Ukraine Symposium – Targeting Leadership

Ukrainian President Volodymyr Zelensky recently spoke at length in Time magazine about assassination attempts against him. He indicated that Russian paratroopers had approached his location immediately after the invasion and that he heard nearby firefights from his office. Zelensky told his children that they needed to prepare to flee their home. “We woke them up, it was loud. There were explosions over there.” The Ukrainian military informed Zelensky that Russian strike teams had parachuted into Kyiv to kill or capture him and his family. “Before that night, we had only ever seen such things in the movies,” says Andriy Yermak, the President’s Chief of Staff.

Since then, several media outlets have reported assassination attempts against Zelensky carried out by the Wagner Group as well as Chechen paramilitary forces (here and here). The Wagner Group reportedly has strong ties with the Kremlin and is notorious for ruthless actions in Syria, Libya, and Mali. They are currently fighting alongside the Russian army in eastern Ukraine.

President Zelensky was allegedly not alone on the Russian “kill list.” The mayor of Kyiv, former boxing heavyweight champion of the world Vitaly “Dr. Ironfirst” Klitschko, and his brother – also boxing’s former world champion – Vladimir “Dr. Steelhammer” Klitschko have also been identified as targets (here).

Although targeting heads of State, such as Zelensky, is not new to war, it is rare in modern armed conflict. As the US DoD Law of War Manual (§ 5.7.4) states, attacks on the national leadership of an enemy State have often been avoided on the basis of comity and to help ensure that authorities exist with whom peace agreements may be concluded.

The most notable recent examples are the attacks directed at Muammar Gaddafi and Saddam Hussein. Gaddafi – former leader of Libya – was killed in a non-international armed conflict between the Libyan government and organized armed groups in 2011. The United States targeted Saddam Hussein –not only head of State but also the commander of the Iraqi Armed Forces – in a 1991 international armed conflict (IAC). He was eventually hanged under a sentence from the Iraqi Special Tribunal in 2006.

This post addresses the lawfulness of targeting political leadership in an IAC. After exploring types of political and military leadership, it describes the two legal bases for targeting leadership. Finally, it addresses the lawfulness of attacks on types of modern leaders, including Zelensky.

Political Leadership

The functions of a head of State or Government may be ceremonial, constitutional, political, or they may combine all three.

For targeting purposes, it is important to distinguish exclusively political leaders from those with military affiliations and functions. An important consideration is the leader’s respective authority over their government’s armed forces. As a general matter, the former may not be targeted lawfully in an IAC while the latter may be in some circumstances. As Professor Michael N. Schmitt points out, when targeting enemy leadership, the determinative issue is the status of the individual in question; those who are combatants or taking a direct part in hostilities may legally be attacked (here, at page 161).

The four most common political and military models for leaders are identified below.

Head of State and Military Chief of Staff

Not every head of State has identical powers in relation to armed forces. While most heads of State in democratic States have traditionally kept more distance from the armed forces, there are also heads of State who – in addition to their political role – also serve as the military chief of staff. For example, Saddam Hussein was not only the leader of Iraq but also the “Mushir,” Iraq’s highest ranking military officer.

Head of State and Commander-in-Chief

Some heads of State are also military Commanders-in-Chief. The President of the United States is such a leader. According to Article II, Section 2, Clause 1 of the Constitution of the United States, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States ….” Nonetheless, the U.S. President does not wear a uniform, nor is he armed. On military matters, the President is advised by a staff as well as the nation’s highest-ranking military officer, the Chairman of the Joint Chiefs of Staff.

Head of Government

The title “Head of Government” is often used in parliamentary governments. The ruler of the government’s cabinet and leading party is the prime minister. The prime minister does not wear a uniform, nor is he armed. On military matters, the prime minister is advised by a minister of defense.

Head of State and Ceremonial Military Commander

Monarchies in which the king or queen holds a political/military role are not uncommon in Europe. For example, the King of the Netherlands – in accordance with the Dutch Constitution – has a politically decisive role. The King is part of the government and appoints and dismisses the prime minister and other ministers. Furthermore, the King co-signs all laws and ratifies international treaties. He welcomes heads of State and also delivers the Speech on Princes’ Day wherein he narrates the government’s policy for the year ahead. The Dutch King has a military background and Dutch servicemembers must swear allegiance to him. Furthermore, he fulfills important military ceremonial roles.

Legal Bases for Lethal Targeting

Irrespective of the leader’s official title, there are only two legal bases under the law of armed conflict for targeting national leadership: their possible combatant status or otherwise their involvement in the hostilities, specifically, if they “take a direct part in hostilities.”

Combatant status

The status of a combatant is defined in Article 43 (2) of the 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the protection of Victims of International Armed Conflicts (AP I), as well as in customary international law as follows:

Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

Combatants are authorized to participate and fight during an armed conflict. They are obliged to distinguish themselves from the civilian population while engaged in an attack or in a military operation preparatory to an attack (here). Combatants are military targets, irrespective of their location or activity. Furthermore, the combatant privilege prohibits prosecution for mere participation in the conflict.

Combatant status may also apply to some other categories, such as the levée en masse, as Article 50 of AP I and 1949 Third Geneva Convention Article 4 explain. However, that article does not automatically qualify an enemy political leader as a combatant.

