Status of the Wagner Group and can Russia be held accountable for their crimes?
Authors: Dr. Gregory P. Noone and Sindija Beta, PILPG, and Camila Rodriguez, Adam Zuro, Bailey Higgs and Rene Kathawala, Orrick, Herrington & Sutcliffe
Background and Relationship with Russia
The Wagner Group (“Wagner”) appeared in 2014 as a military force “for hire” that assisted Russia in the illegal annexation of Crimea. Since its inception, Wagner has also been hired by Syria and various African nations to provide a wide variety of services, including military training, combat operations, spreading of disinformation, and aiding in certain mining operations. Wagner has also been heavily involved in the full-scale invasion Russia has been conducting in Ukraine since February 2022. Wagner has been accused of committing several war crimes including rape, mass murder, torture, and looting. However, up until June 2023, connecting the Russian government to Wagner was challenging for the international community as the Russian government has historically denied any connection to Wagner. However, in June 2023 Nikolai Pankov (Russia’s Deputy Defense Minister) announced that “volunteer formations” would be asked to sign contracts with the Ministry of Defense, thereby publicly unraveling Russia’s involvement with Wagner and opening the door for the international community to connect Wagner to the Russian government. The announcement prompted Yevgeniy Prigozhin, Wagner’s leader at the time, to reply that Wagner would not sign contracts. On June 23, 2023, Prigozhin released a series of videos denouncing the Russian military and announcing that Wagner would “march for justice” against it. However, the “rebellion” only lasted 24 hours and despite Wagner’s successful advance towards Moscow. On June 24, 2023 Prigozhin ordered the Wagner fighters to retreat in order to “avoid bloodshed.”
Prigozhin is said to have halted the advance on Moscow after brokering a deal with President Vladimir Putin, which allowed Prigozhin to depart for Belarus. Putin told Wagner fighters that they could join the Russian army, or they could go to Belarus with Prigozhin. In stark contrast to earlier statements from Russian government officials, soon after the Wagner uprising, Putin made a statement saying that the Russian government had “…fully financed this group from the Defense Ministry, from the state budget.” According to public statements, from May 2022 to May 2023, the Russian government allocated 86.2 billion rubles ($1 billion USD) to Wagner in the form of salaries and incentives and an additional 80 billion rubles ($940 million USD) to the Concord company (allegedly Wagner’s owner) for supplying food and services to the Russian army. While it had been announced that Prigozhin would go to Belarus following the abandoned revolt, Prigozhin disappeared from the public eye after June 24, 2023. There were multiple media reports speculating about Prigozhin’s whereabouts until August 23, 2023, when it was announced that Prigozhin, along with nine other people including Prigozhin’s right-hand man Dmitry Utkin, had been killed in a private jet crash.
The events from June 2023 have opened the door for the international community to connect Wagner to the Russian government, which may help in holding Russia accountable for Wagner’s actions. For example, after Prigozhin publicly refused to sign the aforementioned contracts with the Ministry of Defense, his press office’s Telegram wrote on June 11, 2023, that Wagner was already “built into the overall system…[and] according to the orders of Gerasimov and Shoigu, complies all its actions and fulfills the tasks set out by Army General Surovikin.” This is a significant statement because, if Wagner is part of, or subsumed into, the Russian military, the result is that Russia is wholly responsible for Wagner’s actions and no further analysis is necessary.
Are Wagner Members Mercenaries and Is Russia Accountable?
While many articles colloquially describe Wagner as a mercenary group, Wagner’s legal status is up for debate and depends on a myriad of facts and circumstances. On the one hand, if Wagner is deemed to be part of Russia’s military and the Russian government can be considered to exercise control over the acts of Wagner, Russia could be held responsible for Wagner’s behavior just as Russia is responsible for the Russian armed forces’ actions. On the other hand, if Wagner is deemed to be a mercenary group under international law, it may be less likely that Russia would face any consequences for Wagner’s actions unless it could be established that Wagner is receiving orders from the Russian government.
