Killing General Kirillov: Questions and Answers

On December 17, Lieutenant General Igor Kirillov, the head of Russia’s Radiation, Chemical, and Biological Defense Forces, and his assistant were killed in a bomb explosion outside his Moscow apartment building. The bomb was concealed in an electric scooter and remotely detonated as Kirillov’s driver picked him up. A day earlier, Ukraine had issued a warrant for Kirillov alleging his participation in war crimes.

Russian law enforcement authorities quickly apprehended an Uzbek national, Akhmadzhon Kurbonov, and charged him with murder, engaging in terrorism, and illegally manufacturing explosives. According to the Russian Federal Security Service (FSB), Kurbonov confessed to conducting the attack for the Ukrainian intelligence services in exchange for promises of $100,000 and relocation to a European country. Russian authorities claim he monitored the situation from a rented car and live-streamed it to his Ukrainian handlers.

Ukraine’s Security Service (SBU) has acknowledged its responsibility for the operation. As a Ukrainian intelligence officer explained, “Kirillov was a war criminal and a completely legitimate target, as he gave orders to use banned chemical weapons against the Ukrainian military … . Such an inglorious end awaits all who kill Ukrainians. Retribution for war crimes is inevitable.” The allegations appear well-founded. Kirillov had been sanctioned by the United Kingdom in October “for the deployment of barbaric chemical weapons in Ukraine.” That action followed sanctions on Russian government entities and companies by the United States last May for using chemical weapons and riot control agents as a “weapon of war” in violation of the Chemical Weapons Convention. Canada had sanctioned Kirillov even earlier.

In a Washington Post opinion piece, Max Boot quoted me as noting that “it seems rather straightforward; military officers are combatants, who are targetable in belligerent territory.” However, he cautioned that I was still studying the matter and that my assessment was only a “preliminary judgment.” In this post, I unpack the law of armed conflict (LOAC) issues raised by the attack through a series of questions and answers. I conclude with my final assessment of the lawfulness of the operation.

Was Kirillov a Lawful Target?

That Kirillov was a lawful target under LOAC is beyond doubt. In an international armed conflict, armed forces members are combatants who, therefore, may be attacked (Geneva Convention III (GC III), art. 4A(1); Additional Protocol I (AP I), art. 43(2); Department of Defense (DoD), Law of War Manual, § 5.7; Customary IHL study, Rule 3). This lawful targetability derives from the customary law principle of distinction reflected in Article 48 of the 1977 Additional Protocol I to the Geneva Conventions (Russia and Ukraine are party). It provides, “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives” (see also DoD, Law of War Manual, § 2.5; Customary IHL study, rule 1).

The fact that Kirillov was the subject of a criminal investigation and may have committed war crimes is neither here nor there vis-à-vis his susceptibility to attack. On the one hand, Kirillov was targetable based on his status alone (so-called “status-based targeting”); this is so even if he had always acted lawfully. On the other hand, violations of international criminal law do not, by themselves, justify killing the offender (absent execution consistent with “fair trial guarantees”). As noted in Article 75 of Additional Protocol I, which the United States characterizes as reflecting customary law, “No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure” (see also Customary IHL study, rule 100).

Does It Matter That the Attack Occurred Far from the Active Battlefield?

During an international armed conflict, LOAC applies throughout the territory of the parties to the conflict. The question here is whether its application depends on the existence of hostilities in the location under consideration (Moscow). In other words, is there any basis for arguing that LOAC did not govern the attack on Kirillov because Moscow is not an area of continuing hostilities?

In fact, there have been hostilities in and around Moscow for some time, most notably drone strikes. For instance, on November 10, Ukrainian forces launched 34 drones against targets in the area, its largest aerial barrage to date. However, they have not been intense and there have been no direct exchanges between Ukrainian and Russian forces there.

Yet, even if there had never been hostilities in the area, LOAC would still govern the attack on Kirillov. The International Criminal Tribunal for the Former Yugoslavia (ICTY) considered this issue in the Tadić case. In its decision on jurisdiction, the Appeals Chamber observed that “the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities” (para. 67). Accordingly, it concluded,

[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there (para. 70).

Was the Attack an Unlawful “Assassination”?

Media reports have repeatedly characterized Kirillov’s killing as an “assassination” (e.g., here). The 2001 Canadian Law of Armed Conflict Manual defines “assassination” as “the killing or wounding of a selected non-combatant for a political or religious motive” and notes that such actions are prohibited (§ 612; see also Australian Manual on Law of Armed Conflict, para. 7.25). In fact, intentionally killing a non-combatant, except when directly participating in hostilities, is unlawful irrespective of motive. But, as noted, Kirillov was a combatant.

