Law and the killing of a Russian propagandist: Some Q & A
Can a person identified as a journalist or political commentator who nevertheless spreads hateful propaganda and disinformation be legally targeted in war? That is one of many questions to be considered following the recent killing of a Russian nationalist.
Here’s the context: a front-page story in the October 5th edition of the New York Times alleges:
United States intelligence agencies believe parts of the Ukrainian government authorized the car bomb attack near Moscow in August that killed Daria Dugina, the daughter of a prominent Russian nationalist, an element of a covert campaign that U.S. officials fear could widen the conflict.
As will be detailed below, some consider Ms. Dugina a journalist; others label her a political commentator with “hawkish, imperialist views” like those of her father. Many saw her as a spreader of disinformation. However, no one alleges she was a member of the Russian armed forces or held any position in the Russian government; by all accounts, she was a civilian.
According to the Times, the U.S. did not approve of her killing. Unnamed U.S. officials also told the paper that the “United States took no part in the attack, either by providing intelligence or other assistance.” Importantly, the Times asserts:
American officials admonished Ukrainian officials over the assassination.”
When asked in August about Dugina’s killing, a U.S. State Department spokesman said:
I don’t have anything to share beyond what you have all heard publicly, and that is that Ukraine has denied any involvement in the attack on this individual. We unequivocally condemn the targeting of civilians. We condemn the targeting of civilians, whether that’s in Kyiv, whether that’s in Bucha, whether that’s in Kharkiv, whether that’s in Kramatorsk, whether that’s in Mariupol, or whether that’s in Moscow. That principle applies around the world. (Emphasis added.)
The first reports aren’t usually wrong because the people reporting the news are trying to get it wrong. The first reports are usually wrong because in fast moving situations it takes an enormous amount of skill and patience to sort through to find out what’s really going on.
Consequently, we’ll analyze the case based on the assumption that respected media reports are mostly accurate. Still, we need to keep an open mind because that assumption may prove to be erroneous as more information develops. We also need to carefully consider Ukraine’s denial of any involvement.
Does the international Law of Armed Conflict (LOAC) apply to this conflict?
Yes. Ukraine is a party to most international treaties related to armed conflict (list here). The Russian Federation is likewise a party to a range of international treaties related to armed conflict, including the four original Geneva Conventions of 1949 (list is here).
Moreover, an expert points out, both “Russia, and Ukraine, recognize the existence of International Humanitarian Law” and adds that, “In fact, both sides claim that they did not violate the law, implying that the law exerts a form of constraint on them.”
However, a March 2022 article in the Washington Post reported that a somewhat different assertion was made by a Ukrainian official. Seeking comment from Alexei Arestovich (described by the Post as the “adviser to the head of the office of Ukrainian President Volodymyr Zelensky) about the dispersal of Ukrainian military assets into civilian areas, the Post reported:
[Arestovich] argued that international humanitarian laws or the laws of war don’t apply in this conflict because “the main task of Putin’s military campaign is the destruction of the Ukrainian nation.” He said Russian President Vladimir Putin has repeatedly denied Ukraine’s existence as an independent nation.
“Therefore, what is happening here is not a competition of European armies according to established rules, but a struggle of the people for survival in the face of an existential threat,” said Arestovich.
It’s hard to know how widespread this thinking may be in the Ukrainian government but – regardless – it reflects an inaccurate understanding of LOAC.
As I explained in a previous post, there are two separate bodies of international law involved here. Assessing Russia’s accountability for waging of aggressive war is the purview of the jus ad bellum which governs the legality of the resort to force. Put in political terms, it determines what is an “act of war.”
The other, separate body of law is called jus in bello. The ICRC calls it the law that “regulates the conduct of parties engaged in an armed conflict.” Here’s the key (substituting “”LOAC” for International Humanitarian Law (IHL) terminology the ICRC uses):
[LOAC] applies to the belligerent parties irrespective of the reasons for the conflict or the justness of the causes for which they are fighting. If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, [LOAC] is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum.
Similarly, in March the Congressional Research Service discussed jus ad bellum and jus in bello explicitly in the context of the Russo-Ukraine conflict and concluded:
While they can be interrelated, jus ad bellum and jus in bello generally operate independently such that compliance with one category is required regardless of compliance with the other. For example, a state that is a victim of a jus ad bellum violation because it is attacked without a lawful basis must still comply with jus in bello when conducting military operations to defend itself.
To be clear, the wrongness of Russia’s initial resort to force (jus ad bellum) does not obviate the application of LOAC to the current in bello situation in Ukraine. LOAC applies, full stop.
