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BBC:

Former Ukrainian MP Illya Kyva has been assassinated in Russia by Ukraine's SBU security service, law enforcement sources have told BBC Ukraine.

"The criminal was liquidated by using small arms," the sources said.

His body was found outside the capital Moscow, Russian investigators said.

Earlier this year, Kyva was given a 14-year jail sentence for high treason and calling publicly for the occupation of Ukraine. He had already fled Ukraine and was convicted in absentia.

So, I'm curious, is that an admitted extrajudicial killing, as far as Ukrainian law is concerned? Or is there some kind of wartime law that allows traitors sentenced to prison to be executed instead? Or are the Ukrainian services somehow claiming he was resisting arrest? Or maybe it's another one of those "karma got to him" statements, i.e. not quite an outright admission, but the BBC missed the nuance?

Rodrigo de Azevedo
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the gods from engineering
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    Pedanticism of the highest order, but death-penalty tag should probably not apply, as Ukraine has abolished it and it would be a no-no to join Europe. – Italian Philosophers 4 Monica Dec 06 '23 at 22:57
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    Another clarification: to me, the phrase "law enforcement sources have told BBC" suggests not that the BBC missed any nuance in public statements, but that it's reporting private statements from anonymous sources. – Vectornaut Dec 07 '23 at 06:35
  • One way to answer this would be (1) does Ukrainian law allow prosecution for murders committed in other countries, and (2) are there restrictions on the operation of the security services that would render such extraterritorial operations illegal? If the answer to both questions is no then it's probably legal unless some other crime has been committed in the course of action. We have no way of knowing if another crime was committed (e.g. they could have used illegal hacking, document forgery, etc). Although even then prosecutors could decide not to prosecute. – Stuart F Dec 07 '23 at 11:36
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    as this is a question of legality, is this not better suited to https://law.stackexchange.com/? – Tristan Dec 07 '23 at 15:52
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    @Tristan: No. It is not. – Joshua Dec 07 '23 at 17:47
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    @Joshua Why do you say that? – user76284 Dec 07 '23 at 23:31
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    @user76284: Because there is no single combined forum that can be used to pass judgment. If there war, these two nations would not be at war. – Joshua Dec 07 '23 at 23:51
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    @Joshua The question is asking "according to Ukrainian law". – user76284 Dec 07 '23 at 23:59
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    Based on the information provided in the question, the killing happened in Moscow. Ukrainian law doesn't apply in Moscow. It was certainly an illegal act under Russian law, though I doubt Ukraine's spies care about that. And I even more strongly doubt that Ukraine will use Ukrainian law to prosecute its own spies/special forces for breaking Russian laws. Russia will prosecute the spies, if it can find them. – aroth Dec 08 '23 at 02:08
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    @ItalianPhilosophers4Monica Perhaps you mean Council of Europe? Whether a country allows the death penalty has no bearing on what continent it's in. – Acccumulation Dec 08 '23 at 05:20
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    @Acccumulation No, I didn't. Having the death penalty would scupper EU accession. – Italian Philosophers 4 Monica Dec 08 '23 at 16:12
  • @ItalianPhilosophers4Monica You didn't say "EU" in your original comment, you said "Europe". And the comment you're responding to clearly say "continent". You are clearly either seriously confused about basic reality, or are simply refusing to acknowledge context. – Acccumulation Dec 11 '23 at 00:16
  • You might not have noticed but Ukraine is in the middle of the biggest war in the last half a century. Every day they kill roughly 1000 occupiers and do everything to save the country. There is nothing surprising that some people outside of Ukraine who support russian war are killed. And this will not be the last death and I would not be surprised if in the next 1-2 month another russian propagandist will meet Prigozin. – Salvador Dali Dec 11 '23 at 08:37
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    @Acccumulation Ah, so nice exchanging words with you. I guess I could keep the moderators busy by flagging this as unfriendly but instead I will just note you are comforting my general intentions to have as little to do with you as possible (an intent I dearly wish you would reciprocate) Which I lapsed on in this case :-) Not on your Qs, not your on As. Have a great day. – Italian Philosophers 4 Monica Dec 11 '23 at 20:45

3 Answers3

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There is room for controversy, but the standard for extrajudicial killings in times of a declared war in a place not under the total control of the government carrying out the killing are analyzed under the laws of war and not under civilian criminal justice standards. A killing in the course of a war is not held to the same standards as an execution through the legal process.

In peacetime, the fact that you are convicted of treason makes you guilty of a crime for which you can be arrested and made to serve out your sentence involuntarily.

But, in wartime, in the field, (at least in an international war like this one) if you are a traitor, you are an "enemy" (a.k.a. "adversary") of the country against which you committed treason, who can be killed on any basis that would justify killing any other enemy in wartime (in the field). If the acts of your treason involve aiding the military of the enemy country, you become a combatant, whether or not you are formally enlisted in their military bureaucratically.