Direct Participation in Hostilities

If a leader does not have combatant status then, according to Article 50 (1) of AP I, they are considered to be a civilian and protected against direct attacks. However, a civilian, including such a leader, could lose their protection if they directly participate in hostilities. The law of armed conflict does not define the concept of “direct participation in hostilities,” but the International Committee of the Red Cross has offered three cumulative criteria that purport to refine the concept:

a. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);

b. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and

c. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

A civilian leader is likely to be regarded as no longer protected against direct attack if their acts meet these three cumulative criteria.

Political and Military Leader?

A head of State who is also the military Chief of Staff can be defined as a combatant by virtue of membership in the armed forces and is therefore a lawful military target in an IAC. For example, Saddam Hussein was armed, wore a uniform, determined when his forces would be deployed and determined Iraq’s military strategy during the Gulf Wars. A similar position was held by former Cuban leader Fidel Castro. In addition to being the head of State, both were also combatants by their status.

A head of State who is also the Commander-in-Chief is not, however, a combatant by status. Yet, that leader may still be targetable due to their conduct. For instance, if a Commander-In-Chief is directly involved in military decision-making, he is a lawful target in an IAC. The non-governmental organization Human Rights Watch shares this view, observing that, “political leaders would not be legitimate targets of attack unless their office or direct participation in military hostilities renders them effectively combatants…. Thus, political leaders who are effectively commanders of a state’s forces would be legitimate targets…” An example of direct involvement in military decision-making by a head of State and Commander-in-Chief includes the 1950-1953 Korean War. President Harry S. Truman fired General Douglas MacArthur for ignoring orders, demonstrating his military, operational, and strategic influence on the conduct of the war. This act fulfills the three criteria of the “direct participation of hostilities” concept as a result of:

(1) the fact it affected military operations since U.S. troops were no longer pushing North Korea’s forces back past the 38^th parallel;

(2) the direct link between President Truman’s act and the heavy casualties to Chinese and North Korean troops following General Ridgway’s offensive;

(3) the fact that the harm followed by the act was specifically designed to support the U.S. and to the detriment of North Korea and China in the Korean War.

Decisions like these render a head of State who is also a Commander-in-Chief targetable in an IAC.

A head of Government like the Prime Minister of the Netherlands or the United Kingdom (UK) is not a combatant by status and therefore may not be directly attacked during an IAC as they do not take direct part in hostilities. An example of a prime minister who was directly involved in military decision-making, however, was British Prime Minister Margaret Thatcher, who gave the order to attack the Argentinian Light Cruiser Belgrano during the Falklands War. This act fulfills the three criteria of the “direct participation of hostilities” concept because:

(1) it reached the threshold of physical harm as the attack on Belgrano cost the lives of 323 Argentinians;

(2) the harm was a direct result of Thatcher’s order to attack the Belgrano;

(3) the harm followed by Thatcher’s order was specifically designed to support the UK and to the detriment of Argentina in the Falklands War.

This decision made her a lawful target for Argentina during the Falklands War.

A head of State who is also a Military Ceremonial Commander is, despite their military appearance, not a combatant by status. They fulfill important military ceremonial roles, but their military responsibility stops there. For example, the Dutch King is not an active servicemember because he had to renounce his military status to be inaugurated. He does not make any military decisions; therefore, the King has no military powers. As such he, and ceremonial commanders like him, are civilians and not lawful targets. They may not be directly attacked during an IAC as they do not take direct part in hostilities.

President Zelensky

Are Russia’s attacks on Zelensky lawful under the law of armed conflict? Zelensky is not a combatant by status and his involvement in the conflict with Russia is not publicly defined. It does not appear that he is a member of the Ukrainian armed forces, ceremonial or otherwise. It does appear that Zelensky is highly involved in broad political decision-making about the war. But his role in military strategic decision-making is far less clear. The Ukrainian military leadership itself seems to make final operational and tactical level decisions. Because there are doubts about his military involvement, Article 50 (1) of AP I suggests that Zelensky must be considered by AP I parties, such as Russia, a civilian and thus may not be directly attacked. It is worth noting, however, that the United States, perhaps joined by other non-AP I parties, does not regard the AP I, Article 50(1) presumption of civilian status as reflective of customary international law (DoD Law of War Manual, § 5.4.2.1).

Conclusion

As disturbing as attacks on political leaders may sound, targeting a head of State in an IAC is not per se unlawful. Legality depends on the very specific military position and the direct military influence a head of State has over their armed forces.

In sum, a political leader who also acts as the military Chief of Staff is a leader who is a combatant by status. Other leaders are first and foremost civilians and may only be directly attacked in an IAC if they directly participate in hostilities. Historically, the leader who is also the Commander-in-Chief tends to be more involved in military decision-making than a prime minister. A ceremonial leader might appear like an active servicemember, but practice shows that modern ceremonial leaders are not combatants and they do not participate in hostilities.

Zelensky’s military position is undefined and therefore, he seems to be protected by Article 50 (1) of AP I.This makes any direct attempts on his life not lawful under the law of armed conflict. Two questions remain: first, whether unlawfulness would actually cause Russia to refrain from further attacks on Zelensky; second, to what extent will prior attempts be enforced or prosecuted as war crimes.

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Major Mehmet Çoban is a Legal Advisor in the Royal Netherlands Air Force and an Assistant Professor at the West Point Department of Law.

Photo credit: President.gov.ua