Are Mercenaries in Ukraine?

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| Mar 21, 2022

Mercenaries in Ukraine?

Reports suggest both Russia and Ukraine are recruiting and supplementing forces in ways that potentially implicate international legal rules related to mercenaries. This post, after surveying media reports of mercenaries in Ukraine, examines the law-of-war rules governing mercenaries in armed conflict and explores their relevance to the Ukraine-Russia armed conflict. It identifies Russia and Ukraine’s law-of-war obligations and highlights some challenges the parties may have applying mercenary rules during the conduct of hostilities in Ukraine.

Reports of Mercenaries in Ukraine

Russia reportedly deployed irregular fighters to rebel-held territory in Ukraine to lay the groundwork for its February 24 invasion. Although their precise use is uncertain, officials indicated these individuals may have been intended for sabotage or (ultimately unsuccessful) “false flag” operations. Other officials believe these forces were incorporated directly into local fighting forces that took part in the Russian invasion. Russia’s use of such forces before February 24 is relevant legally because the Russian invasion continues an international armed conflict waged between the two States since 2014.

Officials believe that as many as 200 Russian irregular fighters have been killed in combat as of late February. This suggests such forces may already constitute a significant portion of Russia’s fighting force. A more recent report asserts that more than 40,000 Syrians are registered to join the Russian side in the conflict.

Russia reportedly is relying on irregular forces in part as a matter of operational necessity. According to U.S. intelligence officials, Russia faces a significant shortfall in military personnel, exacerbated by perceived operational failures. Intelligence officials believe that Russian irregular fighters will increasingly be used in direct combat to support stalled and depleted Russian military units. Others may be deployed in special missions, such as a reported operation to assassinate Ukrainian President Volodymyr Zelensky in Kyiv. Officials also believe Russia is recruiting Syrians with urban combat skills and experience to contribute to efforts to take Kyiv. Still other recruits are being offered money for six-month deployments to Ukraine to work as guards.

Russia’s use of irregular forces is not new, or even a recent development in its armed conflict with Ukraine. For example, Russia used such fighters as a key feature of its seizure of Crimean Peninsula of Ukraine in 2014 and to support the pro-Russian insurgency that occurred in the Donetsk and Luhansk regions of eastern Ukraine. A significant source of Russian irregulars—both in Ukraine and in other Russian military operations—is the Wagner Group, a privately-owned Russian paramilitary organization.

Ukraine’s force recruitment and constitution also raise questions about mercenary rules—although, as we shall see, to a lesser extent than Russia’s practices. The Ukrainian government is openly recruiting irregular fighters to join militias and volunteer forces, including the International Legion of Defense of Ukraine. According to the Ukrainian government, units of international fighters formally fall under Ukraine’s regular armed forces and report to Ukrainian commanders. Russia announced it would consider foreigners fighting for Ukraine to be mercenaries. According to Russian officials, if captured, they would not be entitled to prisoner of war status.

Additionally, there appears to be growing demand for paid security workers in Ukraine. Many of the recruitment efforts seem to be privately funded, although determining the precise source of the funding is difficult. While many of the recruitment programs purport to focus on humanitarian missions, they often involve security elements, which in other contexts have raised thorny questions about the line between security and combat operations.

The referenced reports use the term “mercenary” liberally in describing irregular fighters in Ukraine. Of course, the use of the term “mercenary” in news reports and political discourse does not necessarily mean that the law-of-war rules related to mercenaries apply. In this regard, the International Committee of the Red Cross (ICRC) 1977 assertion regarding law-of-war discourse continues to resonate: “There are few words which suffer greater misuse these days than the term mercenary.”

Mercenary Rules

Historically, the law of war had little to say about mercenaries. The term was not defined in treaty law, nor did the law of war establish “mercenary” as a distinct status with a special legal character. Before 1977, international legal regulation of mercenaries was limited mainly to a requirement—based in the law of neutrality—for States not to facilitate the formation of mercenary groups.

In 1977, the First Additional Protocol to the Geneva Conventions (AP I) significantly changed the law for mercenaries. AP I, Article 47 begins by withholding from a mercenary “the right to be a combatant or a prisoner of war.” It defines a mercenary as any person who meets six criteria, specifically any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

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.

Both Russia and Ukraine are parties to AP I. Therefore, each is bound by Article 47 in the current armed conflict. Additionally, Ukraine is a party to the 1989 International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries. The 1989 Convention creates a criminal law regime for mercenarism—it identifies and defines criminal offenses, establishes rules of jurisdiction, and obligates enforcement measures. Furthermore, Article 1 of the 1989 Convention expands the AP I, Article 47 definition of “mercenary” by removing the condition that a mercenary actually take part in hostilities. Unlike AP I, the 1989 Convention criminalizes direct participation in hostilities by any person who meets the Article 1 definition.

