Symposium on PMSCs: Who is Responsible? When Private Military Companies Aren’t Completely Private

[Lindsay Freeman is the director of the Technology, Law & Policy program at the Human Rights Center, UC Berkeley School of Law. She led the drafting of the United Nations’ Berkeley Protocol on Digital Open Source Investigations and developed the OSINT training course for the Institute of International Criminal Investigations. She previously worked for the Office of the Prosecutor of the International Criminal Court and served as a trial lawyer at the San Francisco District Attorney’s Office.

Amanda Ghahremani is an international human rights lawyer, research fellow at the Human Rights Center, UC Berkeley School of Law and a legal consultant to their Tech, Law & Policy program, and a consultant for various NGOs, law firms and universities. She was previously the legal director of the Canadian Centre for International Justice.]

Around the world, states increasingly rely on private companies for security and military functions, particularly during armed conflicts. Some private military and security companies (PMSCs) are truly independent from the state. In other situations, the line between private and state entities is blurred. For example, the majority of Chinese PMSCs are state-owned enterprises and Russian PMSCs run the gamut from quasi-state ownership to covert state-control. When PMSCs violate international law, these complex realities clash with a limited legal framework that fails to account for privatized warfare. As a result, there is a significant accountability gap for the conduct of PMSCs.

While historically, third-party, for-profit involvement in armed conflict was seen as “mercenarism,” this narrowly defined term doesn’t encompass all the types of PMSCs in modern conflicts. There remains a critical need to regulate and hold accountable PMSCs for harmful conduct . To do this, there are three broad avenues available: (1) individual criminal responsibility of specific PMSC personnel; (2) corporate responsibility of the PMSC as an entity; and (3) state responsibility of governments that supply or use PMSCs. This article focuses on the latter, and explores the circumstances in which states can be held responsible for PMSC conduct under international law, using the Wagner Group (Wagner) and Africa Corps’ operations in Mali as a case study.

Wagner is a Russian PMSC whose services were enlisted by the Malian junta in late 2021. At the time, reporting framed the arrangement as a military-technical cooperation between Mali and Russia, even though Russia had not acknowledged the group as its own. Mali initially denied the presence of Wagner, but as evidence emerged of their activities in the country, Mali conceded the involvement of “Russian instructors.” Yet, from their first deployment into Mali, Wagner fighters have allegedly been more than instructors, engaging in combat alongside the Malian Armed Forces (FAMa). Wagner and FAMa reportedly engage in joint military operations, many of which resulted in mass atrocities, including in Danguèrè Wotoro, Moura, Hombori, and Goni-Habé.

In June 2023, after Wagner’s attempted mutiny in Russia, Putin acknowledged and took credit for the group, claiming he paid them more than 86 billion rubles (around $1 billion USD). After the death of Wagner’s leader in August 2023, the Kremlin announced the formation of a new entity under the Russian Ministry of Defense (MOD) called Africa Corps to take over Wagner’s operations in Africa. In late 2024, Africa Corps deployed to Mali and has since subsumed Wagner into its structure. According to some estimates, Africa Corps is comprised of 75-80% former Wagner personnel.

Where a PMSC operates as a state proxy, but is working on behalf of another state client, which state (or states) should be ultimately responsible? To answer this question, the following sections examine whether international law violations by Wagner and Africa Corps in Mali can be attributed to either Russia or Mali, or both, thereby creating a legal obligation on one or both states to cease the harmful conduct and repair the damages caused.

Legal Framework for Attributing PMSC Conduct to a State

As a general rule of customary international law, the conduct of private actors is not inherently attributable to a state, though a state may become responsible for private conduct if certain conditions are met, as outlined in the International Law Commission’s (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA).

Article 4 is clear that the conduct of government organs, or of people or entities who act under the direction, instigation, or control of those organs, can be attributed to the state. The ILC clarifies the term “state organ” is used in “the most general sense” and includes all individuals or entities which make up the organization or structure of a state, regardless of hierarchies of power. If the entity is not deemed an organ of the state, there are still alternative ways in which the entity’s conduct could be attributed to a state, the most relevant being: (1) exercising governmental authority; (2) being effectively controlled by a state; or (3) being acknowledged and adopted by a state.

