicts (in other words, in civil wars) as a war crime was introduced to the Rome Statute in 2010 (previously, it only covered “full-fledged” wars between countries). However, the provision didn’t come into force since it wasn’t ratified by the majority of the signatory states. As such, accusations about the illegal use of chemical weapons in Damascus would have to be handled by Syrian courts. The UN Security Council could have referred this case to the ICC, but Russia and China opposed the move. 

So what does that mean for the domestic use of chemical weapons?

It’s possible that Navalny’s case will become an important argument in favor of completely banning chemical weapons and punishing those responsible for their use around the world. A group of international scientists from the Harvard Sussex Program have long been carrying out this fight, demanding that the development, storage, and use of chemical weapons by non-governmental organizations and individuals be expressly prohibited, and that violators be punished in accordance with international law. According to these activists, this could also include a ban on the use of substances that police officers use to disperse demonstrations. However, according to the Rome Statute, changes to its provisions don’t have a retroactive effect, so this wouldn’t impact the investigation into Navalny’s case.