Russia is not party to the 1989 Convention. Thus, unlike Ukraine, Russia is not subject to the Convention’s obligations, such as the requirements to criminalize mercenary offenses (Article 5), cooperate in prevention of such offenses (Article 6), and notify the UN Secretary-General of potential violations (Article 8 and Article 10).

It is worth briefly noting two implications of the 1989 Convention with respect to the conflict in Ukraine. First, the fact that Ukraine is a party to the 1989 Convention raises questions concerning the international law of State responsibility. For example, Ukraine’s use of mercenaries in the conflict could constitute an internationally wrongful act giving rise to State responsibility. Notably, and perhaps with a view toward such issues, in 2015 Ukraine filed a communication with the Secretary-General of the UN in relation to its obligations under the 1989 Convention. The communication asserted that Ukraine could not guarantee application and implementation of the Convention in those areas of its territory that were targets of Russian acts of “armed aggression.”

Second, the fact that Russia is not party to the 1989 Convention raises questions about the interaction between Ukraine’s obligations under that the 1989 Convention and other law-of-war treaties. These questions are beyond the scope of this article. For present purposes, it suffices to say that, at least for purposes of determining whether captured Russian fighters qualify as mercenaries, the safest route for Ukraine would be to consider the AP I, Article 47(2) definition as controlling rather than the definition in the 1989 Convention.

Reports of Mercenaries in Ukraine

Unworkability of the Definition

Before addressing the allegations of mercenaries in Ukraine directly, it is worth noting some difficulties with applying the AP I, Article 47(2) definition in practice. These challenges have provoked claims of “unworkability.”

First, the requirement that a mercenary be motivated to take part in hostilities “essentially by the desire for private gain”—what Professor Yoram Dinstein calls the linchpin of the definition—presents a remarkably demanding task for complainants. It requires proof of a putative mercenary’s reason for fighting. This determination may not be made at the group level—recall that the Article 47(2) definition applies to individual mercenaries rather than mercenary group. Assessments must be individualized.

Russia and Ukraine also may not assume that foreign fighters are motivated by private gain. Foreign fighters have come to Ukraine for a multitude of reasons, many of which have little to do with personal financial gain. These reasons include, for example, patriotism, humanitarianism, national duty, hatred, and prejudice. To further complicate matters, fighters’ motivations may not have been carefully considered. Reasons may change, perhaps repeatedly or quickly. The motivation element of the Article 47(2) definition requires States not only to ascertain a fighter’s individual reasons for fighting, but also their hierarchy of motives—a mercenary must be motivated “essentially” by private gain.

In the chaos of the armed conflict in Ukraine, and given the vast number of irregular and foreign fighters, Russian and Ukrainian armed forces are unlikely to have the resources and capability to make these assessments at scale.

Even aspects of the Article 47(2) definition that may be established objectively—at least in principle—present problems of workability. For example, Russian and Ukrainian forces may struggle to determine alleged mercenaries’ compensation levels, let alone whether such compensation is “substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party.” Furthermore, individuals’ nationality, residency, and precise relation to the armed forces of the belligerent for whom they fight present resource-intensive questions of proof that Ukrainian and Russian forces may not be prepared to answer in the midst of hostilities.

Narrowness of the Definition

Setting aside the workability of the Article 47(2) definition, given its narrowness, publicly available information suggests that many of the foreign fighters noted earlier are not mercenaries.

A member of the armed forces of a belligerent is not a mercenary. The Ukrainian government has formally incorporated the International Legion of Defense of Ukraine into its armed forces. Thus, the Legion’s reported 20,000 foreign members—including 3,000 Americans—are not mercenaries under Article 47(2).

Even those foreign fighters who opted to join informal fighting brigades or militias are unlikely to be mercenaries under Article 47(2). It is unclear whether the Ukrainian government funds such groups. But if it does, the amount is unlikely to reach the “substantially in excess” requirement of Article 47(2). Thus, Russian claims that international fighters fighting for Ukraine were mercenaries are incorrect.

Reports of Russian mercenaries present a closer question. As noted, Russia has an established and apparently systematic practice of relying on non-State groups in recent military operations in conflicts around the world. Irregular fighters in Ukraine, including members of the Wagner Group, may meet several elements of the Article 47(2) definition, including the requirements of motivation and non-Russian nationality, residency, and armed forces status. Yet, it is unclear whether they meet the excess compensation requirement.

Recent reports suggest that Russia is offering foreign fighters salaries from $200 to $300 U.S. dollars for terms of six months, plus other unspecified “privileges.” This seems unlikely to constitute “compensation substantially in excess” of that paid to Russian regular troops. Given Russia’s systemized use of the Wagner Group, its fighters seem most likely to meet the compensation requirement. However, this is far from clear—little is publicly known about members’ compensation. Indeed, drawing financial connections between the Russian government and the Wagner Group is difficult, likely by design.

