Recalling an Outlier for Gauging Russian Responsibility in its Relationship with the Wagner Group

[Dr Richard Mackenzie-Gray Scott is Postdoctoral Fellow at the Bonavero Institute of Human Rights and St Antony’s College, University of Oxford. He is the author of State Responsibility for Non-State Actors: Past, Present and Prospects for the Future (2022).]

Whatever the motivations for doing so, such as providing authority for further sanctions, there may come a point where the relationship between Russia and the Wagner Group will be further scrutinised in order to determine whether the state is responsible for any wrongful conduct of this non-state actor. Whether during reported operations in Armenia, Azerbaijan, Belarus, Burkina Faso, Central African Republic, Cuba, Madagascar, Mali, Mozambique, Libya, Serbia, Sudan, Syria, Turkey, Ukraine, or Venezuela, should evidence show that Wagner has engaged in wrongful conduct, for example, torture or arbitrary deprivation of life, Russian links with the group require review in order to determine whether this state could bear any subsequent responsibility.

There are a number of bases upon which any such involvement can be assessed, including under international law. Recent commentary mentions the oft-cited attribution tests under articles 4, 5 and 8 of the International Law Commission (ILC) Articles on State Responsibility. Yet it is important that outliers are not discounted. Another distinctive effort of the ILC in its work on attribution almost never gets any attention despite its relevance. The focus here therefore falls on this other test that apparently eludes contemplation by many legal eagles. It concerns attributability under Article 11 of the ILC Articles, specifically that of states acknowledging and adopting non-state actor conduct as their own. While there are numerous other bases for assessing Russian responsibility in its relationship with the Wagner Group, including those not based on attribution, the test examined below can also be applied to facts uncovered regarding Russia-Wagner relations and any ensuing wrongfulness.

Perhaps Article 11 gets overlooked because it did not digest for as long in the drafting process compared to its siblings – being introduced roughly three years before the ILC Articles were considered complete. Or maybe the unseen character of the provision arises from readers believing its application only extends to explicit state acknowledgement and adoption of non-state actor conduct – understandable when glancing at its text:

Conduct acknowledged and adopted by a State as its own

         Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

What is intriguing about this attribution test is that satisfying its threshold rests on whether and how a state responds to wrongful conduct of a non-state actor. This is unlike other tests within and outwith the ILC Articles, in that their respective attribution thresholds can still be satisfied regardless of the subsequent responses from states towards conduct of non-state actors. There is an element of state choice that is particular to Article 11.

While some states may be ‘loath to adopt conduct which is not their own’ (p. 182), attributability under Article 11 is not limited to explicit statements from a state of its willingness to acknowledge and adopt non-state actor conduct as its own. This understanding was evident during drafting of the provision:

A State might subsequently adopt or ratify conduct not otherwise attributable to it; if so, there is no reason why it should not be treated as responsible for the conduct. Adoption or ratification might be expressed or might be inferred from the conduct of the State in question. This additional possibility needs to be considered.

Although practice on this matter is minimal, the commentary to Article 11 also alludes to the possibility of implicit state acknowledgement and adoption of non-state actor conduct. When a state ‘endorses and continues that situation’ where wrongful conduct is present, an ‘inference may readily be drawn that it has assumed responsibility for it’ (p. 52). Past practice interpreting Article 11 shows that in cases concerning implicit acknowledgement and adoption of conduct, the instance of a state benefiting from such conduct is not sufficient to satisfy the attribution threshold of this provision. Yet questions remain whether attribution could be triggered as a result of combined endorsement by a state of wrongful conduct and its simultaneous facilitation of maintaining a situation where that conduct is occurring.

Taken alone, state approval or endorsement of non-state actor conduct does not satisfy the attribution threshold of Article 11. Marko Milanovic makes an observation worth remembering, which is that a state ‘can approve of many things without necessarily assuming responsibility for doing those things’. It is important to differentiate between state expressions communicating support towards the conduct of a non-state actor and willingness to assume legal authorship of it. However, if a state conducts itself in a manner that contributes to facilitating the continuance of wrongful conduct committed by a non-state actor, then the dynamic between the two actors changes, especially if opinion from the state indicates concurrence with that conduct.

A potential method for assessing whether implicit state acknowledgement and adoption of non-state actor conduct has occurred is to determine whether the state in question has ‘at the very least not attempted to stop conduct of a non-state actor that it is simultaneously supporting in some form’ (p. 129). Attributability could thus turn on non-state actor conduct that is ongoing and being made easier because of a state’s actions or omissions, so long as the state also issues concurrent statements manifesting its backing of that conduct (see paras. 69-75 and 87-91 for further precedent). Coupling verification of both facilitation and endorsement would be necessary. For example, a state expressing support for conduct that occurred with its provision of weapons or financial and logistical assistance. There are two unsettled points here. The first is what state conduct would constitute facilitating the continuance of non-state actor wrongdoing in a given context. The second is what forms of state communications would be satisfactory in this regard of possible affect on attribution. Would an internal memorandum of a government department suffice, a tactical directive from a military commander, a public announcement to the press, or a post from an official government account on social media? Over time, practice has the opportunity to provide clarity on such matters. But in order for that to happen, related arguments first need to be advanced.

Although positive law has yet to elaborate on what implicit state acknowledgement and adoption of non-state actor conduct is required in order to result in attribution under Article 11, development of further precedent need not be constrained. Depending on what facts are applicable when judging allegations that the Wagner Group was acting in fact on behalf of Russia in a particular case, application of the implicit state acknowledgement and adoption test may be worth considering. Legal or political advocacy undertaken for the purpose of attempting to establish Russian responsibility for wrongdoings of the Wagner Group may also mean preference for applying this test becomes more acute should other tests be rendered futile by available facts.  

[With many thanks to Priya Urs and Dapo Akande for their helpful feedback on a previous draft.]