Ukraine Symposium – A Wagner Group Fighter in Norway

In the early hours of Friday, January 13th, the alarm went off in a military border guard base in northern Norway. Someone had illegally crossed the border with Russia, and Norwegian conscripts were tasked to find the person. The intruder turned out to be a former commander of the Wagner Group, who, while wearing white camouflage, managed to get into Norway by crossing a river. He described a dramatic escape from Russian border guards and their dogs.

The border, which is almost 200 kilometers long, is in a desolate area. There is no fence, but sources within the Norwegian Army have told the media that it is nearly impossible to cross without being detected by Russian border guards. Once in Norway, the man, later identified as Andrej Medvedev, knocked on the door of a civilian home to ask for help (local media reports that the people of Pasvik now will start to lock their doors at night). Soldiers detained him 3 kilometers from the border and then immediately handed him over to the police. Medvedev then requested asylum and indicated his willingness to testify against Yevgeny Prigozhin, aka “Putin’s chef,” the founder of the Wagner Group.

International Law

The story reads like the start of a James Bond film, but it is far from clear how it will unfold. At the core of the case are several international legal questions that are now hotly debated in the media and among international law experts. What is the status of the Wagner Group’s members? Are they mercenaries, members of militias or other volunteer corps belonging to a Party to the conflict, or members of the Russian armed forces? The answer requires investigation and depends on the role of Medvedev’s troop and its connection to Russia and President Vladimir Putin. Currently, Medvedev has the status of a witness, but this may change as the investigation evolves. After a short internment at an immigration center, Norway released him on January 25^th pending the outcome of his asylum application and investigation into his role in Wagner.

The Wagner Group is generally described as a brutal group of mercenaries. Legal discourse has focused on how the international community can hold Russia and its leaders responsible for their actions under the law of State responsibility or international criminal law (see for instance here, here, and here). The current case raises new and different questions, however. Was Medvedev a combatant with combatant privilege or a criminal with no right to use force (Additional Protocol I (AP I) art. 43(2))?

It seems the Wagner Group’s role has changed since the Russian invasion of Ukraine. It is no longer a private company with no official ties to the Kremlin. Now, President Putin’s close ally Prigozhin is open about the fact that he’s in charge of Wagner and that they are operating in Ukraine. Russia has also permitted the Wagner Group to recruit new members from prisons.

Before considering specific international law issues it is worth mentioning that although Norway has criminalized membership of terrorist groups, the categorization of such groups is based on UN and EU lists, on which the Wagner Group does not appear. Mere membership of the group is therefore not a crime under Norwegian law, and Medvedev can only be prosecuted if the investigation proves that he has been involved in criminal activities.

Combatant Status

From a law of armed conflict (LOAC) perspective, the first issue to determine is whether the ties between Russia and the Wagner Group are now of such a nature that Medvedev is a member of the Russian armed forces, or perhaps more likely, a member of a militia or other volunteer corps belonging to a Party to the conflict. The criteria for the latter are set out in Geneva Convention III article 4:

a. that of being commanded by a person responsible for his subordinates;

b. that of having a fixed distinctive sign recognizable at a distance;

c. that of carrying arms openly;

d. that of conducting their operations in accordance with the laws and customs of war.

Although it may be debated whether the last requirement, relating to LOAC compliance, is met, the focus here will be on the first: being commanded by a person responsible for his subordinates. This must be read in light of AP I art. 43(1) (both Russia and Ukraine are party to AP I), which is also applicable to regular armed forces:

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. 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.

Those who are in this category are combatants, and “have the right to participate directly in hostilities” (AP I art. 43(2)). This means that they have immunity from prosecution for lawful acts of war, on the basis that they fight on behalf of the State.

How Should Norway Deal with Medvedev?

Combatant status, with all the privileges it entails, is at the core of the question concerning how to deal with Medvedev and other Wagner members. Russia was previously very clear in its position that the Wagner Group was not acting on Russia’s behalf and that Russia was not responsible for the group’s actions. Despite the information concerning Wagner forces’ brutality in Ukraine, it does not appear that Russian leadership are sanctioning their conduct or increasing control over them. In fact, Wagner’s position appears to be based on a personal bond between Prigozhin and Putin, a bond that, according to reports by the Institute for the Study of War, is deteriorating. Admittedly, it does not seem like Russia is sanctioning violations by its regular armed forces either, although here the link to the Russian State is undisputed.

Although the Wagner Group is clearly using Russian military equipment and training facilities and it operates alongside Russia’s regular armed forces in Ukraine, at this point, there is not enough information to reach a conclusion regarding the group’s status. The challenge is that we may never know the exact nature of the connections between the Wagner Group and the Russian authorities, and in the meantime, cases like that unfolding in Norway will continue. So how should we deal with them?

