Ukraine Symposium – The Wagner Group: Status and Accountability

Since Russia commenced its full-scale invasion of Ukraine in February 2022, the Wagner Group has come out of the shadows. Used by the Kremlin as an alternative fighting force since 2014, the private military company (PMC) now operates with a much greater degree of prominence. Not only has the group undergone a rebranding, with a new logo and plush headquarters in St Petersburg, it also played an important and widely reported role in the Russian offensives to take the town of Soledar, as well as other territory in the vicinity of Bakhmut. After initially crediting conventional forces with the success at Soledar, Russia’s Defense Ministry issued a rare statement acknowledging Wagner’s role. Meanwhile, the PMC’s leader, oligarch Yevgeny Prigozhin, now openly admits his links to the group, even going on a personal recruitment drive in Russian prisons to enroll new fighters.

The Wagner Group’s more prominent role in Ukraine raises questions regarding the status of its fighters under the law of armed conflict (LOAC). A recent post flagged these issues in the context of a Wagner fighter who escaped into Norway. Wagner’s role in the conflict also highlights questions of accountability. Allegations of LOAC violations involving the group have been numerous, including claims that its fighters played a leading role in the massacres at Bucha, caused the deadly attack on a building that housed Ukrainian prisoners of war, and conducted the brutal execution of a former fighter.

In this post we consider, first, the status of Wagner Group fighters under LOAC before moving to discuss potential individual and State responsibility for their actions.

The Status of Wagner Group Fighters under LOAC

The Wagner Group engages in conflict not only in Ukraine but also around the world. As a preliminary matter, therefore, it is important to recall that any analysis of Wagner members’ status while fighting in Ukraine would be limited to that territory and not necessarily applicable to other areas. Even if the group attains a certain status in Ukraine, a separate analysis is required for the group’s operations in another conflict environment like Syria or Mali.

Regarding Ukraine, the conflict is international in character. Thus, the Geneva Conventions and Additional Protocol I (AP I) apply given that both Russia and Ukraine are party to these treaties. The status of members of the Wagner Group under LOAC depends primarily on whether they meet the criteria set out in Articles 43 and 44 of AP I. First, however, it is pertinent to consider whether they are mercenaries within the meaning of Article 47 of AP I.

Are Wagner’s Members Mercenaries?

Media reports frequently describe the Wagner Group as mercenaries. However, as discussed here, the “unworkability” and “narrowness of the definition” in Article 47 mean that as a matter of law, very few fighters in Ukraine would qualify. While some of the Wagner Group’s members might satisfy this definition, it is clear that others will not. For instance, Article 47 requires that a mercenary is not a national of a party to the conflict. Although the PMC’s members include a range of nationalities, reporting indicates that many Wagner fighters in Ukraine are Russian convicts. These, therefore, would not qualify as mercenaries under Article 47(2)(d). There is also ambiguity whether Wagner’s fighters are motivated to participate in the conflict “essentially by the desire for private gain.”

If any members of the Wagner Group do meet the mercenary definition, Article 47 provides that they are not entitled to combatant or prisoner of war status. Assuming, however, that the majority of Wagner’s fighters do not qualify as mercenaries, it is necessary to look to Articles 43 and 44 AP I to ascertain their status.

Are Wagner’s Members “Armed Forces of a Party to the Conflict”?

If Wagner Group fighters fall within the definition of “armed forces” in Article 43 AP I, they are combatants, meaning that they have the right to participate directly in hostilities. This status would grant them immunity from prosecution relating to their combat operations. If they do not attain this status, however, Wagner’s members enjoy no international law protection from domestic prosecutions related to their participation in hostilities.

According to Article 43, “[t]he 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….” The first question to consider, therefore, is whether Wagner Group fighters operate under a command responsible to Russia.

A recent case from the Hague District Court (discussed here) examined whether rebels operating in the Donbas region of Ukraine were “armed forces” within the meaning of Article 43. The Court considered two issues of relevance. First, whether the conflict in the Donbas had been internationalized due to Russia’s overall control over the rebels and second, whether the rebels were entitled to combatant status.

