When will the children grow up? Britain and Russia have been squaring up like surly adolescents. The Cold War is over, but both sides are addicted to Cold War games which have no purpose except to show that their testosterone is pumping powerfully.
The present quarrel started last November with the assassination by polonium poisoning in London of Alexander Litvinenko, a former KGB officer, who had become a British citizen. No one knows who did it, but a British police investigation pointed to Andrey Lugovy, now a Russian businessman, but formerly a KGB operative, as the chief suspect. The British government (technically the Crown Prosecution Service) asked the Russian authorities to extradite him to stand trial in London. The Russians refused. The British government announced that it would expel four Russian diplomats and impose visa restrictions. The Russians responded by expelling four British diplomats. It was all according to the obsolete Cold War script.
To me –and to practically everyone else outside Russia – it is inconceivable that the murder was not ordered and organised in Moscow. Most people in London believe the Kremlin was behind it. I prefer to think, more charitably, that what it shows is that Russia’s security services are not under proper political control. The British authorities were rightly extremely annoyed. As the foreign secretary, David Miliband, said last week: ‘[Litvinenko’s] murder put hundreds of others, residents and visitors, at risk of radiation contamination’. At the same time the British request for Lugovy’s extradition could hardly have been meant seriously. They knew the Russians would refuse. It was simply an excuse to show that Britain was still in the Alpha male class.
Mr. Miliband’s statement is a masterpiece of obfuscation. ‘The [Russian] Deputy Prosecutor-General’s letter’, he stated, ‘says that the Russian constitution currently bars extradition’ –as though he had been unaware of this. But his legal adviser would certainly have pointed him to Article 16.1 of the constitution which says: ‘A citizen of the Russian Federation shall not [ne mozhet byt’] be deported or extradited to another state’.
The British government knew that to grant a request for extradition would have required Russia to change its constitution. Did he seriously expect this to happen? Mr. Miliband pointed out that other countries had changed their constitutions to ‘give effect to the European Arrest Warrant’. But these countries are members of the EU. Russia, not being in the EU, was not a signatory of the European Arrest Warrant. So the example is irrelevant.
Article 15.4 of the Russian constitution states: ‘If an international treaty or agreement of the Russian Federation fixed other rules than those envisaged by law, the rules of the international agreement shall be applied’. Russia does not have an extradition treaty with Britain, though it does with Brazil, India, and others. But the main obstacle to such a treaty comes from Britain, not Russia: it does not wish to hand over Boris Berzhovsky or Akhmed Zakayev, both wanted by Russia for acts which are crimes in both jurisdictions.
We may think the Russian objections to extraditing Lugovy are legalistic. But the west claims to set great store by legality. What an uproar there would be if Mr. Putin changed the constitution to allow himself a third term!
A much better way of handling the situation would have been for Britain to agree that Lugovy be tried in Moscow, with the condition that British prosecutors were allowed to present their evidence in public to a Russian court. That would have tested the quality of Russian justice. It is still not too late for Britain to suggest this as a compromise before the game of ‘tit for tat’ does more damage than anyone wants.