Putin Admits to Funding the Wagner Group: Implications for Russia’s State Responsibility

by

| Jun 30, 2023

Putin

On June 27, 2023, Russian President Vladimir Putin made a remarkable announcement. After years of denying any links between the Wagner Group and the Russian State, Putin stated, “I want to point out and I want everyone to know about it: The maintenance of the entire Wagner Group was fully provided for by the State.” President Putin added that from May 2022 to May 2023, the Russian State paid more than 86 billion rubles to the Wagner Group. That amounts to almost one billion U.S. dollars.

The significance of Putin’s revelation can only be fully appreciated if considered in light of the Kremlin’s previous stance toward the private military company (PMC). When members of the Wagner Group attacked U.S. forces in Syria in February 2018, Moscow denied all knowledge of their activities. Later the same year, Kremlin spokesman Dmitry Peskov claimed that no PMCs existed in Russia. And in March 2021, Russia responded to a UN Human Rights Council report alleging Wagner’s involvement in the commission of war crimes in the Central African Republic by denying that Russian citizens acting “under private contracts” had any association with “Russian State bodies.”

It seems that the Kremlin’s change of narrative is part of its response to the Wagner Group’s brief rebellion on 23 to 24 June. Moscow has launched an information campaign aimed at re-establishing Putin’s authority and discrediting Yevgeny Prigozhin. Thus, President Putin now asserts that Prigozhin lied about the Wagner Group’s independence from the Kremlin and the lack of State compensation for Wagner’s personnel. To support the claim, Putin admitted for the first time since Wagner’s founding that the Kremlin “fully funds” and “fully supplies” the PMC. In addition, Putin acknowledged that the Kremlin has made various payments to Wagner personnel and their families from Russia’s federal budget.

It remains to be seen whether this admission will assist the Kremlin in its attempts to portray Prigozhin as a liar. But whether or not President Putin succeeds in destroying Prigozhin’s reputation, his announcement has legal implications. In particular, it impacts Russia’s State responsibility for the many law of armed conflict (LOAC) violations committed by Wagner’s personnel across the globe. This post considers the grounds on which the Wagner Group’s conduct in breach of LOAC could be attributed to Russia and how the analysis may now change in light of Putin’s announcement.

Is the Wagner Group a State Organ of Russia?

At the date of writing, it remains uncertain what will become of the Wagner group following its short-lived mutiny. Reports indicate that that the PMC will be disbanded and that its fighters will be given a choice whether to join the Russian army or to flee to Belarus. As I have written previously, those fighters who choose to enter into contracts with Russia’s Defense Ministry will become State organs, meaning that from that date on, all their conduct performed in their public capacity will be attributable to Russia.

The question remains, however, whether the Wagner Group qualifies as a Russian State organ. Despite the significant support that the Kremlin now admits providing to the PMC, Russia’s domestic law does not designate the Wagner Group as an organ of State. Nevertheless, a private entity can qualify as a State organ based on its factual relationship with the State rather than its status under domestic law (Article 4 of the International Law Commission’s Articles on State Responsibility (ASR)). We now know more about that factual relationship following Putin’s announcement.

The International Court of Justice (ICJ) considered this de facto State organ status in the Bosnian Genocide case (para. 391-394). In its judgment, the ICJ said that entities can be equated with State organs “provided they act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument.” Putin’s recent announcement is significant because it acknowledges for the first time the Wagner Group’s high degree of dependence on Russia. Putin stated that the Kremlin “fully funds” and “fully supplies” the PMC, thereby indicating that the Wagner Group is completely dependent on Russia for the conduct of its military operations.

A degree of caution is required, however, before concluding that the Wagner Group qualifies as a de facto State organ of Russia, meaning that all its members’ conduct when acting in their official capacity is attributable to the State.

First, Putin referred in his statement to the PMC’s funding only since May 2022. The Wagner Group first emerged in 2014. Although it is likely that the PMC has had a high degree of dependence on Russia for the entirety of its existence, the group’s status would need to be considered at the time the specific international law violations at issue were committed. The PMC’s conduct could only be attributed to Russia on this basis, leading to State responsibility, if the Wagner Group qualified as a de facto State organ at the relevant time.

Second, despite the narrative the Kremlin is now promoting, reports indicate that the Wagner Group is not “fully funded” by Russia. Instead, the PMC draws its funding from a range of sources, including the business operations of its leader, Yevgeny Prigozhin. The Wagner Group also receives funding from other States, particularly regarding its operations in Africa where, for example, Mali’s government reportedly pays the PMC $10 million a month. Thus, it is not entirely accurate to characterize the Wagner Group as being “completely dependent” on Russia.

