A photo published by the Security Service of Ukraine reportedly shows Wagner Group mercenaries at an unknown location
Russia’s invasion of Ukraine has sparked international outrage over what many politicians, scholars, and analysts claim to be illegal use of force under international law. While the invasion is widely categorized as illegal, questions remain about the legality surrounding Russia’s use of the Wagner Group (“Wagner”) as a belligerent and whether protections under the laws of armed conflict (“LOAC”) apply to them.
Wagner is a private military company (“PMC”) founded by Yevgeny Prigozhin and based in St. Petersburg, Russia. Wagner has most recently been seen as the spearhead of Russia’s offensive to capture Bakhmut, a small city in the Donetsk Oblast in eastern Ukraine. Wagner has also been instrumental in Russian war efforts in other regions of Ukraine, most notably, the capture of Soledar, a town in the Donetsk Oblast. Furthermore, Wagner has been accused of violating the LOAC via their alleged role in the massacres in Bucha.
Following the issuance of an arrest warrant for Russian President Vladimir Putin by the International Criminal Court, it is clear the international community seeks to hold accountable those who have violated international law. As the war rages in Ukraine, it is increasingly likely that members of Wagner will be brought before international criminal courts. Wagner’s prominent role in Ukraine raises questions regarding it and its members’ legal status under international LOAC. The legal status of Wagner and its members is critical, as different statuses result in the application of different international laws. This article better informs the discussion about Wagner’s legal status under international law and the various implications of whatever status it may receive.
Legal Status of the Russia-Ukraine Conflict
For the laws of armed conflict to be applicable, there must be an ongoing armed conflict. Russia and Ukraine are currently involved in an armed conflict; thus, the LOAC are applicable. Because the events between Russia and Ukraine are categorized as an armed conflict, the legal statuses of belligerents are imperative when determining which LOACs apply. The foundational level required for determining a belligerent’s legal status is determining what type of armed conflict the belligerent is participating in based on the 1949 Geneva Conventions. The 1949 Geneva Conventions recognizes two forms of armed conflict: international armed conflicts under Common Article 2 and non-international armed conflicts under Common Article 3.
International armed conflicts (“IAC”) under Common Article 2 broadly encompass all cases of declared war—or any armed conflict—between two or more states, regardless of if a state recognizes the hostilities as a “war.” Regarding which international law(s) govern IACs, all four Geneva Conventions, Additional Protocol I for those that have ratified it, and customary international law (a practice among states that is consistent so as to make it a custom) apply. Non-international armed conflicts (“NIAC”) under Common Article 3 are armed conflicts between the government and forces of one or more armed sub-national groups (terrorists or insurgents) within the state’s territory. In NIACs, no other portion of the Geneva Conventions besides Common Article 3 applies; however, Additional Protocol II and customary international law applies.
For this article’s purposes, the applicable conflict status is a Common Article 2 international armed conflict; Ukraine and Russia are each sovereign states, both parties to the four Geneva Conventions. Russia not officially recognizing their efforts in Ukraine as a war is immaterial to labeling the conflict as an IAC, as an application of the label does not require recognition of a state of war by any belligerent.
Legal Combatant Status of Wagner
Now that the Russia-Ukraine conflict has been defined as an international armed conflict under Common Article 2, the next step in the analysis is determining the legal status of the belligerents. International law recognizes two broad categories of combatants: lawful combatants and unlawful combatants. Under Additional Protocol I, Article 43, lawful combatants are typically members of the armed forces of a party to an armed conflict—they can be branches of a state’s armed forces or be state actors. Lawful combatants are given the combatant’s privilege of having the ability to legally kill or be killed, along with receiving protections as prisoners of war. Unlawful combatants are typically civilians, mercenaries, spies, or terrorists who directly participate in an armed conflict. These combatants are not entitled to prisoner-of-war protections under Common Article 3, however, they are provided “humane treatment” based on international humanitarian law.
As a general matter, both the armed forces of Ukraine and Russia are categorized as lawful combatants as they are the armed forces of their respective states. However, the gray area lies within Russia’s use of Wagner. In order to conclusively determine the legal status of Wagner under the LOAC, one must consider whether Wagner members are considered lawful or unlawful combatants under international law.
As previously mentioned, mercenaries are considered unlawful combatants who do not enjoy the same privileges as lawful combatants. One could reasonably conclude, based on generalized information and a rudimentary understanding, that Wagner is a mercenary group, thus an unlawful combatant. However, Wagner’s legal classification under international law is a lot more nuanced. Additional Protocol I, Article 47 defines a “mercenary” as any person who:
(a) is specifically recruited locally or abroad in order to fight in an armed conflict; (b) … takes a direct part in the hostilities; (c) is motivated to take part in hostilities by private gain … and is paid in excess of that of combatants of similar ranks and functions; (d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to a conflict; and [emphasis added] (f) has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces.
It has been widely observed that Wagner recruits abroad and domestically, even recruiting Russian convicts. Furthermore, one can assume that the recruits are motivated by the private gain to fight in Ukraine, especially the convicts who were promised reduced or commuted sentences. However, subsection (d) of Additional Protocol I, Art. 47 seems to largely disqualify many Wagner members as a “mercenary,” since a vast majority are of Russian nationality. Granted, there is a presence of foreign nationals who fight on behalf of Wagner, however, the vast majority of Wagner soldier fighting in Ukraine are seemingly Russian. It is difficult to foresee an international criminal court, upon reflecting on this evidence, concluding Wagner is not a Russian-national-based organization. As such, it would seem that Wagner would not be considered a “mercenary” group, nor Wagner members “mercenaries,” under Additional Protocol I, Art. 47.