What does LOAC say about killing civilians?
A lot. In fact, perhaps the most fundamental LOAC principle is the requirement to distinguish between civilians and combatants, and to direct attacks only against the latter. The International Committee of the Red Cross (ICRC) says:
The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.
Furthermore, ICRC makes it clear that the murder of civilians has long been considered a war crime:
Common Article 3 of the Geneva Conventions prohibits “violence to life and person, in particular murder of all kinds” of civilians and persons hors de combat. All four Geneva Conventions list “wilful killing” of protected persons as a grave breach. The prohibition of murder is recognized as a fundamental guarantee by Additional Protocols I and II. Murder is also specified as a war crime under the Statute of the International Criminal Court with respect to both international and non-international armed conflicts… (Citations omitted).
The U.S. Department of Defense Law of War Manual (DoD LoW Manual) flatly states in ¶ 5.2.2 that “[c]ivilians must not be made the object of attack.”
What is “assassination”?
The Times called the killing of Dugina an “assassination.” What exactly does that mean?
In 1989 the late Hays Parks, then a Department of Defense lawyer, wrote the definitive memorandum regarding the legal meaning of “assassination.” I very much encourage you to read the full text, but I’ll give you a few highlights.
Parks was opining on the application of Executive Order 12333’s prohibition on assassination, and explained that:
Peacetime assassination…would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases…also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there were no executive order proscribing it.
But Parks drew a careful distinction between such slayings, and the killing of an individual combatant in wartime. He points out:
[C]ombatants are legitimate targets at all times, regardless of their duties or activities at the time of their attack. Such attacks do not constitute assassination unless carried out in a “treacherous” manner, as prohibited by article 23(b) of the Annex to the [1907 Hague Convention IV]. While the term “treacherous” has not been defined, as previously noted… it is not regarded as prohibiting operations that depend upon the element of surprise, such as a commando raid or other form of attack behind enemy lines.
Parks cites the many examples of lawful wartime killings of individuals, including the World War II operation that resulted in the death of Japanese Admiral Isoroku Yamamoto, who masterminded the attack on Pearl Harbor.
In short, if the target is a combatant in an armed conflict the attack will typically be legal (assuming other targeting rules are observed). However, if the target is a civilian, it will typically be illegal unless the civilian’s protected status is compromised by “taking a direct part in hostilities.”
What authority says civilians lose their protection from attack by “taking a direct part in hostilities”?
Plenty. According to the ICRC “Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.”
Similarly, the DoD LoW Manual states (¶ 5.8) that “Civilians who take a direct part in hostilities forfeit protection from being made the object of attack.” There is no real dispute about this axiom of international law; the issues arise as to what acts specifically amount to “taking a direct part in hostilities.”
What constitutes “taking a direct part in hostilities”?
Direct participation in hostilities consists of specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.
Constitutive elements of direction participation in hostilities: In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
- 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);
- 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
- 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).
Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.
Be aware that the ICRC study has been criticized by scholars and, in any event, as the DoD LoW Manual, points out (¶ 4.26.3), “the United States has not accepted the ICRC’s study on customary international humanitarian law nor its ‘interpretive guidance’ on direct participation in hostilities.”
Instead, the U.S. take a more expansive – yet also more nuanced – view of activities that constitute direct participation. In his authoritative study, Colonel Ted Richard summarizes the Manual’s lengthy approach this way:
The Manual elaborates as to factors for assessing whether an act by a civilian constitutes taking a direct part in hostilities, such as: the degree to which the act causes harm to the opposing party’s persons or objects; the degree to which the act is connected to the hostilities; the specific purpose underlying the act; the military significance of the activity to the party’s war effort; and the degree to which the activity is viewed inherently or traditionally as a military one.
Furthermore, the Manual also provides examples of activities that do not amount to “direct participation” starting with the position that “taking a direct part in hostilities does not encompass the general support that members of the civilian population provide to their State’s war effort…” (¶ 5.8.3)
Notably, also included in the examples (¶ 220.127.116.11) of activities that did not constitute direct participation is “mere sympathy or moral support for a party’s cause” and “independent journalism or public advocacy (e.g., opinion journalists who write columns supporting or criticizing a State’s war effort).” A footnote to that latter illustration points out:
Cf. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, ¶47 (Jun. 13, 2000) (“Whether the media constitutes a legitimate target group is a debatable issue. If the media is used to incite crimes, as in Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate support for the war effort, it is not a legitimate target.”). (Emphasis added.)