Considering that part of the Wagner Group’s purpose has been to offer Russia plausible deniability regarding their actions, it is unlikely that Moscow would ever accept responsibility for their conduct. It is also unlikely that Russia will request that Medvedev is treated as a combatant with combatant immunity. This would entail that the Russian government accepts command responsibility (AP I art. 87) for the Wagner Group’s actions or for the failure to prevent the LOAC violations they have committed. The most efficient way to hold someone responsible for the actions of Wagner’s members is therefore through individual responsibility and by accepting the Russian narrative that the Wagner Group is not their responsibility.

The Wagner Group’s status will affect the investigation into which crimes may have been committed. Although LOAC is strict in the requirement to uphold the principles of distinction and proportionality, and in rules prohibiting indiscriminate attacks, it is also clear that soldiers are assessed on the basis of their knowledge at the time of attack (cf. the Rendulic rule) and that mistakes are tolerated if they are deemed reasonable. As a result, situations which at first glance appear to be an obvious war crime, for instance because of the degree of civilian harm, may prove hard to prosecute. It may be, for example, that the troops thought the civilian buildings were militarized and had been informed that all civilian persons had evacuated. However, if the Wagner fighters involved are in fact mercenaries, they have no right to use force in the first place.

The question of war crimes is not only important in respect of a potential prosecution. Medvedev has applied for asylum. Norway does not normally grant asylum if the applicant has committed war crimes. Medvedev claims that he has witnessed atrocities but has not carried them out. Yet he may nonetheless be tried for complicity, aiding or abetting, or under the international criminal law concept of co-perpetration or “joint criminal enterprise” (JCE, or as critics refer to it: “just convict everybody”). Norwegian criminal law reflects a wide approach to aiding and abetting, a point already raised in relation to war crimes before Norwegian courts (2008-2011), in a case originating in the former Yugoslavia.

Deportation to Russia or Ukraine?

One of the questions that has been raised in Norwegian media is whether Medvedev can be deported to Ukraine or to Russia. According to LOAC, all States are obliged “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” (GC III art. 129). Both Ukraine and Russia could request Medvedev’s extradition based on their compliance with this duty. However, as Medvedev is on Norwegian soil, he is under the human rights jurisdiction of Norway, placing additional restraints on Norwegian authorities’ options.

With regard to Russia, Medvedev has claimed that there is a real risk to his life if he is returned. If that fear is considered reasonable, the principle of non-refoulement, prohibiting States from returning individuals to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation, would apply. The principle is found amongst others in the Convention Against Torture (art. 3) but is also considered to be customary international law. As a result, even if Norway decides that Medvedev has no right to asylum and should be deported, the deportation cannot be effectuated if the risk remains. Norway has experience with this situation before, in the case of Mullah Krekar whom Norway attempted to deport to Iraq. In that case, the issue was solved by an Italian extradition request and criminal prosecution there.

In relation to Ukraine, it is questionable whether Norway could hand over a member of the opposing armed forces to become a prisoner of war. To that end, Medvedev’s status under LOAC could be relevant for the application of neutrality law. According to Hague Convention V, Article 11: “A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.” If Medvedev is considered to belong to the Russian armed forces, he should be detained. However, the Norwegian Ministry of Foreign Affairs expressed in 2022 that they considered the Hague neutrality rules outdated and of limited relevance, and Ukrainian soldiers have been trained in Norway and then permitted to return to Ukraine to continue fighting. It is, in other words, unlikely that neutrality law will be relied upon here.

If, on the other hand, Medvedev is a “mere criminal,” questions arise regarding his treatment. Will he, for instance, be given a fair trial? In light of Norwegian support to Ukraine, it would be problematic to suggest otherwise. As the Ukrainian court system is expected to have thousands of other cases to deal with, the practical solution may in any case be for Norway to investigate.

Concluding Thoughts

So what will happen next? As mentioned at the start, it is not clear how this story will end. With the information Medvedev has and his expressed willingness to talk, he will first and foremost be a valuable source for the Norwegian authorities. Whether Norway at some stage has to determine the legal impact of his membership in the Wagner Group and consequently his status under international law, will depend on what the investigation unveils. Regardless of the outcome, the case is a reminder of the complexities involved in holding individuals responsible for crimes committed during armed conflict.

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Dr. Camilla G. Cooper is an Associate Professor of operational law at the Norwegian Defence University College.

Photo credit: Ministry of Defense of Ukraine