Third, the test the ICJ formulated to establish de facto State organ status is stringent. The ICJ referred not only to a requirement for “complete dependence” but also “strict control by the State” over the entity’s activities. In concluding that the Bosnian Serbs were not de facto State organs of Serbia, the ICJ noted the “exceptional” nature of this status. Thus, the Bosnian Serbs could not be “regarded as mere instruments through which the State was acting, and as lacking any real autonomy.” Instead, Bosnian Serb leaders “had some qualified, but real, margin of independence.” This meant that they were not totally dependent on Serbia, and their conduct was not attributable to the State on this basis.

Even stronger observations can be made regarding the Wagner Group’s autonomy and independence. Notwithstanding the very considerable support that Putin now admits to providing the PMC, it is abundantly clear from the group’s recent behavior that it does not act under the Kremlin’s control. Even when it does act for the Russian State, such as in the battle for Bakhmut, the Wagner Group’s command relationships with Russian officials remain clouded in ambiguity and might vary from operation to operation. The recent rebellion provides yet more compelling evidence of Wagner’s independent identity and its capacity to act on its own terms.

It is far from certain, therefore, that a court or tribunal considering the matter would conclude that the Wagner Group is a de facto State organ of Russia. Any such assessment would likely turn on how strictly the court adheres to the ICJ’s judgment in Bosnian Genocide. Applying the ICJ’s test literally, a court would find it difficult to conclude that the Wagner Group acted both in “complete dependence” on Russia and under the State’s “strict control.” Looking at the relationship more broadly, however, additional weight could be placed on other relevant factors such as Russia’s role in creating the PMC, its involvement in devising the group’s strategy, and the criticality of the Kremlin’s support to Wagner’s operations (Paramilitary Activities, para. 93-94, 110-112). Perhaps, if a court were to apply the ICJ’s test with a degree of flexibility, it might conclude that despite the PMC’s considerable independence, the Wagner Group acts as “merely the instrument” of Russia, meaning that it is a de facto organ of the State.

An additional factor that could impact the analysis is whether the Wagner Group is viewed as just one entity or as a number of separate entities operating in different parts of the world. Normally, a State organ is designated as such under the State’s domestic law meaning that all the entity’s conduct performed in its official capacity is attributable to the State. De facto State organ status, however, arises due to the factual relationship between the entity and the State. In the case of the Wagner Group, that relationship varies in the different locations where the group operates. For instance, unlike the Wagner forces deployed in Ukraine, the PMC’s fighters abroad are commercially motivated and were not recruited from prisons. If, because of these differences, the PMC can be viewed as several separate entities, it may be that the element that operates in Ukraine is more likely to qualify as a de facto State organ. Given the PMC’s independent sources of funding in Africa, for example, the test may be harder to satisfy in other locations where the Wagner Group operates.

Is the Wagner Group Authorized to Perform Governmental Functions on Russia’s behalf?

A second basis on which the Wagner Group’s conduct could be attributed to Russia is that the PMC was authorized to exercise governmental functions on Russia’s behalf (Article 5 ASR). The combat tasks that the group performs for Russia are clearly governmental in character. However, when codifying the rule of attribution, the International Law Commission included an additional requirement that the entity must be empowered to act in accordance with the State’s domestic law. It is doubtful whether this condition is satisfied in the case of the Wagner Group because PMCs remain illegal under Russia’s constitution (Articles 13(5) and 71) and criminal code (Article 359).

Putin’s admission that the Russian State provided significant funding to the Wagner Group might change this analysis. Assuming the provision of such large amounts of money to the PMC accorded with Russia’s domestic law, evidence of this together with Putin’s public acknowledgement of the links between the PMC and the State could be sufficient to satisfy the “empowered by law” requirement.

Alternatively, I have argued elsewhere that a requirement for authorization under the State’s domestic law limits the rule’s effectiveness in holding States to account. Russia is not the only State that has authorized private entities to act on its behalf via informal means that do not necessarily accord with its domestic law. In my view, the rule would better meet its object and purpose if other forms of State authorization could be taken into account when considering attribution. In the case of the Wagner Group, President Putin’s admission regarding the significant State funding the PMC receives would add further weight to existing evidence that the group’s activities are clearly authorized at the highest levels of the Russian government.

