Regulation of The Wagner Group under International Humanitarian Law

By: Abhinand Siddharth Srinivas

Published on 13.03.2023

The Wagner Group appears to be a catch-all term for an entity providing military and security services which support Russian military operations. The group is hired not only for direct action, combat, or assault but also to train and equip elite militia to perform security functions. Wagner’s activities in Syria, Mali, and more prominently in the Central African Republic, have attracted criticism at the UN due to frequent rapes, massacres, indiscriminate killings, occupying of schools and looting of humanitarian organisations the group has committed.

Since Russia began targeting Ukraine in 2022, Wagner has recruited thousands of individuals to join the battlefield to support Russian military operations. As per British intelligence, 80 per cent of Wagner’s 50,000 soldiers are convicts serving time in jail for committing rape, murder, serial killings, robbery and kidnapping. 

One of the horrific incidents committed by the Wagner Group in Ukraine is the kidnapping, torture and killing of Ms Olga Sukhenko, mayor of Motyzhyn, Kyiv region, and her family. Three members of the group and five Russian soldiers shot the mayor's son in the leg to retrieve information and later executed him with a shot to the head in front of the family. After that, the mayor and her husband were beaten up and killed. In a Facebook post, Ukraine’s prosecutor general, Ms Irina Venediktova, claimed that the investigations by Kyiv Regional and Kyiv-Svyatoshinsky District Prosecutor's Office have enabled the identification of all the persons involved in the killings and sought further information on any underreported incidents related to Wagner.

Wagner’s killing of Ms Sukhenko and her family raises essential questions regarding regulating mercenaries and private military security companies (PMSCs) under international humanitarian law (IHL). Although there are a few notable developments in regulating mercenaries, the same is not valid for PMSCs. Moreover, PMSCs operate in a grey area of IHL due to the lack of clarity regarding the obligations and responsibilities of such groups. Against this background, this article seeks to understand how the present rules of IHL can be made applicable and enforced against PMSCs such as Wagner. 

For the sake of brevity, the post is divided into three sections. Section one addresses the challenges of classifying the Wagner Group as mercenaries or private military security companies under IHL. Next, section two addresses the Wager Group members' responsibility and Russia's international responsibility for the war crimes and gross violations of IHL committed during the Russia-Ukraine war. 

1. Wagner Group: Mercenaries or Private Military Security Companies?

The rules and obligations of conduct during hostilities are dependent on the classification of the nature of the conflict (as either an international armed conflict or a non-international armed conflict) and the individuals taking part in the conflict (as either combatants, civilians or mercenaries) under IHL. As the hostilities in question are between two states- namely, Russia and Ukraine- it is safe to classify it as an international armed conflict. However, on the other hand, the classification of members of Wagner Group as mercenaries, combatants or civilians is complex. 

Three challenges affect the classification of the Wagner Group under IHL. First is the lack of transparency regarding the group’s structure, organisation and operations. While reports indicate that the Wagner Group acts as per the instructions of the GRU, these have not yet been confirmed by other sources or acknowledged by the Russian government. Second is the difficulty in defining the entity, which highlights the legal ambiguity regarding the form of registration of the organisation, which has been described as a private military company, a paramilitary group, and a semi-security force. Only in September 2022, did the group register as a company in Russia.  Third, and most importantly, the Russian government denies the existence of the Wagner Group as Russian law forbids private military groups and mercenaries under domestic laws. Nevertheless, the founder of Wagner, Yevgeny Prigozhin, has made public statements about the existence of the group and its achievements in Ukraine. 

1. Mercenaries

At the outset, it may be tempting to qualify members of the Wagner Group as mercenaries under Article 47 of the Additional Protocol I of the Geneva Conventions (AP I). But the six cumulative conditions for a person to be considered a mercenary cannot be applied to a member who possesses a Russian nationality or is a resident of Russia. One of the considerations under Article 47 AP I is that mercenaries should not be national or a resident of a Party to the conflict or be a member of its armed forces. 

It might be easier to consider the Wagner Group mercenaries when involved in Syria, Mali or the Central African Republic. But, in the case of Ukraine, members of Wagner may not be termed mercenaries because most have Russian nationality. However, those individuals hired from outside may still be considered a mercenary, provided that the conditions under Article 47 AP I have been met. 