Furthermore, it is unclear whether members of private military and security companies, including the Wagner Group, meet the Article 47(2) requirement to be “specially recruited . . . to fight in an armed conflict.” The well-documented trend of outsourcing some aspects of military operations to private contractors has led to a debate about the legal status of private contracting companies, including whether and when members of such groups qualify as mercenaries. The literature on the issue is extensive. It suffices to note that it remains unclear whether members of a private security company—such as the Wagner Group—established before the initiation of armed conflict may qualify as mercenaries under Article 47(2). On one view, the prior formation of such groups or the use of group members in multiple conflicts precludes them from qualifying as “specially recruited” for an armed conflict.

Finally, to qualify as a mercenary, a fighter must be recruited “to fight” in an armed conflict and must, “in fact, take a direct part in the hostilities.” These conditions disqualify from mercenary status foreigners in Ukraine serving as equipment technicians or military advisors. A closer question is presented by individuals who serve in roles, for example, related to weapons transportation and intelligence gathering. The status of individuals would depend on the facts of each case.

Consequences for Mercenaries

The prevalence of mercenaries—in the law-of-war sense—may be less than what is suggested in media accounts and in political discourse. But some fighters may qualify, particularly the foreign fighters Russia is recruiting from Syria and other areas of conflict. For those individuals, certain legal consequences follow.

First, AP I, Article 47 does not criminalize or prohibit individuals from becoming mercenaries or taking part in hostilities, nor does it create obligations for belligerents to exclude mercenaries from their fighting forces. Rather, it precludes mercenaries from holding certain law-of-war statuses—namely combatant and prisoner of war—and withholds the legal consequences of those statuses—such as the combatant’s privilege and the protections afforded by the legal regime governing the treatment of prisoners of war.

If a mercenary is not a combatant, what is their legal status? Article 51(1) of AP I defines “civilian” as “any person” who does not fall within a category of persons considered to be combatants. That is, any person who is not a combatant is a civilian. Because Article 47(1) withholds combatant status from a mercenary, Article 51(1) suggests that Ukraine and Russia must accord civilian status to mercenaries. The ICRC’s 1987 Commentary on Article 47 supports this conclusion.

Certain legal consequences follow from the civilian status of mercenaries, perhaps most significantly under law-of-war targeting rules. It is well understood that a civilian may not be the object of attack based on their civilian status. Rather, a civilian is protected from attack “unless and for such time as they take direct part in hostilities.”

Thus, AP I rules suggest that Russia and Ukraine may only target mercenaries based on their conduct and never based on their status. Notwithstanding its clear implication by the treaty text, Ukraine and Russia may well reject this conclusion. Russia especially so, given recent official statements that Russia would show “no mercy for mercenaries wherever they are found on the territory of Ukraine.” Even if States accepted this interpretation, further questions arise, such as how to reconcile mercenaries’ civilian status with the Article 47(2) condition that mercenaries take a direct part in hostilities. Other open questions include whether a mercenary or group of mercenaries could form part of an organized armed group, and whether members of such a group could be targeted based on their status.

Other consequences follow in the event a mercenary falls into the power of the opposing belligerent. Under Article 47(1), such individuals do not have the right to be a prisoner of war. Yet, as noted earlier, the difficulties of applying the Article 47(2) definition coupled with the complexity of the armed conflict suggest that the mercenary status of a captured individual often may not be immediately apparent. Under Article 5 of the Third Geneva Convention, such individuals would be entitled to prisoner of war protection pending the determination of their legal status by a competent tribunal. (AP I, Article 45 goes further, according prisoner-of-war status—not merely protection—in cases of doubt.)

These are only a sampling of the legal issues Ukraine and Russia face regarding mercenaries on the battlefield. Not all can be addressed here. Yet, this sampling further cements an appreciation of the practical difficulties involved in implementing Article 47.

Conclusion

Given the highly technical and narrowly drawn definition of Article 47(2), it is unlikely there are many mercenaries—in the legal sense—in Ukraine. If mercenaries are in fact fighting there, the discussion above establishes that Russia and Ukraine have their work cut out with respect to implementing Article 47.

Stepping back, I note that others have argued in separate contexts that AP I’s general turn towards technicality and legalism may have unintentional and undesirable effects on the law of war’s relevance and impact on the contemporary battlefield. Perhaps Article 47 is an example of this phenomenon—its technicality may risk unworkability; its narrowness, irrelevance. States that are party to AP I may wish to consider this possibility. If concerns about mercenaries are valid, then another approach may be justified.

***

Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.

 

 

Photo credit: Marine Corps Lance Cpl. Gabriel Antwiler

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