Generally speaking, a wartime killing that takes place "in the field" (i.e. somewhere that the country doing the killing is not in complete control of) is legal if it is consistent with the rules of engagement established by military authorities of the country doing the killing, and if those rules of engagement don't violate any international laws of war, such as the Geneva Conventions.

Presumably, in this case, Ukraine's military leaders (including the covert operations branches of its military and intelligence establishment) determined that Illya Kyva's capacity to aid Russia in its war with Ukraine going forward was sufficient to make him a legitimate military target and expressly authorized his assassins to kill him. Under such circumstances, the Geneva Conventions, for example, would not prohibit such a killing.

In times of peace, the extrajudicial killing of citizens is prohibited as a fundamental tenet of human rights. Criminals, terrorists, and gang members must be properly arrested, tried, and convicted of a capital offense before they can be put to death. According to human rights experts, any extrajudicial killings in peacetime thus violate the human right to life, except in situations where there is an imminent threat and no arrest is possible, such as a SWAT team shooting a hostage-taker. Even so, in such law enforcement situations, targets are not selected in advance or placed on kill lists. Police officers begin their missions with an aim to capture and put suspects to a fair trial. On these grounds, organizations like Human Rights Watch, Amnesty International, and the United Nations Office of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions have repeatedly stated that targeted killings violate international human rights law.

In times of war, however, different rules prevail. For parties to an armed conflict, within some limits, the premeditated killing of adversaries without trial is permitted. But here, it depends on what kind of war. In interstate wars, the parties may kill only armed forces of the enemy state who are neither sick, wounded, detained, or surrendering. In non-international wars, fought by or against nonstate adversaries who may live civilian lives when not fighting, killing is permitted only when the targets are directly engaged in hostilities. Hunting them down when they are going about their everyday business is prohibited—targeting particular individuals rather than armed groups in general, even more so.

From the periodical Foreign Policy.

ohwilleke
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    Could you reference Generally speaking, a wartime killing that takes place "in the field" (i.e. somewhere that the country doing the killing is not in complete control of) is legal if ... That's well argued and seems very much on target for this Q, but would benefit from specific supporting material. – Italian Philosophers 4 Monica Dec 06 '23 at 20:21
  • @ItalianPhilosophers4Monica It does not go primarily to Geneva Convention compliance (although "detention" under it is a subpart), but to domestic law line drawing between when civilian and the law of war regimes. In U.S. law, the issue is intertwined with the applicability of the Suspension Clause (Article I, Section 9 of the U.S. Constitution). https://constitution.congress.gov/browse/essay/artI-S9-C2-1/ALDE_00001087/ The concept is more general than the U.S. Constitution, but I'm not entirely sure what Ukrainian legal logic and authority makes this very widely honored distinction. – ohwilleke Dec 06 '23 at 20:31
  • I've been trying to find what he was accused of helping Russia with. Thus far, all I could find is that he participated in some propaganda TV shows https://english.nv.ua/nation/illia-kyva-ex-mp-suspected-of-treason-accused-of-war-propaganda-soliciting-violence-50347386.html – the gods from engineering Dec 06 '23 at 20:32
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    Your own quote suggests the opposite of your answer, though: "But here, it depends on what kind of war. In interstate wars, the parties may kill only armed forces of the enemy state who are neither sick, wounded, detained, or surrendering." It seems doubtful that Kyva was part of the Russian armed forces, no? – Obie 2.0 Dec 06 '23 at 21:05
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    Also, let's be honest with ourselves here. Is it more likely that the Ukrainian government determined that he still had useful military information that the Russian government had not already gotten from him, or that they killed him to send a message? After all, according to the other answer, "the fate of Illya Kyva awaits every traitor of Ukraine," according to the Ukrainian government. – Obie 2.0 Dec 06 '23 at 21:09
  • @ohwilleke I did not ask the Q, and I don't exactly want to reframe it. But... Ukraine can, rather obviously, "decide to make it legal according to UA law". And what the US constitution has to say seems of only tangential interest, at most. Rather, I am interested in how UA's actions in this regards fits in with general, not country-specific, expectations about conduct during wartime. If Illya was RU soldier: fine. If Illya was a normal civilian: bad. If Illya sits somewhere in between... what are laws or customs of war on that regard? You almost seem to answer this. – Italian Philosophers 4 Monica Dec 06 '23 at 22:44
  • @Fizz That kind of stuff got Lord Hawhaw executed after WW2. – Arno Dec 06 '23 at 23:34
  • @Arno: yes, but that after a trial that sentenced him as such, so even considering the later Geneva Convention article 3(d) it was ok. Ukraine only sentenced that MP to prison (in absentia) and recently. Apparently in November https://babel.ua/en/news/100551-ex-mp-ilya-kyva-received-14-years-in-prison-in-absentia – the gods from engineering Dec 06 '23 at 23:38
  • @Arno: also: "Article 37 of AP I, an instrument to which Ukraine and Russia are Parties, prohibits perfidy. Under that provision, a combatant may not “kill, injure or capture an adversary by resort to perfidy,” which includes “the feigning of civilian, non-combatant status.”" So, Ukrainian agents apparently would have had to dress up in uniform before doing this. – the gods from engineering Dec 07 '23 at 12:18
  • That source comments/concludes/adds "The law does not prohibit saboteurs from wearing non-standard uniforms, civilian attire, or even enemy uniforms to deceive before or following an armed engagement, but saboteurs may not wear civilian clothing or enemy uniforms to conduct an attack." Interestingly, they conclude that placing bombs that blow up later doesn't count as an attack though (for the purpose of that prohibition). But Kyva was apparently killed not by a bomb. – the gods from engineering Dec 07 '23 at 12:19
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So, I'm curious, is that an admitted extrajudicial killing, as far as Ukrainian law is concerned? [...] Or maybe it's another one of those "karma got to him" statements, i.e. not quite an outright admission, but the BBC missed the nuance?

