Contracts Between the Wagner Group and Russia’s Defense Ministry: International Law Implications
After months of infighting between Russian defense officials and the Wagner Group, the Deputy Defense Minister, Nikolai Pankov, announced on June 10, 2023, that “volunteer formations” would be required to sign contracts with the Russian Ministry of Defense before the end of the month. Although the statement did not name the Wagner Group specifically, Russian commentators suggested that the aim of the contracts was to bring the private military company (PMC) and its leader, Yevgeny Prigozhin, under greater State control.
Prigozhin responded with a furious statement, signaling his refusal to sign any contracts with the Defense Ministry. Prighozin claimed that the Wagner Group was already “organically” integrated into the overall Russian system, “with experienced unit commanders from his forces coordinating with Russian generals in a highly effective structure.” He contended that this efficient command structure would be damaged if Wagner’s forces were required to report to Sergei Shoigu, the Defense Minister, asserting that “Shoigu cannot properly manage military formations.”
It remains to be seen who will triumph in this latest battle between Prighozin and defense officials. If, however, the Defense Ministry succeeds in its attempt to regularize the Wagner Group’s activities, this will have a number of consequences from an international law perspective. First, it means that the Wagner Group’s conduct in violation of international law will be attributable to Russia under the law of State responsibility. Second, it removes the ambiguity regarding Wagner fighters’ status under the law of armed conflict (LOAC), meaning that they will, in future, be entitled to combatant and prisoner of war status.
The Law of State Responsibility
The Wagner Group’s brutal conduct in Ukraine and around the globe raises questions regarding Russia’s responsibility for the PMC’s actions in potential violation of LOAC. I have considered this issue in previous posts, concluding that the attribution of the Wagner Group’s conduct to Russia presents a challenge. This is principally due to the PMC’s status under Russian domestic law, as well as ambiguities regarding the factual relationship between the Wagner Group and the Russian State.
If the Wagner Group enters a contractual relationship with Russia’s Defense Ministry, this would change the group’s status under Russian domestic law. Currently, although the PMC’s activities are clearly approved at the highest levels of Russia’s government, this reality is not reflected in Russian law. Russia’s constitution reserves all defense and security matters to the State (Article 71) and prohibits the setting up of “armed units” (Article 13(5)). Meanwhile, the State’s criminal code penalizes participation in overseas conflicts for material reward (Article 359). Parliamentary representatives in the Duma have attempted in recent years to update Russia’s national laws to permit PMC activities but without success.
As matters stand, therefore, Russian law does not recognize the Wagner Group or its operations. They are effectively illegal under Russian law. If, in future, the group concludes contracts with the Defense Ministry, this would regularize the PMC’s position under domestic law. It would also have international law implications. From the date any such contract takes effect, the law of State responsibility would attribute some or all of the PMC’s conduct to Russia. The basis of attribution, however, would depend upon the type of contract concerned.
A first possibility is that each individual Wagner fighter would be required to enter a contract with Russia’s Ministry of Defense. According to a report by the Institute for the Study of War, Sergei Shoigu announced that “Russian volunteer personnel must sign contracts directly with the Russian MoD by July 1.” The same report indicates that the Akhmat group of Chechen special forces complied with the Defense Ministry’s decree and that the new contracts “will grant Akhmat forces the same legal status, rights, and benefits” as official defense personnel. If that is correct, and assuming the same status would be afforded to members of the Wagner Group, it suggests that upon signing the contracts, Wagner fighters would be integrated into Russia’s armed forces.
If this were to happen, the Wagner Group’s fighters would become organs of the Russian State. This means that all the fighters’ conduct performed in their official capacity would be attributable to Russia (Article 4 of the International Law Commission’s Articles on State Responsibility (ASR)), even if individual fighters act in disobedience to orders (Article 7 ASR). Moreover, this would be true whether Wagner fighters operate in Ukraine or in any other country around the globe. Following this change of status, therefore, if Wagner fighters violate LOAC, their conduct in breach of international law would be attributable to Russia whether or not the fighters concerned were following superior orders at the relevant time, and wherever in the world they might operate.