Generally, in an international armed conflict, a mercenary is any person who meets the following six-part definition under Article 47 of the Additional Protocol I to the Geneva Conventions of 1949 (“Protocol I”). All six prongs must be satisfied for a person to meet the definition of a mercenary:
A mercenary “is specially recruited locally or abroad.” “Specially recruited” means that the group intentionally and specifically recruits individual members to participate in armed conflicts.
A mercenary “does, in fact, participate directly in the hostilities.”
A mercenary “is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party.”
A mercenary “is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict.”
A mercenary “is not a member of the armed forces of a party to the conflict.”
A mercenary “has not been sent by a State that is not a party to the conflict on official duty as a member of its armed forces.”
Whether Wagner is considered a mercenary group under the narrow definition under Protocol I, will depend on the conflict in question. For example, it is unlikely that a majority of Wagner members would qualify as mercenaries in Russia’s full-scale invasion of Ukraine, given that many members are reportedly Russian, which is a “party to the conflict” (and as a result fails the fourth prong above). In addition, if Wagner is already “built into the overall [military] system” and complying with “all its actions and fulfills the tasks set out by Army General Surovikin” then there is an argument to be made that they are in fact part of the Russian military (and as a result fails the fifth prong above). Outside of Ukraine, however, Wagner has operated in many different states and regions across the world, including in Syria, Libya, Mali, Sudan, and the Central African Republic. As Russia is not a “party to the conflict” in these regions—because it is not directly involved in the conflict there—Russian Wagner members could potentially be deemed mercenaries if they meet the other five prongs. Mercenary status would have to be determined on a case-by-case basis. Nonetheless, it is important to note that Russia withdrew its state party status from Protocol I in 2019 and the Protocol has not yet gained a customary law status
One convention that may be used to attribute some responsibility to Russia for a connection to Wagner as a mercenary group is the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, adopted by the United Nations General Assembly of 1989 (the “1989 Mercenary Convention”), which established criminal offenses for the recruitment, use, financing, and training of mercenaries and imposes a number of obligations on states.
Article 1 of the 1989 Mercenary Convention uses Protocol I’s definition of mercenary and further expands it to situations where a person:
Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:
a. Overthrowing a government or otherwise undermining the constitutional order of a state; or
b. Undermining the territorial integrity of a state;
Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation;
Is neither a national nor a resident of the state against which such an act is directed;
Has not been sent by a state on official duty; and
Is not a member of the armed forces of the state on whose territory the act is undertaken.
Under Article 5 of the 1989 Mercenary Convention, states are prohibited from recruiting, financing, or training mercenaries, including for “…the purpose of opposing the legitimate exercise of the inalienable right of people’s to self-determination, as recognized by international law, and shall take, in conformity with international law, the appropriate measures to prevent the recruitment, use, financing or training of mercenaries for that purpose.”
While it could be argued that Wagner’s actions both in Russia’s full-scale invasion of Ukraine and in other international conflicts could meet the definitions of mercenary under Article 1 of the 1989 Mercenary Convention, Russia is not a signatory to the convention, and therefore it is not clear whether Russia could be deemed to have failed any state obligations under Article 5 of the 1989 Mercenary Convention (even with Putin’s admission that Russia financed Wagner).
There is very limited case law concerning mercenary activity in armed conflicts. In those limited cases where legal actions were taken, they involved individual members of a mercenary organization, not the organization itself, and much less the state connected to such a mercenary group.
Can Wagner’s Actions be Attributed to Russia under Other Principles of International Law?
To determine whether Wagner’s actions can be attributed to Russia under international law, a starting point is the Articles on the Responsibility for States for Internationally Wrongful Acts (the “ASR”). The ASR establishes criteria for determining whether states are legally responsible for certain wrongful acts, including the wrongful actions of groups such as Wagner.
The ASR provides that an act by a person that is not an “organ” of the state can be attributable to the state in one of four ways, two of which are relevant to the analysis of Russia’s responsibility for the actions of Wagner. First, ASR Article 5 finds attribution to a state when a person or entity that is not an organ of the state is “…empowered by the law of that State to exercise elements of the governmental authority…provided the person or entity is acting in that capacity in the particular instance.” Second, ASR Article 8 finds attribution to a state if, “[t]he conduct of a 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.”
