Since the Russian invasion of Ukraine last year, Russian officials, infrastructure, and now the Kremlin itself have been subject to a series of assassinations, bombings and drone attacks. On the night of May 2-3, 2023, the Kremlin was reportedly attacked by two drones. Russian authorities have labelled this an assassination attempt against President Putin claiming the attacks were aimed at the official Presidential residence within the Kremlin complex. Moscow has banned the flight of drones. No one was reportedly injured in the drone strike, and Russian authorities claim they were brought down by electronic countermeasures. Previous attacks have been limited to occupied territory and in the border areas between Russia and Ukraine. The ability to strike the Russian capital is telling and indicates a new level of escalation in the conflict.
The timing of the latest attack is important because the Russian military is preparing to celebrate the May 9th Victory Day Parade in Red Square. Similar parades, such as in Crimea, have been cancelled since these large gatherings might be a tempting target. The drone attack may be an act of symbolic resistance by Ukrainian forces or those sympathetic to them. Ukraine has been reluctant to claim responsibility for some of these events since they may violate the law of armed conflict and labelled as terrorist attacks.
Civilian Assassinations
Assassination is a difficult thing to justify in the Ukraine-Russia conflict. Some may have a fanciful notion of the French Resistance to German occupation during the Second World War with the Maquis striking at the German military. Setting aside the issue of whether the resistance member is a lawful combatant; a soldier is a legitimate military target under customary international law (See DOD Law of War Manual ¶ 4.4) and treaty (See Hague IV, Art. 1-2). Civilians, let alone a sitting President, are not.
Customary international law evolved to protect civilians and civilian objects. This customary practice was later codified by international treaties such as the Hague Regulations, Geneva Conventions, and its two Additional Protocols (AP I and AP II). Beginning with the killing of Daria Dugina with a car bomb last August in the Moscow Oblast, and the murder of military blogger Vladlen Tartarsky last month in Saint Petersburg, Ukrainian forces or those sympathetic to them are showing a lack of regard for these protections. Tartarsky’s death was very personal since he was killed by explosives hidden in a statue of himself presented as a gift by the woman charged with his murder.
The United States prohibits political assassinations. President Ford signed Executive Order 11905 in 1976 to prohibit “political assassinations.” Subsequently, Presidents Carter and Reagan issued Executive Orders 12036 and 12333 which prohibited the U.S. Intelligence Community from even indirect involvement in “political assassinations.” None of the Executive Orders define the term “political assassination.” While President Zelensky has set regime change in Moscow as a precondition for peace talks, the United States is opposed to assassination.
Sabotage
Russia has seen its infrastructure attacked by saboteurs. Most recently, two rail lines have been bombed. The first occurred on Monday, May 1, 2023 in the Bryansk region and resulted in a derailment with no reported injuries. The next day a second bombing in the same region had similar results. Last October saw a truck bomb destroy two lanes and damage the rail line of the Kerch Bridge connecting Crimea to Russia. There have been similar demolition attacks on Russian power infrastructure. Most recently, there were two successful drone attacks on fuel depots in Crimea.
If Ukrainian forces are behind the sabotage, they have to consider three legal principles when planning and conducting attacks on infrastructure. The first principle is distinction (See DOD Law of War Manual ¶2.5 and AP I, Article 48). Distinction notes the difference between a protected civilian or civilian object and a military object subject to attack. While these objects may seem to be strictly civilian, in reality they are considered dual use objects. The military benefits from the rail transportation system, fuel storage depots, and the power network to conduct its operations. These are lawful targets subject to attack.
The saboteurs must also consider the collateral effects on civilians from their attacks on the infrastructure. The principle of proportionality requires that the military benefits to be gained do not cause “unreasonable or excessive” injury to civilians or civilian objects (See DOD Law of War Manual ¶2.4.1.2 and API, Art 51(5)). The Russians provided an example of this principle possibly being violated with their missile and drone attacks on the Ukrainian power network last fall. If these attacks had destroyed or disrupted the network for too long, thousands or millions of Ukrainians could have frozen to death due to lack of heat.
Finally, the saboteurs are required under the law of armed conflict to take precautions to protect civilians when planning and executing their attacks on infrastructure (See DOD Law of War Manual ¶5.11 and AP I, Art 57(2)). Many factors have to be considered such as the proximity of civilians and civilian objects to the infrastructure, the timing of the attack, and the methods employed. While not infrastructure, the May 9th Victory Day Parade provides an interesting example of this principle. The parade participants are part of the Russian military and could be targeted, but civilians will also be present to witness the parade. Any attack on the parade would have to minimize the threat to the civilians. Levelling Red Square is not an option.
Attribution
The various acts by saboteurs and assassins have not been attributed to Ukraine despite Russian accusations. Ukraine denied responsibility for the drone attack on the Kremlin and the Kerch Bridge explosion. Though Ukraine announced a postage stamp depicting the Kerch Bridge explosion hours after it occurred. Ukraine may be seeking to avoid attribution and state responsibility for these intentionally wrongful acts.
Russia is treating the sabotage and assassination as criminal investigations violating Russian domestic law. There are several examples of the Russia FSB spoiling sabotage attempts (See here, here, and here.) and criminal cases have been opened against the murderers of Daria Dugina and Vladlen Tartarsky.
State attribution is a difficult matter. If Russia were to seek to hold Ukraine responsible for the actions of these bad actors, the bar is quite high. The International Court of Justice in its Paramilitary Activities (¶115) and Bosnian Genocide (¶¶396-406) cases requires that for a state to be held responsible they must have “effective control” over the individuals ordering them where to go and what to do. Ukraine is free to supply the saboteurs with destructive material without state liability (See Paramilitary Activities case ¶228). It remains to be seen whether Russia or Ukraine will be held responsible for the bad actors in any post-conflict tribunal.
Conclusion
The Ukraine-Russia conflict seems to be accelerating in intensity with explosions and drone attacks in major cities of Moscow and Saint Petersburg. It is unclear whether Ukraine is launching these attacks in response to Russian missile strikes or they are the actions of some independent resistance figures within Russia. Russia has been cryptic on any response.
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LtCol Brent Stricker, U.S. Marine Corps, serves as a military professor of international law at the Center for Naval Warfare Studies, U.S. Naval War College. The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.