Article 5 states that the conduct of an entity that is not a formal organ of the state, but which is empowered by the law of that state to exercise elements of governmental authority, shall be considered an act of the state under international law, provided the entity is acting in that capacity. In essence, this provision covers situations where private or semi-private entities, such as state-owned enterprises or PMSCs, perform public functions typically associated with the state (e.g., law enforcement, detention, border control).

Article 8 provides that a person or group’s conduct shall be considered an act of the state if they were acting on the instructions of, or under the direction or control of, the state in carrying out the conduct. This provision outlines the “effective control” test, which was established by the International Court of Justice (ICJ) in the Nicaragua caseand later endorsed in the Bosnia-Herzegovina case. These cases confirm that attribution depends on whether a country “direct[s] or enforce[s] the perpetration of the [wrongful] acts,” (Nicaragua, para 115) and clarify that effective control must be shown “in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons” (Bosnia, para 400).

Article 11 states that conduct not otherwise attributable to a state under Articles 4–10 can still be considered an act of the state if the state acknowledges and adopts the conduct as its own.

If the necessary link exists between a PMSC and a state for attribution, then Article 7 provides that all conduct by the PMSC can be attributed to that state for the purposes of international legal responsibility. This remains true, even if the PMSC engages in conduct outside the scope of authority it was given by the state.

Is Wagner or Africa Corps an Organ of a State?

As mentioned above, in June 2023, Putin admitted that Russia paid Wagner approximately  $1  billion USD, presumably for the group’s role in the Ukraine war. Nevertheless, no Russian domestic law explicitly integrates Wagner as a state organ. The group also operates with notable autonomy and cannot be characterised as fully dependent on Russia. Thus, attribution under Article 4 of ARSIWA is unlikely.

On the other hand, while Africa Corps is referred to as a “company” and not formally designated as an organ of Russia, it is situated within Russia’s MOD with GRU oversight . The ILC is clear that “a state cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law.” De facto integration into governmental structures with a designated military function provides a strong argument that Africa Corps is an organ of Russia.

Mali reportedly paid $10 million a month for Wagner’s services and has incorporated Wagner personnel into its military operations to the extent that some fighters have reportedly worn FAMa uniforms and insignia. However, no domestic law formally integrates them into Mali’s military or elevates them to the status of a state entity or department. Wagner has also carried out operations in the absence of FAMa, demonstrating that they are not fully dependent on the Malian state. As such, it would be hard to argue that Wagner is an organ of the Malian government. Likewise, Africa Corps’ arrangement with Mali follows Wagner’s blueprint and is not indicative of a state organ.

Does Wagner or Africa Corps Exercise Elements of Governmental Authority?

Wagner conducts combat and security operations that are governmental in character. However, Russian law criminalizes PMSCs, so authorization may contravene domestic law. Without Russia’s lawful authorization delegating governmental authority to Wagner, attribution under Article 5 of ARSIWA is doubtful.

Conversely, Wagner provides training, security, and participates in joint operations with Mali’s army based on governmental contracts. The scope of the contractual relationship between Mali and Wagner/Russia is unclear from publicly-available sources, but, as long as these contracts do not contravene Malian law, they evince the official delegation of public authority to Wagner. According to the ILC, a state contract with a private security firm to manage prisons or detention facilities qualifies as a private entity exercising elements of governmental authority. Analogously, if Mali’s contracts with Wagner/Russia legally empowered Wagner under domestic law to exercise the governmental authority of conducting military operations, which is a public function, then Wagner’s conduct could be attributed to Mali. Even if Wagner’s exercise of authority “involves independent discretion or power to act,” attribution to Mali would be possible. Mali appears to have delegated similar governmental authority to the new Africa Corps, which could also bring their conduct under the auspices of the Malian state, though a definitive determination would be premature at this stage.

Is Wagner or Africa Corps Directed or Controlled by a State?

Putin’s financial backing indicates influence over Wagner but evidence of specifically directing operations in Mali is lacking. Wagner likely acted with operational autonomy. The degree to which Russia directs or enforces Africa Corps’ operations in Mali remains to be seen, but assuming Africa Corps maintains Wagner-style autonomy in Mali, it may be difficult to establish the necessary level of Russian control at the military-tactical level.