Delegation of Public Functions
An alternative possibility is that rather than requiring individual fighters to sign contracts with the government, the Defense Ministry could instead formalize its relationship with the Wagner Group as a whole. For example, the Ministry might require the PMC to enter into a contract whereby it authorizes Wagner to conduct military operations on its behalf and also stipulates the conditions under which the PMC must operate. In this situation, the PMC would remain a private entity, yet the actions of its members might still be attributable to Russia.
The conduct of private entities that do not qualify as State organs is attributable to a State if, at the relevant time, the entity concerned is authorized to exercise public functions on the State’s behalf (Article 5 ASR). To determine whether this rule of attribution applies, it is necessary to consider, first, whether the entity’s conduct is public in character and second, whether the State delegated those functions to the entity in accordance with its domestic laws.
In the case of the Wagner Group, the answer to the first question is straightforward. The combat-related activities the PMC performs for Russia are clearly governmental in nature. Engaging in combat operations is a sovereign function that States typically reserve to themselves. The proposed new contractual relationship implicates, instead, the second criterion. Currently, given PMCs’ illegality within Russia, it seems that the Wagner Group is not empowered by domestic law to act on the State’s behalf. But that position could change if Wagner’s operations are, in future, formally authorized via a contractual arrangement with the Ministry of Defense.
The International Law Commission, which drafted the rules of attribution, clearly intended that this rule should apply when a State delegates public functions to a private entity via contract. This is apparent from the provision’s commentary, which illustrates the rule’s application by referring to private security firms “contracted to act as prison guards” (Article 5 ASR, commentary para. 2). However, a contract is not per se the law of the State. It is, instead, an instrument authorized by law that has effect within the national legal order. Therefore, in the case of the Wagner Group, it seems that this element of the rule of attribution would only be satisfied if the contractual relationship accords with Russian law. In other words, there is a need for a more general legal authority within Russia’s domestic law that empowers the Ministry of Defense to delegate combat functions to a private entity via contract.
It remains unclear whether this wider domestic legal authority exists. This seems unlikely given the other provisions of Russian law that prohibit PMC activity. Nevertheless, in the event the Defense Ministry authorized the Wagner Group to act on its behalf in a manner that did accord with Russian domestic law, the rule of attribution would apply. This would mean that all the Wagner Group’s conduct performed under the terms of the contract would be attributable to Russia. Again, this would include any acts that were contrary to orders (Article 7 ASR). However, any of the group’s conduct performed in a different capacity, for example, via an arrangement with another State, would fall outside the scope of the authorization and would not, therefore, be attributable to Russia.
Attribution Based on State Control
If the Wagner Group’s status changes and its fighters become State organs, or the PMC is properly empowered to perform public functions on Russia’s behalf, the conduct of the group’s members would be attributable to Russia and there would be no need to consider attribution based on State control. Nonetheless, it is worthy of note that the reports regarding the proposed new contractual arrangement refer to the Russian government’s desire to centralize control over operations involving volunteer formations. This intent is also evident in Prigozhin’s angry response to the proposal, in which he claimed that the Wagner Group’s effectiveness would be damaged by having to report to the Ministry of Defense.
It appears, therefore, that the new relationship between the Wagner Group and the Defense Ministry would involve greater military command and control over the PMC’s operations. This would have implications for Russia’s State responsibility, if the Wagner Group’s conduct could not be attributed to Russia on another basis. Thus, private conduct is attributable to a State if it is performed under that State’s instructions, direction, or control (Article 8 ASR). While the control threshold for the purposes of attribution remains high, the likelihood that this threshold would be satisfied might increase if the Wagner Group is brought more firmly under the control of Russia’s armed forces.
The Wagner Group’s Status under LOAC
The Russian military’s increased levels of control over the Wagner Group’s operations would also have implications for Wagner fighters’ status under LOAC. In a previous post, Winston Williams and I considered whether members of the Wagner Group would be entitled to combatant status if captured by Ukrainian forces. This status would grant the fighters immunity from prosecution relating to their combat operations, meaning that they enjoy international law protection from domestic prosecutions related to their participation in hostilities. Without this status, Ukraine could prosecute members of the Wagner Group for criminal offenses related to their mere involvement in the conflict, even if there is no evidence that they committed war crimes.