Being a mercenary in violation of international law. For instance, the Law of War Manual (para. 4.21) issued by the Department of Defence, United States of America, notes that “the act of being a mercenary is not a crime in customary international law nor in any treaty to which the United States is a Party.” If they are arrested, mercenaries are not entitled to prisoner of war status, but the detaining power may grant them such status. They must be treated humanely and given the fundamental guarantees under Article 75 AP I. They may be prosecuted for being mercenaries only in the national jurisdiction of the detaining power, provided that the national laws designate mercenarism as a distinct crime. 

1. Private Military Security Company 

Another possible categorisation which could be beneficial to understand the Wagner Group is as a private military security company (PMSC). While the definition of a PMSC is ambiguous under IHL, these are private entities that provide military or security services, including “armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel” (see ICRC casebook). Therefore, in consideration of their work across the world in providing security services, training militia, and engaging in offensive operations, the Wagner Group can be categorised as a PMSC under IHL. 

The question of whether members of a PMSC are combatants or civilians should be determined on a case-by-case basis, due to the lack of any regulation of PMSCs under IHL. 

1. Combatants

Under Article 43 AP I, PMSCs can be considered combatants if they are incorporated into the armed forces or are under the command of a state party to the conflict. However, AP I provides guidance on how the PMSCs can be incorporated into the armed forces, which leaves the matter to national governments to determine how these entities can be recognised. Unfortunately, the difficulty in establishing the link between Russia and Wagner is underscored by Russian authorities' need for public acknowledgement of the group’s existence, mainly because PMSCs are forbidden under Russian domestic law. 

In addition, most of the PMSCs do not follow the stipulations mentioned under Article 4A (2) of the Third Geneva Convention, which requires that members belonging to non-state entities, such as a militia or volunteer corps, may be considered combatants when (a) it is commanded by a person who is responsible for his subordinates; (b) such persons must wear a fixed distinctive sign; (c) carry arms openly; (d) conduct operations by laws and customs of war. Most often, it has been found that many of the PMSCs do not fulfil these conditions, making it difficult for members of Wagner to become combatants under IHL. 

1. Civilians

All individuals, who are not combatants, are civilians under IHL. At the outset, civilians do not have a right to participate in hostilities directly. If a civilian directly participates in hostilities, he may be prosecuted under the national jurisdiction for his actions during the conflict. Such individuals would not be granted prisoner of war status upon capture by the enemy. 

When determining what constitutes direct participation in an armed conflict, an important consideration concerning the PMSCs is the distinction between contribution to war efforts and involvement in an armed conflict. According to the ICRC commentary (para. 1944 on Article 51.3, AP I), direct participation in hostilities would occur when acts of war have been committed, which would cause actual harm to the enemy armed forces. This means that direct involvement does not include actions that could be construed as helping one side or another. For instance, support activities (at pg. 588), including catering, construction and maintenance of bases, would not be regarded as direct participation in hostilities. But, logistics and security personnel, who are called in to support troops on the ground, directly participate in hostilities. 

Therefore, concluding this section, categorising members of the Wagner group as either combatants or civilians is a complex task. This is because the nature, conduct and activities of such PMSCs often fall within the grey zone of international law, as rules and obligations regarding the PMSCs are yet to be developed. Therefore, due consideration should be given to the functions performed by the group and whether such operations can be attributed to Russia. 

1. Responsibility for violations of IHL by the Wagner Group

The obligation to respect and ensure respect for IHL is enumerated under  Common Article 1 of the four Geneva Conventions of 1949, the first and third Additional Protocols, and in customary IHL. This obligation is always applicable, irrespective of whether or not a state is a party to the armed conflict. Common Article 1 distinguishes between two sets of obligations. First is the negative obligation to refrain from encouraging or assisting violations of IHL. Second is the positive obligation to influence the parties to the conflict, to make them respect IHL. Violations of IHL are redressed, either through individual criminal responsibility to punish individuals for war crimes or by attributing acts of individuals or entities to a state. 

1. Individual Criminal Responsibility for violations of IHL

Under IHL, combatants and civilians may be held criminally responsible for the most serious violations of the Geneva Conventions and AP I, commonly referred to as grave breaches, and include wilful killing, torture, inhumane treatment, and wilfully causing significant injury. As serious breaches of IHL are subject to universal jurisdiction, any state may prosecute an individual of any nationality, irrespective of where the offence has been committed. As noted in the introductory part of this article, Ukrainian officials have already started gathering evidence of the war crimes committed by members of Wagner to enable the prosecutors to file charges against the individuals.