In Mali, if the contracts with Wagner and/or Russia do not amount to a delegation of governmental authority, then attribution is possible if Mali exercises sufficient control over Wagner or Africa Corps’ activities. There is substantial evidence that Wagner and FAMa jointly executed operations, including those that violated human rights and international humanitarian law. Evidence points to FAMa soldiers having led the operations in some cases, whereas Wagner was in command or operated autonomously in others. In one alleged incident in 2023, Wagner fighters were preparing to execute around thirty men in Diallassagou against the instructions of FAMa leaders. It took Mali’s Minister of Defense, Sadio Camara, to intervene to prevent the massacre. This type of effective control supports attribution to Mali, but each operation would have to be evaluated on a case-by-case basis.

Has a State Acknowledged or Adopted the Conduct of Wagner or Africa Corps?

Russia has acknowledged and, in some circumstances, adopted Wagner’s conduct in Ukraine, however, it has not directly acknowledged nor adopted the conduct of Wagner in Mali.

Mali’s government has not officially acknowledged nor adopted the conduct of Wagner as a whole, but it has taken credit for counter-terrorism operations in which Wagner and FAMa engaged jointly. While Mali has framed Wagner’s presence as “coordination” rather than full integration, FAMa and Wagner forces fought alongside each other in major operations like the takeover of Kidal in November 2023. Foreign Minister Diop specifically told the UN in mid-2023 that Mali’s military “conduct[s] military operations completely autonomously” and that “no other foreign force or pro‑government militia is involved in field operations” despite documentation to the contrary.

In June 2025, Wagner announced its formal withdrawal from Mali and transition to Africa Corps. Mali has not issued any public statement claiming Africa Corps as its own. Instead, Mali has framed the group as an external ally contrary to evidence of a similar security partnership as that of Wagner. The Kremlin has also highlighted defense and security cooperation with Mali, implying a formal role, and recently increased exports of heavy weaponry into Mali for Africa Corps.

Can Both Russia and Mali be Responsible for the Conduct of Wagner or Africa Corps?

Based on current, publicly-available information, it seems unlikely that Wagner’s conduct in Mali can be attributed to Russia. The facts point to a more discernible link to Mali. Conversely, the relationship between Africa Corps and Russia’s MOD and GRU suggests the group may be considered a de facto state organ. If Africa Corps follows Wagner’s contractual and operational playbook in Mali, its conduct may also be attributed to Mali under Articles 5 and 8 of ARSIWA. In this instance, can both Russia and Mali be responsible for Africa Corps’ violations of international law?

Article 47 of ARSIWA confirms that multiple states can be responsible for the same internationally wrongful act. In such cases, each state is separately responsible for the conduct attributable to it, even where that attribution arises from a single course of conduct. This means that Africa Corps’ link to both Russia and Mali makes both countries potentially liable for some or all of Africa Corps’ violations of international law in Mali. The exact damages and distribution of liability will depend on the facts of each case.

There is one specific and limited exception to this rule. Article 6 outlines the scenario where an organ of a state is placed “at the disposal” of another state, such that the organ is temporarily acting for the benefit of and under the authority of the second state. This means that the organ is appointed by the receiving state to perform functions “in conjunction with the machinery of that state and [is] under its exclusive direction and control, rather than on instructions from the sending state.” In such cases, the conduct of the organ is attributable only to the receiving state. If Africa Corps is classified as an organ of the Russian state, and the contractual relationship between Russia and Mali enables Africa Corps to perform functions under the exclusive authority and benefit of Mali, then there is a strong argument that only Mali can be held responsible for Africa Corps’ conduct in the country.

Ultimately, the question of attribution is highly fact-based, particularly under the “effective control” test, which necessitates a case-by-case analysis of every operation that involves internationally wrongful acts. However, it is clear that multiple states can be held liable for the conduct of the same PMSC, based on their individual relationship to the group. While the law of state responsibility opens the door to accountability for the conduct of PMSCs, the type of evidence needed to prove sufficient links between PMSCs and states can be hard to obtain because of the opaque nature of a state’s contractual and military dealings. Nevertheless, we now know where to look and what type of evidence to find to make a convincing case for state attribution of PMSC conduct.