Cornell Law School’s Legal information Institute elaborates on the degree of connection to actual crimes that is necessary for illegal incitement:
Direct incitement requires “a direct appeal to commit an act referred to in [the Genocide Convention]… it has to be more than a vague or indirect suggestion” (Nahimana, ICTR, Trial Judgment § 692; see also Akayesu, ICTR, Trial Judgment § 556)…. That is, it must be unambiguous in its intended context. (Emphasis added.).
Finally, the ICRC says:
Journalists are protected only as long as they do not take a direct part in the hostilities. News media, even when used for propaganda purposes, enjoy immunity from attacks, except when they are used for military purposes or to incite war crimes, genocide or acts of violence. (Emphasis added.).
Who was Daria Dugina?
Last August the BBC described Ms. Dugina this way:
Darya Dugina was herself a prominent journalist who vocally supported the invasion of Ukraine.
Earlier this year she was sanctioned by US and UK authorities, who accused her of contributing to online “disinformation” about Russia’s invasion.
In May, she described the war as a “clash of civilisations” in an interview and expressed pride in the fact that both she and her father had been targeted by Western sanctions.
The New York Times characterized her “as a commentator who combined hawkish, imperialist views with jargon-laden political philosophy.” It also said:
Ms. Dugina’s public commentary provided an ideological framework for Mr. Putin’s aggressive foreign policy. In an interview with a Russian broadcaster hours before her death, she cited the theories of Samuel Huntington and other scholars to describe the war in Ukraine as an inevitable clash of civilizations.
“This is liberal totalitarianism, this is liberal fascism, this is Western totalitarianism,” she said, describing what Russia, in her view, was fighting against. “It has reached its end.”
When she was sanctioned by the U.S. last March the U.S. Treasury accused her of seeking “contributors to write articles” for a Russian disinformation website.
What if Dugina was mistakenly killed?
The Times reports that “[s]ome American officials suspect Ms. Dugina’s father, Aleksandr Dugin, a Russian ultranationalist, was the actual target.” This is significant since a “mistake of fact [that is] both honest and reasonable” could be a complete defense to a war crime charge under international law.
However, if a mistake was made, exoneration in this instance still depends upon whether or not the intended target was a lawful one. Obviously, an operation aiming to kill a protected civilian is not legalized simply because the wrong protected civilian was killed.
So who is Aleksandr Dugin, and would LOAC permit targeting him with lethal force? Back in August, the Times described him this way:
“Mr. Dugin is a self-educated political philosopher frequently described as “Putin’s brain,” although the actual relationship between the two men is opaque and, some experts on the Kremlin say, often overstated. But Mr. Dugin has long been one of the most visible proponents of the idea of an imperial Russia at the helm of a “Eurasian” civilization locked in an existential conflict in the West.”
The U.S. Treasury says he was first sanctioned in 2015 “for being responsible for or complicit in actions or policies that threaten the peace, security, stability, or sovereignty or territorial integrity of Ukraine.” It said “Dugin was a leader of the Eurasian Youth Union, which actively recruited individuals with military and combat experience to fight on behalf of the self-proclaimed Donetsk People’s Republic.“
As to his more recent activities, Treasury contends:
Dugin controls Geopolitica, a website that serves as a platform for Russian ultra-nationalists to spread disinformation and propaganda targeting Western and other audiences. For example, on February 8, 2022, Geopolitica published an article falsely accusing the U.S. and NATO of provoking war with Russia, in order to “further terrorize the American people in all sorts of malicious ways.”
The BBC says this:
While Alexander Dugin is not a state official himself, he is nevertheless a symbolic figure in Russian politics.
His anti-Western, ultranationalist philosophy has become the dominant political ideology in Russia and has helped shape President Putin’s expansionist foreign policy, most prominently on Ukraine.
Did the activities of either of them amount to “direct involvement’?
Based on the available evidence, it doesn’t appear so. For example, recall the U.S. State Department’s statement last August in the aftermath of Dugina’s killing which broadly condemned the killing of civilians “whether that’s in Kyiv…or whether that’s in Moscow.” That seems to suggest the U.S. considered Dugina a protected civilian.
Additionally, the Times says “Mykhailo Podolyak, an adviser to Ukraine’s president” declared that “any murder during wartime in some country or another must carry with it some kind of practical significance” adding that “[s]omeone like Dugina is not a tactical or a strategic target for Ukraine.” That appears to work counter to a finding of sufficient “direct involvement in hostilities.”