Quotes in the linked BBC article don't directly take credit for the kill, though they do have big "it would be a shame if something was to happen to you" energy.

They certainly seem very happy that it happened, however it happened.

Or is there some kind of wartime law that allows traitors sentenced to prison to be executed instead?

Ukraine abolished the death penalty in 2000, no exceptions. It did so as part of gaining membership to the Council of Europe.

Even that wasn't the case, if Ukraine didn't abolish it, the death penalty isn't gunning down people in another country's streets.

Killing combattants in the battlefield is allowed in the laws and customs of war, but this happened near Moscow, to a civilian, so that's not applicable in the slightest. There are no exceptions for "traitors" either. A civilian convicted of high treason is still a civilian.

I cannot find any way this killing would be legal, assuming it was ordered and/or executed by Ukraine.

Or are the Ukrainian services somehow claiming he was resisting arrest?

Ukrainian law enforcement has no jurisdiction over Moscow, its surroundings, and Russia in general. Ukrainian secret services aren't entitled to arrest people, even Ukrainians, outside of Ukraine.

The way it's supposed to work, if you want to arrest someone who fled to another country, is through an Interpol Red Notice. Said country has no obligation to comply with said notice.

To answer a comment properly, Ukraine does apply the concept of universal criminal jurisdiction (UJ) to "ordinary crimes" (source Amnesty, pages 25 and 121, see also Criminal Code Art. 7 & 8). However, this means Ukraine can consider people criminally liable for crimes committed abroad, not that they are granted the power to arrest them abroad.

Of course, half the point of having secret services is to do things you aren't allowed to do. As a matter of politics, it doesn't matter all that much what's legal or not, it matters what you can get away with. Russia doesn't have much capacity to arrest and try Ukrainian leadership, and vice-versa. So "what you can get away with" is a very large category.

AmiralPatate
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  • Ukraine can easily give itself formal extraterritorial jurisdiction on some matters, like some other, more powerful countries have done in spades. The bit where you claim that they haven't done that needs some citation. (Note that I'm asking strictly from an Ukrainian perspective, not whether extraterritorial jurisdiction is generally accepted in international relations, etc.) – the gods from engineering Dec 07 '23 at 09:59
  • @Fizz Ukraine has universal criminal jurisdiction laws, but that gives them the ability to charge someone with a crime committed outside of Ukraine, not to arrest or execute them outside of Ukraine. I can amend my answer to touch on that. – AmiralPatate Dec 07 '23 at 10:10
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    As another example for "extraterritorial jurisdiction", the USA has it as an official policy to launch a military invasion of The Hague in the event the ICC tries to arrest one of their service members. – vsz Dec 07 '23 at 11:30
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Or maybe it's another one of those "karma got to him" statements, i.e. not quite an outright admission, but the BBC missed the nuance?

Yes, it sounds like "karma got to him".

See Andriy Yusov (Spokesman, GUR) В Росії застрелили Іллю Киву — це спецоперація СБУ — Cуспільне Новини.

Only anonymous sources admit that this is GUR's work: Киву ліквідувала СБУ – джерела | Українська правда.

As you mentioned, Kyva was sentenced to 14 years, not to death: У Слідкомі РФ повідомили обставини вбивства ексдепутата Киви.

References:

The liquidation of Kyva was confirmed by sources in law enforcement agencies.

According to the information from sources, "the liquidation of the top traitor, collaborator and propagandist Illya Kyva is a special operation of the SBU [Ukrainian intelligence agency]. The criminal was liquidated with small arms."

...

As Andriy Yusov, the spokesman of the GUR at the Ukrainian Ministry of Defense of Ukraine, said on the air of the telethon "Edyny Novyni", "the fate of Illya Kyva awaits every traitor of Ukraine."

"Yes, we can confirm that Kyva is done ["всьо"], and the same fate will befall other traitors of Ukraine, as well as the sycophants of the Putin's regime," Yusov said.

Speaking about Kyva, Yusov also said that "justice has different forms."

В Росії застрелили Іллю Киву — це спецоперація СБУ — Cуспільне Новини

Timur Shtatland
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