Prosecutions for grave breaches of IHL and other war crimes may also be brought before the International Criminal Court (ICC), subject to the relevant jurisdiction requirements being fulfilled. In addition, recent jurisprudence indicates that international criminal tribunals have asserted, as a matter of convention and custom, that all individuals incur criminal responsibility for committing grave breaches of IHL. Therefore, members belonging to a PMSC, such as Wagner, may be tried before the ICC.

In the case of war crimes and grave breaches of IHL, whether the individual is a combatant or a civilian, or whether the act was committed on behalf of the state party to the conflict or in a private capacity, becomes irrelevant. This principle was underscored by the International Criminal Tribunal for Rwanda in the Jean Paul Akayesu Case (para. 443). The main requirement to hold individuals liable is whether the crime is connected to armed conflict. The meaning of ‘connection’ was clarified by the International Criminal Tribunal in Dragoljub Kunarac and Rutaganda cases as acting in furtherance or under the guise of an armed conflict. In addition, an armed conflict must have played a substantial part in the perpetrator’s ability to commit it, his decision to commit the crime, how the crime was committed or the purpose for which it was committed. 

Superiors of those who have committed war crimes can also be held responsible. Superiors can incur liability either for ordering/instructing the commission of the offence or failing to prevent or punish the subordinates despite the knowledge of the commission of war crimes. This responsibility applies to military and civilian superiors (Articles 86 and 87 AP I and Article 28 Rome Statute). Where the PMSCs are part of the armed forces of a state party to the conflict, responsibility for violations of IHL can be attributed to the state. The cases against Slobodan Milosevic, Jean Kambanda and Charles Taylor serve as precedents for holding the heads of state and government accountable for acts committed by their subordinates. 

1. International Responsibility of Russia for violations of IHL by Wagner Group 

Most often, states do not designate the use of PMSCs as their own or publicly acknowledge that the state had authorised the proxy to act under its domestic law. As in the case of Wagner, Russia has denied its existence, despite its founder publicly announcing its achievements. But the attribution of conduct can also be derived from the factual relationship between the state and the non-state entity. For example, a PMSC might qualify as an entity that becomes a part of the State and acts on its behalf based on its nexus with the state (de facto relationship between the state and non-state actor). Alternatively, the conduct of PMSCs may be attributed to a State if it has performed any functions at the state’s instructions or under its direction or control. The jurisprudence of international adjudicatory bodies provides a variety of tests to establish the relationship between a state and a non-state actor. 

1. Dependence and Control Test

In the Bosnian Genocide case, the International Court of Justice (ICJ) stated that an entity might qualify as a de facto organ of a state if it exhibits “complete dependence” on the state and the state exerts “strict control” over the activities of the entity (paras. 391 - 394). If the entity qualifies as a de facto state organ, it will be treated like other state organs under domestic law. In other words, the conduct of an entity’s activities is attributable to the state. As the parameters of this test are incredibly stringent, it is doubtful to attribute the actions of the Wagner Group to Russia because the prerequisites of dependence and control are not fulfilled in this case. For instance, Wagner is known to have raised its funds through mining and energy contracts in Africa, which makes it not wholly dependent on the Russian state for its existence. 

1. Effective Control Test

In the Nicaragua case, the ICJ created a high threshold to attribute the conduct of private actors to a state. As per this standard, a private actor may qualify as a de facto organ of the state when (a) the state has paid, financed and coordinated or supervised the actions of the group, and (b) the state has specifically directed or enforced the perpetuation of violations under IHL. In other words, prosecutors should establish a high degree of control of the Wagner Group by the Russian government to attribute the activities of the former to the latter. Moreover, any unauthorised conduct that would fall outside the scope of control established under this test would not engage state responsibility because it would be private and not an activity performed on behalf of the state. Despite evidence that Russian handlers had supervised the shootdown of a Ukrainian army transport in 2014, it is doubtful that Moscow’s control reached the level of tactical-level decisions.   