Dugina’s father was certainly closer to Putin and more well known than his daughter, but their views and activities seem materially similar. Moreover, the Times says “the United States is concerned that such attacks — while high in symbolic value — have little direct impact on the battlefield,” a conclusion that appears to undercut a finding of direct involvement in hostilities. (Emphasis added.)
The fact that she and her father were sanctioned by the U.S. and the U.K. doesn’t mean there was an adequate showing to make either of them a legal LOAC target. Sanctioning can lawfully be imposed for activities that don’t amount to direct involvement in hostilities.
It is important to remember that despite the references to “innocent civilians” by the media and others, LOAC does not use such phrasing as it would tacitly suggest there are civilians who are not “innocent” and somehow not entitled to protected status. To be clear, LOAC does not limit its protections to just “innocent” civilians.
So long as they aren’t directly participating in hostilities, civilians are legally protected from direct attack. This is true even if they are, for example, morally corrupt.
Furthermore, you may be surprised to learn that even serious criminal activity does not necessarily exclude someone from protected civilian status. As I wrote in 2016:
For example, Umm Sayeff, the wife of a former Islamic State leader killed in the May 2015 Special Forces raid that resulted in her capture, was charged on February 8 with conspiracy to provide material support to a foreign terror organization in connection with the death of American hostage Kayla Mueller.
Sayeff is reported to have been “running ISIS’ sexual slavery network.” As part of this network, Mueller was allegedly tortured into becoming the personal sex slave of Islamic State kingpin Abu Bakr al-Baghdadi. As loathsome as Sayeff’s behavior is alleged to be, it doesn’t necessarily follow that she would have lost her status as a “civilian” under targeting law.
It appears that even if one assumes Ms. Dugina and/or her father were spewing a repulsive political ideology and/or spreading noxious disinformation, such activities alone don’t necessarily amount to “direct participation” in an armed conflict so as to turn them into lawfully targetable persons.
Why doesn’t production of hateful propaganda make a person or an object a legitimate military target?
The highly-influential 1999 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia is insightful on this issue:
“Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the ‘effective contribution to military action’ and ‘definite military advantage’ criteria required by [LOAC].”
Moreover, the Committee determined that “the advantage [justifying an attack] should be substantial and relatively close rather than hardly perceptible and likely to appear only in the long term.”
The Committee found that “[w]hile stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government’s political support, it is unlikely that either of these purposes would offer the ‘concrete and direct’ military advantage necessary to make them a legitimate military objective.”
Additionally, the Committee said that “[a]lthough NATO believed that Yugoslav broadcast facilities were ‘used entirely to incite hatred and propaganda’… it was not claimed that they were being used to incite violence akin to Radio Milles Collines during the Rwandan genocide, which might have justified their destruction.”
In short, it appears that even inciting “hatred and propaganda” is insufficient for lawful targetability.
As unsatisfying as it may be to some readers, the law seems to be that in order to turn a propagandizing civilian person or object into a legitimate target, it is necessary to show such person or object is producing substantial and direct incitement to commit specific, serious, and unlawful “violence” that is expected to occur relatively close in time.
Are attacks aimed primarily at intimidating the civilian population lawful?
In the days after Dugina’s killing , a Washington Post article headlined “Car-bomb killing sows unease among cheerleaders of Putin’s war“ explained the impact of her death on Russian civilian elites who back Putin. According to the Post, propagandists were most effected:
Dugina’s death rocked the Russian TV anchors, journalists and other commentators who serve up propaganda justifying President Vladimir Putin’s invasion as a war against Western global power and “Nazis” in Ukraine. The killing immediately heightened a sense of vulnerability among Russia’s most elite and visible promoters of the war in Ukraine, who now realize that they might be targets and that the government is potentially unable to protect them
One can see how intimidating propagandists could benefit Ukraine, but using violence to do so is unlawful: The ICRC warns: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” The DoD LoW Manual says (¶ 5.2.2) says “[i]n general, military operations must not be directed against enemy civilians,” and adds:
In particular…[m]easures of intimidation or terrorism against the civilian population are prohibited including acts or threats of violence, the primary purpose of which is to spread terror among the civilian population.
What about reprisal?
Last week the U.S. Justice Department told Congress that “shocking crimes [are] being perpetrated by Russia during its unprovoked war against Ukraine.” Could the international law concept of “reprisal” justify an otherwise unlawful attack against a civilian?
The DoD LoW Manual (¶ 18.18.1) defines “reprisals” as “acts taken against a party that would otherwise be unlawful, in order to persuade that party to cease violating the law.”
However, most countries – including both Ukraine and the Russian Federation – are parties to Additional Protocol 1 to the Geneva Conventions which, in Article 51, forbids reprisals against civilians. Interestingly, the U.S. is not a party to Protocol I and does not consider this portion to be binding customary international law.