In an earlier Articles of War post, I took a deeper look at the concept of assassination in LOAC (on assassination more broadly, see here). Generally speaking, it appears in the context of two particular prohibitions encompassing combatants: perfidious attack; and, perhaps, outlawry.

A perfidious attack, prohibited under both treaty and customary law, is one in which the attacker kills or wounds (or captures for Additional Protocol I States) its adversary while feigning protected status (AP I, art. 37; DoD, Law of War Manual, § 5.21; Customary IHL study, rule 65). Kirillov may not have realized the electric scooter was a bomb, but as scooters do not enjoy special protection under LOAC, the prohibition is inapplicable.

The status of outlawry is more ambiguous. Outlawry is often referred to in the contemporary context as “putting a price on the head” of the enemy or offering a “bounty.” Originally appearing in the 1863 Lieber Code (art. 148), the prohibition has long been construed by some States as deriving from Article 23 of the 1907 Hague Regulations, which prohibits “kill[ing] or wound[ing] treacherously individuals belonging to the hostile nation or army” (see, e.g., the 1956 U.S. Army’s The Law of Land Warfare, para. 31). The DoD Law of War Manual, for instance, explains, correctly in my view, that (§ 5.26.3.1),

It is forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons “dead or alive.” Such actions encourage the denial of quarter or encourage private persons to take up arms whose participation in hostilities is often undisciplined and associated with the commission of war crimes. This prohibition extends to offers of rewards for the killing or wounding of all enemies, including specific individuals or a class of enemy persons (e.g., officers).

However, this rule would not prohibit offering rewards for the capture of unharmed enemy personnel generally or of particular enemy personnel. Similarly, this rule does not prohibit offering rewards for information that may be used by combatants to conduct military operations that attack enemy combatants. (See also, e.g., International Committee of the Red Cross (ICRC), AP I Commentary to Article 37, n. 46; Australia, Manual on Law of Armed Conflict, para.7.25; Canada, Law of Armed Conflict Manual, § 612(3); UK, Law of Armed Conflict Manual, § 5.14).

However, it is unclear whether the text accurately reflects customary international law (see Bicknell). Despite its express prohibition in the Lieber Code and 1880 non-binding Oxford Manual (art. 8(b)), the drafters of the 1899 and 1907 Hague Regulations failed to mention outlawry expressly. Nor does reference to outlawry appear in the 1949 Geneva Conventions, the 1977 Additional Protocols, the military manuals of many States, or the 1998 Rome Statute of the International Criminal Court (or statutes of other international tribunals). And the ICRC, which is sometimes faulted for over-inclusiveness in its characterization of customary law, did not include a rule on outlawry in its 2005 Customary International Humanitarian Law study. The study’s only mention of it is found in a brief reference in the commentary on perfidy.

Thus, even if Russia’s claim that the SBU offered $100,000 for Kirillov’s death is accurate, it remains unclear whether there is a customary rule that the action would breach.

Was the Electric Scooter Bomb an Unlawful Weapon?

According to the 1996 Amended Protocol II to the Convention on Conventional Weapons, to which both Russia and Ukraine are party, a booby trap is a “device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act” (art. 2(4)). In this case, Kirillov simply walked past the scooter; it did not explode because he disturbed, approached, or did anything with it. Instead, Kurbonov allegedly activated the explosive remotely.

The scooter bomb is more appropriately classified as an “other device” under Amended Protocol II. That term refers to “manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are activated manually, by remote control or automatically after a lapse of time” (art. 2(5)).

Article 3 of the Amended Protocol bans indiscriminate use of “other devices.” This attack, however, was monitored visually and triggered remotely. As a result, the device was employed in a highly discriminate manner, killing only one other individual. Also inapplicable is Article 7, which prohibits “other devices in the form of apparently harmless portable objects,” which the scooter was. However, the prohibition only applies to objects “specifically designed and constructed to contain explosive material.” The scooter was modified to contain the explosive, not designed to do so.

Finally, Article 7 also prohibits the use of other devices in

any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent, unless either: (a) they are placed on or in the close vicinity of a military objective; or (b) measures are taken to protect civilians from their effects, for example, the posting of warning sentries, the issuing of warnings or the provision of fences.

As the device was used in a city outside an apartment complex, the broad prohibition is triggered. However, the monitoring by Kurbonov and the remote activation feature qualify as measures that protected civilians from its effects, while the small explosive blast was not of a nature to place civilians at significant risk.

