The Hamburg Instrument

The claim rests on a single measurement: whether one man, Serhii Kuznetsov, performed specified acts in the destruction of the Nord Stream pipelines in 2022. Let us first verify whether this measurement captures what it purports to capture. I contend it captures exactly that and nothing more. The danger lies in the public’s intention to read a far larger quantity off a dial that was never graduated for it.

Consider what a criminal court is, mechanically. It is an engine of very narrow design. German prosecutors feed in evidence about one defendant: his movements, his associates, perhaps his presence aboard a vessel or beside a diving cylinder. The court applies a fixed rule of proof and produces a binary output, guilty or not guilty, for the charges as framed. It is an admirable machine. Its inputs are disclosed, its operations are contested by an adversary at every stage, and its reasoning must be written down where others can inspect it. On its own question, the Hamburg court deserves considerable trust.

The difficulty is that almost nobody is asking its question. Moscow wants to know whether Kyiv ordered the attack. Berlin wants to know, though it would prefer not to say so aloud, whether it has been financing the defence of a state that blew up German energy infrastructure. Every chancery in Europe wants to know how many people knew, how high the knowledge went, and whether the explosions near the Baltic seabed were a soldier’s private enterprise or an act of war. These are questions of command and attribution. The court computes individual culpability. Between the two quantities lies an error term of enormous and unknown size, and no newspaper will print it.

Let us trace how the error propagates. Suppose Mr Kuznetsov is convicted. Commentators will announce that Ukraine has been found responsible. But the verdict establishes only that this man did these things. The fact that he was a Ukrainian serviceman tells us his employer, not his instructions. A clerk at the Bank of England who forges a cheque has not thereby proven the Governor a forger. Now suppose he is acquitted. Other commentators will announce that Ukraine has been cleared, when the court will have found only that the evidence against one defendant fell short. Either result will be put to work for a conclusion its machinery never touched. I can think of no better illustration of how a precise instrument becomes a source of imprecision: its reputation for exactness is borrowed to certify a figure it did not compute.

The strongest objection deserves its full weight. A trial may, in the course of establishing one man’s guilt, bring out evidence of who paid, who planned, who supplied the explosives and the boat. Testimony is compelled; documents are entered into the record. Surely, the objector says, this is the best public window we shall ever get into the whole affair. I grant it. A court is the only instrument in this affair whose workings are open to inspection. Yet a window is not a survey. The prosecution will introduce what is necessary to convict Mr Kuznetsov and has no obligation to introduce anything further. The defence will introduce what is necessary to acquit him and has every incentive to leave the remainder dark. Evidence about the chain of command enters the record only where it happens to bear on the defendant. The view through the window is therefore shaped by the charge sheet, not by the truth of the larger matter. It shows a room. We shall be tempted to describe the house.

I picture the scene with some precision. A man sits in the dock in Hamburg, an interpreter at his elbow, rendering each German sentence into a language whose country is fighting for its existence. Behind the glass, diplomats take notes for three governments, and none of them is recording what the judges are actually deciding. Each is recording the parts that may later be quoted as a finding. When he says he was not there, the Russian attaché writes one thing and the Ukrainian another, and both believe they have measured something.

Mr Kuznetsov denies involvement. That denial is the only proposition the court is constructed to test. Who ordered the pipelines destroyed is a separate calculation, and no tribunal has yet been assembled to perform it. Can it be independently confirmed? Not in Hamburg. The judges will produce their result to the last decimal place of a question no one in the gallery came to ask.