The essence of ASR Article 5 is the privatization of a public function and covers a narrow set of circumstances. To attribute responsibility to a state, ASR Article 5 sets out three requirements: (i) the entity must be empowered by the internal law of the state; (ii) the entity must be authorized to exercise prerogatives of public authority; and (iii) the conduct has been committed when the person or group of persons acted in that capacity. If these requirements are satisfied, then the entity’s conduct “shall be considered an act of the State…even if it [i.e., the entity] exceeds its authority or contravenes instructions.” In other words, Russia need not have ordered Wagner to commit atrocities in order for those atrocities to be attributed to Russia. When weighing the requirements, the key question is whether, even if only to a limited extent or in a specific context, the entity has been empowered to exercise specified elements of governmental authority, even if that entity “has not been officially empowered by law to exercise elements of the governmental authority” (paras 92 – 93 (emphasis added)). For example, an entity may be empowered to act by domestic law even if its exercise of authority involves independent discretion or power to act or if the conduct was not in fact carried out under the control of the state (97 – 98).
Following the requirements outlined above, to determine whether Wagner’s actions could be attributed to Russia, one must establish that (i) Wagner has been empowered by Russian law; (ii) to exercise the military elements of the Russian government’s authority; and (iii) such conduct has been committed by Wagner in such capacity.
With respect to the first element regarding empowerment by Russian law, Russian law prohibits the “creation of an armed formation (association, detachment, squad or other group) not provided for by federal law, as well as the leadership of such a formation or its financing.”[1] Punishment for state officials committing such crimes is provided by Article 205.1 Section 2 of the Russian Criminal Code, which also classifies such financing under the heading of “terrorist activities.” Russian law does not specify whether the prohibition of the “creation of an armed formation” applies only to domestic armed formations or also to those operating outside Russia’s borders.[2] Should the prohibition only apply to armed formations inside Russia, as discussed later, this law may nevertheless be relevant because Wagner had trained in Russia.
Thus, Putin’s admission that, at least for a time, the Ministry of Defense funded Wagner gives rise to at least two questions: (i) was Wagner “provided for by federal law” (outside of the Defense Ministry’s funding); and (ii) if not, did Wagner’s total financial support by the Ministry of Defense suffice to make Wagner ”provided for by federal law”? The predicate to answering these questions is determining what it means to be “provided for by federal law.” It is of note that no known Russian law provides for the creation of Wagner. Nonetheless, if Wagner was in some way “provided for by federal law” as an “armed formation,” this would support the position that it was “empowered” by Russian law to exercise what would otherwise be a government prerogative. However, if Wagner was not “provided for by federal law,” then this would support an allegation that Russian officials at the Ministry of Defense financed armed activity in violation of Article 208 Section 1 of the Russian Criminal Code, which Russia itself implies is terroristic and which could, with additional detail, trigger Russia’s obligation to investigate under The International Convention for the Suppression of the Financing of Terrorism Article 9(1).
Alternatively, the existence of a contractual relationship between the state and the private entity may be enough to establish a sufficient link to show express authorization or ratification by the state.[3] Moreover, Putin’s admission that Russia provided the financing for Wagner could mean that there are contracts between Russia and Wagner, and such contracts could be analyzed to determine whether Wagner was empowered by Russian law. There is not enough information in the public domain to make this determination, and even if the contracts were publicly available, there is no clear standard under ASR Article 5 of what contractual language alone would be sufficient to find that a state had authorized or empowered a private entity. For example, it is unclear whether a contract that specifies a broad delegated function will suffice, or whether it must detail the precise activities that the non-state entity is authorized to carry out.