Does It Matter That Kurbonov Is a Civilian?

Not all violence in the territory of a State party to an armed conflict is governed by LOAC; that body of law only reaches violence with a nexus to the conflict. For instance, if Kurbonov had harbored religious or political motivations and acted independently, LOAC would not apply. But if the Russian allegations are to be believed, a clear nexus to the conflict exists, that between the alleged Ukrainian promise of payment and relocation and the killing of an enemy general officer. LOAC applies despite Kurbonov’s status as a civilian.

Moreover, if the attack violated LOAC, the fact that a civilian Uzbek national mounted the attack would not shield Ukraine from legal responsibility. Under the customary law of State responsibility, “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” (Articles of State Responsibility, art. 8). In this case, the attacker was operating according to express Ukrainian instructions; indeed, Ukrainian intelligence officers planned the operation and were monitoring it.

Can Kurbonov Be Held Criminally Responsible for the Attack?

It is sometimes suggested that a civilian directly participating in the hostilities who kills a combatant, as was the case here, violates LOAC. This is a misapplication of the law. Instead, individuals who do not qualify for combatant status benefit from neither combatant immunity nor prisoner of war status upon detention.

Concerning combatant immunity, it is clear that had a member of the Ukrainian armed forces killed Kirillov, that individual would enjoy immunity from prosecution for murder and related offenses under the Russian criminal code (AP I, art. 43(2)). However, as a civilian directly participating in the hostilities, Kurbonov remains liable to prosecution. Moreover, because he is not a combatant, he is not entitled to protection as a prisoner of war under Geneva Convention III (GC III, art. 4(A); AP I, art. 44(1)). Nor is Kurbonov a detained “protected person” benefiting from the safeguards of Geneva Convention IV on civilians. This is because Article 4 of the Convention excludes nationals of a neutral State with diplomatic representation in the detaining State, like Uzbekistan, from protected person status.

With respect to both his prosecution and detention, therefore, the key LOAC protections Kabanov will enjoy are the fair trial guarantees and the humane treatment requirements outlined in Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I. He will also, in theory, enjoy the protections resident in international human rights law.

Did the Use of the SBU by Ukraine Violate LOAC?

Throughout this conflict, the SBU has conducted hostilities, including attacking the Kerch Strait Bridge, the Black Sea Fleet, separatist leaders, and, most famously, a Russian ally of Putin, Alexander Dugan (the attack failed, but his daughter died in the explosion). The question is whether such operations are permissible under LOAC.

This raises the issue of status. The SBU is distinct from the Main Directorate of Intelligence of the Ministry of Defence, the GUR. Article 17 of the Ukrainian Constitution distinguishes between “military forces and law enforcement bodies” tasked to “ensure State security.” Additionally, Article 1 of the “Law On the Security Service of Ukraine” labels the SBU as a “law enforcement organ of special purpose” and subordinates it to the President rather than the Ministry of Defence. Thus, it appears clear that the SBU is not usually a component of the armed forces, even though it sometimes acts in a manner that generates synergy with military operations.

However, Article 43(3) of Additional Protocol I acknowledges that a party to the conflict may incorporate a paramilitary or armed law enforcement agency into its armed forces. When it does so, its members attain combatant status so long as it has notified its adversary of the incorporation. The open-source material available in English does not suggest that either incorporation or notification has occurred.

Whether incorporated into the armed forces or not, the SBU’s status has no bearing on the lawfulness of Ukraine’s use of the SBU to conduct hostilities, for there is no LOAC prohibition on turning to government entities other than the armed forces to do so. Indeed, the United States has done so itself with CIA paramilitary forces, the most prominent example being their use in the early days of the Afghanistan conflict.

Yet, if the SBU has not been incorporated into the Ukrainian armed forces with notification to Russia, the legal consequences of its involvement in the Kirillov attack would be borne by its personnel. As explained above with regard to Kurbonov, individuals who are not members of the armed forces are civilian direct participants in hostilities who enjoy neither belligerent immunity nor prisoner of war status upon capture. This would place them at significant risk if detained by Russia.

Concluding Thoughts

The targeting of Lieutenant General Igor Kirillov illustrates the complexity of the law of armed conflict. My conclusion is that he was a lawful target, probably killed lawfully. My only hesitation is that the law governing outlawry is unsettled. But despite the likely lawfulness of the attack under LOAC, Kurbonov may be prosecuted for killing Kirillov and has only limited protection under LOAC during detention and trial. Additionally, SBU officers who were involved might, depending on the issue of incorporation, find themselves in the same predicament if captured.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

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