1. Overall Control Test

In a judgment on appeal in the Tadić case, the International Criminal Tribunal for the former Yugoslavia stated that a state is in “overall control” of an entity if it finances and militarily assists the group and coordinates or helps in the planning of the group’s activities. (at 56). For Russia to be held responsible for Wagner’s acts, it does not need to issue specific instructions to commit IHL violations (at 56 and 59). 

The degree of state control over the group’s activities should be determined based on factual considerations of each case (at 47 – 48). Tadić distinguished individuals and private groups. The threshold to establish control was higher for individuals as it would be necessary to show specific instructions to each person. But concerning private groups, the point is lower because of a structure, chain of command, and code of conduct (at 48 - 49). 

When a private group is equipped, financed and organised by a state, it is reasonable to assume that the state controls the head of the group. As per the direction of the state, the commander instructs the fighters to act. Consequently, when overall control of a state is established, the state is responsible regardless of whether it has directed the private group to violate IHL, even when the group acts contrary to the interests of the state (at 49 - 50). 

In the case of Wagner, sufficient evidence exists to establish that Russia has overall control over the activities of Wagner. First, Wagner’s main headquarters is located in Molkino, Russia, in the form of a base that the group shares with the 10th Separate Special Purpose Brigade of Russia’s Main Directorate of the General Staff of the Armed Forces of the Russian Federation (more commonly known as the GRU). This has led many to believe that Wagner is an unofficial arm of the GRU. Second, members of the Wagner group are known to openly train at a site next to a Russian aerial base. Third, Russian army-grade weaponry is being used by Wagner in combat. Wagner’s attack at Deir Ezzor using heavy armaments indicates that Russia has equipped the group with weapons solely available to the Russian army. A BBC exposé also reveals that Wagner commonly makes requests, and previously, its supply order included assault rifles, night vision goggles, compact radar systems, T-72 tanks and 120-mm mortars.

Moreover, Russia has recently agreed to supply the group with battle shells following a fallout between Wagner’s head Prigozhin and Russian Defence Minister Sergei Shoigu and Chief of the General Staff Valery Gerasimov. Fourth, and most importantly, the objectives of the Wagner are primarily aligned to achieve Russian military goals. For instance, Russia had initially claimed that its brave paratroopers had liberated the strategic village of Soledar near Bakhmut. But later, they retracted the statement by crediting Wagner fighters for capturing the strategically important point. Despite the dispute over taking credit for the capture of Soledar, what is important here is that both the entities- Russia and Wagner- were acting side-by-side to achieve the same military objective- the capture of the strategic village of Soledar. Following the capture of Soledar, a US-based Institute for the Study of War has reported that Russian soldiers are rotating into Bakhmut to replace exhausted Wagner soldiers. 

Indeed, Russia has consistently denied any connection to the Wagner Group. So far, no adjudicative body has made a formal ruling regarding the attribution of the acts of Wagner to Russia. But the group has been involved in the invasion of Ukraine since February 2022, where commandos were reportedly tasked with assassinating Ukrainian President Volodymyr Zelensky. Moreover, intelligence gathered by various countries also highlights the role played by Wagner in the ongoing hostilities. For instance, German intelligence reports also allege the part of Wagner fighters in the Bucha killings. In addition, UK intelligence posits that the group commands more than 50,000 fighters, who have played a vital role in capturing the Ukrainian city of Bakhmut. 

1. Conclusion

The inherent challenges in understanding the rights and obligations of PMSCs, based on their classification as mercenaries or civilians or combatants, underscores the need to regulate the conduct of such groups under IHL. Despite these challenges, some basic rules still apply to how such groups carry out their activities during armed hostilities. Most importantly, individuals must respect the laws prohibiting gross violations of IHL or war crimes, including wilful killing, torture, rape, wilfully causing grave injuries and inhumane treatment. 

The enforcement of such obligations may occur at the domestic or international level. At the domestic level, national jurisdiction must permit the prosecution of such crimes under its jurisdiction. In the case of Ukraine, it is already clear that many charges have been filed in the courts for war crimes committed by the members of the Wagner Group and Russian officials. Responsibility at the international level may be established by relying on the overall control test established by the Tadić judgment of the International Criminal Tribunal for Yugoslavia. Although Russia has denied any connection to the Wagner group, evidence continues to indicate Russia’s involvement in training and providing ammunition for the group.