In terms of the second and third requirements, Russia’s call for Wagner to sign a contract with the Ministry of Defense and Putin’s confession of financing Wagner makes certain acts, such as participation in combat in Ukraine, appear to be of a governmental, rather than a private nature. Under ASR Article 7, states may be subject to liability via ASR Article 5 for ultra vires conduct, i.e., conduct that is either in excess or contravention of the authority delegated, so long as the ultra vires conduct was performed during the commission of the governmental function. Ultra vires is a Latin phrase, meaning “beyond the powers” and plainly means an action by a company or its agent (such as Wagner) that exceeds the legal scope of its authority. In the case of Russia’s full-scale invasion of Ukraine and other conflicts, ASR Article 5 may still be invoked even if Wagner’s behavior were ultra vires, i.e., beyond or inconsistent with any instructions given by Russia, provided that it was performing governmental functions during this alleged criminal behavior. This determination would be a fact-specific and fact-intensive inquiry, which would require evidence beyond what is currently in the public domain. This fact-specific determination could include conflicts outside Ukraine; however, it is not as likely to find attribution in such scenarios as it appears that Wagner was hired by some states for their own internal conflicts.
Under ASR Article 8, if fighters violating the Law of Armed Conflict were acting under a state’s instructions, direction, or control at the time of their actions, then a court may attribute such actions to the state. Under international law, “control” may be interpreted in one of two ways: the “effective control” test, which requires detailed or tactical control over the acts that violate international law, and the “overall control” test, which considers the broader relationship between the state and the non-state actor. For purposes of ASR Article 8, the International Court of Justice (“ICJ”) uses the “effective control” test, which is more stringent and would require “showing that Russia directed or enforced the perpetration of human rights violations and international crimes…” by Wagner. Given that there is little information on the command structure of Wagner’s military operations and Russia’s historical denial of a connection to Wagner, attributing Wagner’s actions to Russia under the “effective control” test would be challenging as it would require an operation-by-operation analysis and only those operations in which Russian forces commanded and led the assault would count. On its own, Putin’s admission of financing Wagner is insufficient to establish attribution under the “effective control” test.
On the other hand, some have argued that there is enough evidence to show that Wagner is under Russia’s “overall control” and there may be a push in the international community to use the “overall control” test instead of the “effective control” test. In fact, a Dutch court recently found that Russia had “overall control” of separatists in Ukraine during the downing of the civilian aircraft MH17, and in its conclusion the Dutch court pointed “… to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted ‘mutually coordinated military operations’.” While the ICJ will have the ultimate say on state responsibility, this recent Dutch ruling may open the door for the ICJ to consider using the “overall control” test instead of the more stringent “effective control” test if a case was ever brought against Russia. Until then, more information will be needed in order to attribute Wagner’s actions to Russia under the ASR.
Conclusion
While countries have publicly denounced Wagner and governments such as the United Kingdom have declared that Wagner has been a tool used by Russia to further its international agenda, more information is needed regarding Wagner’s command and control structure in order to be attributed to Russia or for Russia to be held accountable for Wagner’s actions. With respect to accountability via ASR, additional information is needed to make a determination as to whether Wagner acted under a sufficient degree of Russian control, as per Article 8, or – even without such control – was empowered by Russian law to act, as per Article 5. Nevertheless, Putin’s declaration that Wagner has been financed through the Russian budget and the statement by Prigozhin regarding Wagner’s compliance with the orders of Russian officials Gerasimov and Shoigu, indicates that Wagner’s actions could be attributed to Russia.
[1] Article 208 Section 1 of the Russian Criminal Code. Note that Article 359 Section 1 of the Russian Criminal Code prohibits the financing of mercenaries; though as discussed earlier, Wagner’s fighters are unlikely to be considered mercenaries in this context.
[2] Participation in such formations on foreign soil is prohibited by Sections 2-3 of Article 208; but only when such participation is against the interests of the Russian Federation.
[3] Kidane, W. (2010). The status of private military contractors under international humanitarian law. Denver Journal of International Law and Policy, 38(3), 411.; Kelemen, B. (2020). Responsibility for Human Rights Violations of Private Military and Security Companies on EU Borders: Case Study of the Contracts of the European Asylum Support Office. EU and Comparative Law Issues and Challenges Series, 4, 164-65.
Photo by Sonia Dauer on Unsplash