If the elements of this rule of attribution could be satisfied, it would apply to all the Wagner Group’s conduct when performing public functions on Russia’s behalf. The rule might not, therefore, attribute all the Wagner Group’s conduct to Russia. Although the PMC generally promotes Russia’s strategic interests across the globe, it sometimes acts pursuant to contracts with other entities or States. As such, the issue of attribution would turn upon the capacity in which the Wagner fighters were operating at the relevant time. If they were performing public functions pursuant to an authorization by the Russian State, the rule would attribute their conduct to Russia. But if, for example, Wagner fighters were providing security assistance for Mali at the time they acted in potential violation of international law, the same rule might attribute Wagner’s conduct to the Malian State.

Is the Wagner Group Acting Under Russia’s Instructions, Direction or Control?

If the Wagner Group’s conduct cannot be attributed to Russia on the grounds that the PMC qualifies as a State organ or because it is authorized to perform governmental functions on the State’s behalf, a third possible basis of attribution is that the PMC’s conduct in violation of international law was performed under Russia’s instructions, direction or control (Article 8 ASR). If attribution is appropriate on this basis, it is only the specific acts that violate international law and that were performed under Russia’s instructions, direction or control that would be attributable to the State. This rule of attribution, therefore, has a narrower scope of application than the two considered previously.

President Putin’s recent admission regarding the Wagner Group’s funding is most relevant to the issue of control. The appropriate control test for the purposes of the rule has been the subject of considerable debate. I concluded in a previous post that if the looser overall control test applies, it is likely that the Wagner Group’s conduct in violation of international law is attributable to Russia due to the significant links between the PMC and the State. This conclusion is strengthened by Putin’s acknowledgement of the substantial funding Russia provides to the group.

However, the more authoritative test for this purpose is the effective control test formulated by the ICJ (Paramilitary Activities para. 115; Bosnian Genocide para. 396-406). This is a very strict test, requiring evidence that State officials exercised a detailed or tactical level of control over the conduct that violates international law. The test is difficult to satisfy in the case of the Wagner Group because of the considerable ambiguity that surrounds the command relationships between Wagner’s leaders and the Russian military.

Unlike the test of overall control, which looks to the broader relationship between the entity and the State, the effective control test focuses on the State’s influence over the specific conduct that violates international law. For example, this threshold would only be satisfied in respect of Wagner’s alleged killing of civilians in Bucha if Ukraine could prove that Russian officials exercised command over the PMC’s fighters in that location at the relevant time. Because this inquiry is so specific, the significant funding that Russia now admits to providing to the group is of limited relevance to the effective control analysis.

Of course, a non-State actor’s high degree of dependence on a State can, in some cases, indicate an elevated level of State control. The more a non-State actor depends upon a State for funding and resources, the greater the degree of control the State is likely to be able to exert over the non-State actor’s conduct. But, as recent events vividly illustrate, the Wagner Group operates with considerable autonomy despite the Kremlin’s generous funding. Putin’s admission therefore does little to strengthen the argument that in its military operations, Wagner acts under Russia’s effective control.

A Look to the Future

Many questions remain regarding what’s next for the Wagner Group and Yevgeny Prigozhin. In contrast with his campaign to discredit Prigozhin and portray him as a liar, President Putin has described members of the Wagner Group as “Russian patriots” and said they will not face prosecution related to their attempted mutiny. Instead, they have the choice of either signing contracts with the Russian Ministry of Defense, returning home to their families, or going to Belarus.

Satellite imagery suggests that Belarus is already preparing for Wagner’s arrival. At this stage, it remains unclear how many fighters will opt to relocate; projections vary from one thousand to eight thousand. But assuming those fighters continue to engage in military operations and employ their usual brutal methods, in disregard of international law, questions of State responsibility will remain. These questions could even become more complex given the uncertainty regarding the Wagner Group’s status in Belarus and its future relationships with both the Belarussian and the Russian States.

Additional questions arise regarding the future of those Wagner fighters currently located outside Russia, Ukraine, or Belarus. In Syria, reports indicate that Russia’s deputy foreign minister informed President Assad that the Wagner Group would no longer operate there independently and that the PMC’s fighters were ordered to report to the Russian air base in Latakia.

Meanwhile, approximately five thousand members of the PMC continue to operate in Africa, including in Mali and the Central African Republic. The Kremlin has announced that notwithstanding Wagner’s rebellion, these operations will continue. However, it remains to be seen whether the fighters involved will integrate into the Russian armed forces, continue to operate under the banner of the Wagner Group, or split off into new PMCs. The outcome of these inquiries will impact the State responsibility analysis regarding future atrocities that, in all likelihood, members of the Wagner Group will sadly continue to commit.

***

Jenny Maddocks is an Assistant Professor in the Department of Law at the United States Military Academy, West Point.

 

Photo credit: Fargoh via Wikimedia Commons