Despite likely being deemed “not a mercenary group” under the LOAC, such a classification does not automatically make Wagner and its members “lawful” combatants. Wagner is not an officially recognized branch of Russia’s armed forces. Furthermore, Wagner’s “non-mercenary” label does not automatically relegate Wagner and its members to the “unlawful” combatant status either, since a party may become a lawful combatant under a Common Article 2 IAC if they are deemed a “state actor.”
Wagner as a State or Non-State Actor
In order to determine whether Wagner is a lawful combatant, the analysis shifts to inquiring as to whether Wagner, as an organization, can be considered a state or non-state actor. According to Additional Protocol I, Article 43,
“The armed forces of a party to a conflict consist of all organized armed forces, groups, and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.”
It seems the drafters of Additional Protocol I, Article 43 intended to include other groups that do not formally belong to the armed forces of a state into the definition of a lawful combatant. In addition, Prosecutor v. Dusko Tadić, a 1999 case arising from an international criminal tribunal on the former Yugoslavia, outlined that a conflict may become an international conflict if “(i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.” Case No. IT–94–1–T (1999). Therefore, based on current international legal doctrine, a party not categorized as a formal member of a state’s armed forces can still be deemed a state actor if it acts on behalf of, and falls under the command of, that particular state. As such, militias, terrorist organizations, or PMCs may be considered state actors.
Wagner has a history of collaboration with Russia, so much so that it has been given the nickname “Putin’s Private Army.” Yevgeny Prigozhin is a Russian oligarch with a close relationship with Putin. Prigozhin began as a caterer for Putin, earning him the nickname “Putin’s Chef.” In 2014, Prigozhin founded Wagner, which would later be instrumental in the annexation of Crimea. Termed the “little green men,” Wagner’s troops dressed in Russian military attire wielded guns used by the Russian army and had Russian license plates on their trucks. Wagner troops would later carry out false-flag attacks within Crimea, providing Russia with a justification for invading. Additionally, Wagner operates in other states with the assistance of Russian military bases, supplies, and equipment. The U.S. Department of Defense released a report stating that Russia has provided Wagner forces with supplies and equipment in Libya. The report detailed that Russia supplied military aircraft, armored vehicles, and air defense systems. Russia has also provided military aircraft to Wagner forces in Syria, as well as Wagner utilizing Russian military bases. Russia also reportedly issues Wagner members with passports from a division within the Central Migration Office which predominantly provides passports to individuals within Russia’s Ministry of Defense. Lastly, following an engagement with U.S. forces, wounded Wagner troops were evacuated from Syria and sent to Russian military hospitals.
It is quite clear that Wagner operates on behalf of Russia. The relationship between Prigozhin and Putin, the support Russia provides Wagner, and their coordinated military operations point toward a deeper partnership. The collaboration on critical foreign policy objectives provides one with the assumption that Wagner is simply acting on behalf of Russia in pursuit of Russia’s political goals. However, the other necessary element for a party to be categorized as a state actor is being under the command of that state. An analogous court case litigated in the Hague District Court focused on the downing of Malaysia Airlines Flight 17 (MH17) by pro-Russian separatists in Ukraine in 2014. In its decision, the court placed added emphasis on the necessity of a party exercising “effective control over subordinates.” At this point, it is purely speculative that Wagner is operating under the control of Russia. The power structure within Wagner is far from transparent, making it difficult to ascertain whether Wagner is an autonomous entity or merely being operated by Putin as a way for Russia to avoid international scrutiny. Solid evidence which demonstrates the relationship between Wagner and Russian leaders is required in order to make the determination as to whether Wagner is directly controlled by Russia.
Restricted by the lack of evidence pertaining to Russia’s command over Wagner, it is unlikely that an international court would find Wagner to be a state-actor. Therefore, it is expected that Wagner and its members would be deemed unlawful combatants under the LOAC. Thus, they would not be awarded the protections afforded by being lawful combatants, most importantly receiving prisoner of war status upon capture.
Conclusion
The Russia-Ukraine conflict is between two states, thus an international armed conflict under Common Article 2. Although seemingly sharing many characteristics with mercenaries on its face, Wagner does not fit the definition of a “mercenary” under international law. Consequently, Wagner’s legal status depends upon whether it is a state or non-state actor. The lack of evidence regarding Russia and Wagner’s command structure is dispositive to the underlying question of Wagner’s status as a lawful or unlawful combatant. Based on current international law, it appears that Wagner would be considered a non-state actor and, thus, an unlawful combatant.
Determining the legal status of private military companies is an important aspect of the laws of armed conflict. Russia is not the only state that has utilized the services of PMCs. Recall that the United States employed Blackwater during the invasions of Afghanistan and Iraq. A state’s use of PMCs could be a major loophole in holding states accountable for their actions. As proven by Putin, PMCs offer the ability for world leaders to exercise plausible deniability when undertaking actions in pursuit of their own policies. One can hope that the international community will consider PMCs employed by states to be state actors following the atrocities committed in Ukraine.
*The views expressed in this article do not represent the views of Santa Clara University.
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