The U.S. finds the provisions restricting reprisals to be “counterproductive [because] they remove a significant deterrent that protects civilians and war victims on all sides of a conflict,” according to the DoD LoW Manual. A footnote in the Manual (p. 1116, n. 225) makes it clear that it is a long-standing U.S. position by quoting a 1987 statement of Judge Abraham Sofaer, then legal advisor to the U.S. State Department.
Sofaer explained that the U.S. would not sign on to the elimination of reprisals because “[h]istorically, reciprocity has been the major sanction underlying the laws of war.”
He added if the prohibition came into force for the U.S., an “enemy could deliberately carry out attacks against friendly civilian populations, and the United States would be legally forbidden to reply in kind.” He warned that to “formally renounce even the option of such attacks … removes a significant deterrent that presently protects civilians and other war victims on all sides of a conflict.”
All of that said, given that Ukraine is a party to Protocol 1, it is precluded from taking reprisals against Russian civilians despite Ukrainian civilians being the victim, the Department of Justice tells us, of “shocking crimes” at the hands of Russia.
Allow me to reiterate, we are dealing here with allegations that have yet been definitively proved. Still, there are troubling issues deserving of further exploration.
Recall that the Times says that “American officials admonished Ukrainian officials over the assassination.” Ask yourself: if the reports are true, is an admonishment really a sufficient response for the deliberate murder of a civilian – an act the ICRC considers a war crime?
Should the U.S. pass what information it has to an international investigatory body of some kind? The International Criminal Court – ICC – does have an ongoing investigation of the war, but its jurisdiction appears to be limited to alleged crimes “committed on any part of the territory of Ukraine.” Ideally, Ukrainians themselves would investigate the accusation in a transparent manner.
The Times article says U.S. officials did not disclose “whether President Volodymyr Zelensky had signed off on the mission.” If it is true that Ukraine is behind the assassination of Daria Dugina, I’m not sure which would be more troubling: if President Zelensky signed off on the deliberate murder of a civilian, or if an operation was conducted deep into Russian territory without his knowledge.
The latter would be extremely unsettling as the U.S delivers billions of dollars in weapons to Ukraine, but wants to avoid the provocation of their use against targets on Russian soil.
Consequently, Americans leaders need to know who is authorizing operations against Russia. In this respect the Times says “U.S. officials…lack a complete picture of the competing power centers within the Ukrainian government, including the military, the security services and Mr. Zelensky’s office.” That’s worrisome.
Still, It isn’t hard to understand why some Ukrainians might want to lash out at Russian civilians. After all, the UN reports that as of October 3rd, 6,114 [Ukrainian] civilians have been killed in the war, and it “believes that the actual figures are considerably higher.”
But as this post explains, the deliberate killing of civilians not directly involved in hostilities cannot be tolerated – even if those civilians are rabid supporters of the enemy. As Article 22 of the annex to the still-in-effect 1907 Hague Convention puts it: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
Americans strongly support Ukraine because it holds the moral high ground. Maintaining that high ground in their eyes and those of other supporters is vital because, among other things, it underpins the rationale to provide enormous amount of military and economic aid. Aid from the West–and especially the U.S.–has been essential for Ukraine’s survival against the Russian onslaught. But public support can be fragile.
Why? Consider this observation from Michael Reisman’s and Chris T Antoniou’s 1994 book, The Laws of War:
In modern popular democracies, even a limited armed conflict requires a substantial base of public support. That support can erode or even reverse itself rapidly, no matter how worthy the political objective, if the people believe that the war is being conducted in an unfair, inhumane, or iniquitous way.
It is worth remembering the U.S. experience after it was the victim victimized by vicious aggression on 9/11. Initially, America enjoyed tremendous international support…until various illegalities came to light. It is hard to shake the impact of unlawful conduct. As General David Petraeus has said about abuses at Abu Gahrib and Guantanamo: they are “nonbiodegradable. . . . The enemy continues to beat you with them like a stick.”
None of this is to suggest there is any moral equivalency between Ukraine and Russia in this conflict; there isn’t: Ukraine is clearly the victim of horrific aggression. Rather, the question is whether or not fundamental jus in bello principles can survive an extraordinarily embittering conflict.
If LOAC norms are not enforced against both sides – irrespective of a belligerent’s jus ad bellum fault – the slipperiness of the downward slope of an already sickeningly bloody war could significantly increase…and leave civilians on both sides in yet greater danger.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!