Wagner fighters’ status as combatants depends on whether they fall within the definition of “armed forces” in Article 43 of the first Additional Protocol to the Geneva Conventions (AP I). This, in turn, depends on whether the Wagner Group’s fighters are “under a command responsible” to Russia. When we considered this issue previously, ambiguity in the command relationship between Wagner’s leaders and the Russian Ministry of Defense meant that we could not reach a firm conclusion regarding the status of Wagner fighters under LOAC. However, if in future Wagner’s forces are subordinated to Russian military command, this assessment may become more straightforward. If the Wagner Group operates under the command and control of the Russian armed forces, it is far more likely that the group’s members will satisfy the command element of Article 43.
Article 43 also includes an additional requirement: “Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” Given the frequent LOAC violations committed by the Wagner Group and Russia’s conventional armed forces, as well as the seeming impunity with which they act, it is highly questionable whether any such disciplinary system is in place.
This requirement, however, can be read in two ways. First, it could be one of the conditions that a group must satisfy to qualify as “armed forces of a Party to a conflict.” If that is the correct interpretation, the absence of a compliant disciplinary system would deprive members of the unit of combatant and prisoner of war status. Alternatively, rather than a qualifying criterion, this could be viewed as an obligation that is binding on the State. On this interpretation, a State’s failure to enforce LOAC compliance would be internationally wrongful, but would have no impact on the determination of combatant or prisoner of war status.
When considered in context, the second interpretation is the better one (pg. 272-273). Article 44 AP I and Article 85 of the third Geneva Convention both affirm that prisoners of war retain their status notwithstanding any prior offenses they may have committed. A detaining power cannot deny prisoner of war status to fighters based on an allegation that the force to which they belong does not properly enforce LOAC compliance. Therefore, if the Wagner Group operates in future under the command of the Russian armed forces, the group’s members will be entitled to combatant and prisoner of war status, notwithstanding any failure by the chain of command to enforce compliance with international law.
It remains to be seen whether the Wagner Group will enter into any form of contractual relationship with Russia’s Ministry of Defense. While President Putin reportedly supports the Ministry’s efforts to centralize control over Russia’s operations in Ukraine, Wagner’s leader, Yevgeny Prigozhin, remains vocal in his opposition to the proposal. Wagner’s future status is therefore likely to depend upon the outcome of the ongoing power struggles within the Kremlin.
If, however, the Defense Ministry succeeds in its quest to regularize the position of forces like the Wagner Group, this change would be good news from an accountability perspective. It would mean that whenever Wagner fighters violate LOAC during their military operations, there would be a higher likelihood than at present that the relevant breach of international law would be attributable to Russia. Assuming one of the rules of attribution applies, this would mean that the fighters’ harmful conduct constitutes an internationally wrongful act, leading to Russia’s State responsibility. Although Russia has shown no willingness to date to accept responsibility for the numerous LOAC violations involving either the Wagner Group or its conventional armed forces, this change would at least recognize the official nature of the PMC’s conduct and potentially make it easier for Ukraine to claim reparations for the harm the Wagner Group has caused.
Such a change would also add clarity to Wagner fighters’ status under LOAC. If Ukrainian forces capture members of the Wagner Group, they will need to determine not only whether they are entitled to prisoner of war status but also whether they have combatant immunity, meaning that they cannot be prosecuted for their participation in the hostilities. At the moment, due to the considerable ambiguity regarding the command relationship between Wagner and Russia’s armed forces, such determinations may be difficult. In future, however, if Russia’s Defense Ministry succeeds in implementing this change, Wagner fighters’ status should be clear.
Jenny Maddocks is an Assistant Professor in the Department of Law at the United States Military Academy, West Point.
Photo credit: Ukraine State Border Guard Service