14 Nov Status of Private Military Companies Personnel under IHL: Implications for Prosecuting Members of the Wagner Group in Ukraine
[Esti Tambay is a Strategic Litigation Officer at the Open Society Justice initiative, working primarily on accountability for international crimes.
Anna Khalfaoui is an Associate Lawyer at Open Society Justice Initiative, working primarily on accountability for international crimes and climate justice.]
The Wagner Group has been associated with international crimes and serious human rights violations in Ukraine since the launch of Russia’s full-scale military invasion in February 2022. It has also been associated with international crimes and human rights violations in several other countries, including Syria, Mali, Sudan, Libya, and the Central African Republic. The connections between the Wagner Group and the Russian Federation have also been widely discussed, including in the context of the June 2023 mutiny and the events that followed. Personnel of the Wagner Group who commit crimes in Ukraine and in other countries must be held accountable – but how?
The Open Society Justice Initiative and our colleagues at the International Renaissance Foundation have published an analysis of the status of Private Military Companies (PMCs) under international humanitarian law (IHL), its application to personnel of the Wagner Group, and the implications of that status for their prosecution for crimes committed in Ukraine.
Some caveats should be provided at the onset about our analysis.
First, our focus was on considering whether Wagner Group personnel who are captured in Ukraine can be prosecuted for crimes under domestic law (such as participating in hostilities or being a member of a criminal organization) or whether these personnel can be prosecuted only for international crimes.
Second, our analysis focuses on the rules applicable in the international armed conflict (IAC) between Ukraine and Russia. It does not consider the question of whether the Wagner Group is or was engaged in a non-international armed conflict (NIAC) with Ukraine. It does not therefore consider the protections to which Wagner Group personnel may be entitled or not entitled to as members of an armed group in a NIAC. Incidentally, to the extent that Russia exercises overall control over the Wagner Group (as will be considered below), the ICRC’s position is that the law of IAC alone applies (see e.g., Ferraro, p. 1249).
Status of Personnel of Private Military Companies under IHL
The primary status of any individual in an IAC under IHL, as either a combatant or a civilian, has important implications. It determines the protection this individual should be afforded (can they be directly targeted?). It also dictates the legal consequences which flow from their conduct (can they be prosecuted merely for having participated in hostilities or only for international crimes?).
Our analysis discusses the circumstances in which personnel of PMCs will be deemed combatants under IHL. Members of a State’s armed forces are combatants, except for medical and religious personnel (Art. 43(2) Additional Protocol I). Art. 43(1) Additional Protocol I defines a State’s armed forces as encompassing “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates” (emphasis added). This definition suggests that two criteria must be met for a PMC to form part of a State’s armed forces: it must be (a) “organized” and (b) “under a command responsible” to a State party to the conflict.
The “organized” criterion would likely include factors such as the presence of a command structure, ability to conduct military operations in an organized manner, level of logistics and discipline, and ability to speak with one voice (cf. factors of the ICTY’s Trial Chamber II in Boškoski, paras. 199–203, when assessing the level of organization of a non-State armed group in determining the existence of a non-international armed conflict).
The “responsible command” criterion is more ambiguous and has not been the focus of significant analysis. We argue that it would be inappropriate to apply the test of “effective control,” derived from State responsibility, to define this requirement. Instead, applying a less stringent level of control would be more appropriate. One possibility is to apply the test of “overall control,” developed by international criminal tribunals in the context of classifying an armed conflict as “international.” The ICTY’s Appeals Chamber in Tadić stated at para. 137 that there is overall control when a State party to the conflict “has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”.
Contrary to the reasoning of the Hague District Court in the MH17 case, a State party to the conflict need not publicly recognize a group as a member of its armed forces nor do individual group members need to claim they are part of its armed forces (see section 220.127.116.11 of the translated decision). Such declarations are irrelevant. The definition of the armed forces in Art. 43(1) Additional Protocol I is factual: does the PMC meet the two criteria detailed above of being “organized” and under a “command responsible” to that State party?
Personnel of PMCs who are combatants will be entitled to prisoner-of-war status upon capture, so long as they distinguished themselves from the civilian population when they engaged in or in a military operation preparatory to an attack (Art. 44(3) Additional Protocol I). They can only be prosecuted for international crimes and not merely for having taken up arms and engaged in hostilities.
If the PMC does not form part of the State’s armed forces, its personnel are not combatants and, therefore, are civilians. As civilians, personnel of PMCs can only be targeted if they directly participate in hostilities (Art. 51(3) Additional Protocol I). If they are captured, they can be prosecuted merely for having participated in hostilities or for international crimes.
Our analysis also considers whether PMC personnel could be deemed mercenaries, given that IHL rules out any individual who is a national of any State party to a conflict (Art. 47(2) Additional Protocol I) – despite the Wagner Group being often described as mercenaries, they would not qualify since they are Russian nationals. The analysis also discusses civilians accompanying the armed forces (Art. 4(a)(4) Third Geneva Convention), who must carry identity cards identifying them as such – we have not seen much evidence that this would apply to the Wagner Group.
Significantly, IHL provides that, when the status of a person who has taken part in hostilities is unclear, they should be presumed to be a prisoner of war until their status is determined (Art. 45(1) Additional Protocol I). Thus, if there are doubts as to the status of a detained PMC personnel, they should be treated as a prisoner of war until a tribunal has determined their status.
Status of Wagner Group Personnel in Ukraine
Based on open-source information currently available, it may be difficult to make a definitive statement at this juncture that the Wagner Group forms part of Russia’s armed forces. Some factors certainly suggest reaching that conclusion and, as such, captured Wagner Group fighters should be treated as prisoners of war, provided that they distinguished themselves from the civilian population, until and unless a competent tribunal determines otherwise based on the specific circumstances of that individual.
It is quite apparent that the Wagner Group is very “organized,” given its ability to conduct large-scale and complex military operations, including the strategic seizure of several cities in Ukraine, which has been expressly recognized by the Russian Ministry of Defense. The Wagner Group has sophisticated logistical coordination, including large recruitment campaigns (focused on convicts), trained separatist militias and Russian civilians, a supply of sophisticated and specialized weapons and equipment, and distinctive uniforms and mottos. There also appears to be very strict military discipline among recruits. And the Wagner Group speaks with one voice in negotiating agreements, whether with Russian or other foreign State representatives.
While less is publicly known about the Wagner Group’s specific command structure, there are indications that it is well-organized and coordinated, with specific units reporting through a unified command, a leadership made up of a council of commanders, and certain rules according to which the Group is intended to operate.
Based on publicly available information, it is more challenging to conclusively determine that the Wagner Group is under a “command responsible” to Russia. But there is much evidence that Russia has organized, coordinated, and planned the military actions of the Wagner Group in Ukraine. As noted, the Russian Ministry of Defense has openly acknowledged the Wagner Group’s role in capturing several Ukrainian cities. The Wagner Group and military agency of Russian’s Ministry of Defense (commonly known as the GRU) both operated from adjacent areas of the Molkino military bases. There were consistent and repeated telephonic interactions between Prigozhin and Russian leaders. And there seemed to be integration of the Wagner Group in the overall chain of command of the GRU. As such, some experts argue that the Wagner Group is a “semi-State security” force and that the “overall control” test would be satisfied.
Moreover, events since the June 2023 suggest a concerted effort to unwind the preexisting relationship between the Wagner Group and Russia, which might only confirm its prior existence. In refusing to sign formal contracts with Russia, Prigozhin claimed that the Wagner Group was already “organically” integrated into the overall Russian military structure. A leaked document purporting to be the Wagner group’s founding document outlined the Group’s rules and confirmed that its founding principle was to fight Russia’s war in Ukraine. Significantly, President Putin expressly admitted that Russia had financed the Wagner Group, which suggests a high degree of dependence on Russia. And a council of commanders met with Putin following Prigozhin’s reported death to discuss its future.
Implications for Individual Prosecutions and State Responsibility
The above discussion has important implications for the potential prosecution of Wagner Group personnel for international crimes. If an individual Wagner Group detainee is a combatant with prisoner-of-war status, they cannot be prosecuted for domestic crimes. Whether they are civilians or combatants, Wagner Group personnel who have committed international crimes in Ukraine can and should be prosecuted.
A Wagner Group suspect could be prosecuted by the International Criminal Court (ICC), a special tribunal with appropriate jurisdiction, or by a third country under the principle of universal jurisdiction. States have an obligation to prosecute or extradite such individuals found on their territory (Art. 139 Third Geneva Convention, enshrined in separate treaties as well). This question has already come to the fore in Norway, which has been grappling with these questions. There are also important questions as to whether and how the doctrine of command responsibility could apply to hold a superior of a PMC accountable for crimes of subordinate employees that they know or should have known were being committed but did not prevent, especially given the ambiguity of plausible deniability.
There is also a question under international law as to whether Russia could bear State responsibility for the conduct of Wagner Group personnel in Ukraine. This issue turns on the complex analysis of attribution and whether Russia exercised “effective control” over the Wagner Group. Some of the facts described above in the context of determining whether the Wagner Group is under the “responsible command” of Russia would be relevant here, although the “effective control” test that would be applied for this analysis is more stringent than the “overall control” test we argue should apply in the IHL analysis described above.
Beyond Ukraine, Beyond Wagner
While our analysis focuses on the status of the Wagner Group in Ukraine between February 2022 and June 2023, that analysis could (and should) be applied to the Wagner Group in other countries where its members have been alleged to have committed crimes. There could be a different conclusion about the Wagner Group’s status and possible responsibility for acts committed elsewhere based on specific circumstances. And significantly, as the Wagner Group is now replaced by other PMCs in Ukraine (such as Redut), a similar analysis should be undertaken as it relates to those groups.
Because there is still much uncertainty around how to treat PMCs under IHL and implications for their members’ individual criminal responsibility, it is important for all States with potential jurisdiction over the Wagner Group’s crimes in Ukraine, as well as the ICC or any special tribunal still to be established with appropriate jurisdiction, to conduct further examination of the legal and factual issues described above and in our analysis in an effort to come to a more definitive and consistent conclusion as to the status of the Wagner Group in Ukraine (and beyond). On that basis, those States and competent tribunals should prosecute those most responsible Wagner Group detainees and pursue any appropriate legal options to determine Russia’s State responsibility.