Taking into account the close relationship between the rebel leaders and Russian officials, the material support Russia provided, and their mutually coordinated military operations, the Court concluded that Russia exercised overall control over the rebels meaning that the conflict was international in character and AP I applied. However, the same facts did not lead the Court to conclude that the rebels were under a command responsible to Russia within the meaning of Article 43 AP I. The Court determined that the rebels were not entitled to combatant status based on the fact that Russia “denied any control or involvement” with them during the period in question.

This decision has faced criticism due to its heavy emphasis on Russia’s statements rather than the evidence of its control over separatist forces. Nonetheless, it implies that more is needed to establish whether a group is under a responsible command for the purposes of Article 43. In other words, equipping, financing, and assisting with planning are not enough to establish responsible command. Instead, a commentary to the Additional Protocols indicates that the key question is whether, in their operations, the forces are “subordinate to a command which is responsible to one of the Parties to the conflict.” A footnote to the commentary highlights that “[i]n general, the exercise of such responsibility implies the exercise of effective control over subordinates.”

To establish whether members of the Wagner Group are entitled to combatant status, therefore, it is helpful to consider whether they act under Russia’s “effective control.” Recent reporting assists this assessment, indicating that the PMC clearly acts on Moscow’s behalf. For example, Russia’s Defense Ministry, which initially took credit for the victory in Soledar, acknowledged that the “mission was successfully accomplished by the courageous and selfless actions of the volunteer assault units of the Wagner private military company.” This recognition, coupled with reports that the Wagner Group filled its ranks with Russian convicts, demonstrates close linkages between the group and the Russian government.

Yet, these facts are insufficient to determine whether the Wagner Group operates under a command responsible to Russia. Given the focus on “effective control over subordinates,” further information is needed regarding the command relationship between Wagner’s leaders and the Russian Ministry of Defense.

The details of this relationship remain unclear from reporting and could vary from operation to operation. For instance, one report indicates that “Wagner forces assisted other Russian troops in the Battle of Severodonesk” whereas they “took the lead” in the Bakhmut offensive. These differing roles may have implications for the relevant command relationships. Thus, in operations when Wagner forces assisted other Russian troops, they may have acted under the command of Russian military officers. However, in operations where they took the lead, perhaps they operated under their own separate chain of command. Without knowing the full facts regarding the relationship between Russia and the Wagner Group, it is difficult to reach any firm conclusions regarding the status of Wagner fighters under LOAC.

In addition, even if evidence is available to indicate that Wagner’s forces operate under Russian command, Article 43 also requires the group to have an “internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” It is unclear from media reporting whether such a system exists within the Wagner Group. Indeed, the many allegations against the PMC seem to indicate that it does not have any form of internal disciplinary system that would facilitate LOAC compliance. It is more likely that the reported impunity with which Russia’s conventional forces act is replicated within Wagner. Thus, Article 43’s requirements may be too high a standard for members of the Wagner Group to meet.

Are Wagner’s Members Entitled to Prisoner of War Status?

If the Wagner Group were to meet the definition of an armed force under Article 43 AP I, the PMC’s fighters would be entitled to prisoner of war status. This means that if captured, the detaining power must afford them all the protections included within the 1949 Third Geneva Convention.

Article 44 AP I also lists a number of additional requirements that combatants must meet in order to qualify as prisoners as war. Thus, combatants lose this status if they fail to distinguish themselves from the civilian population in accordance with Article 44(3). However, it is notable that LOAC violations do not deprive combatants of prisoner of war status. Article 44(2) provides that “[w]hile all combatants are obliged to comply with the rules of international law applicable to armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant.” Consequently, despite the numerous allegations of systematic and egregious LOAC violations on the part of Wagner Group fighters, provided they qualify as combatants, these violations would not deprive them of prisoner of war status upon capture.

Accountability for the Wagner Group’s LOAC Violations

Wagner Group fighters’ status under LOAC determines whether they have combatant immunity, meaning that they cannot be prosecuted for their mere participation in the hostilities. However, it leaves open the issue of accountability regarding the many LOAC violations involving the group. This can be addressed by asking two questions. First, could individual fighters be held to account for the commission of war crimes? And second, in what circumstances would Russia bear State responsibility for the group’s LOAC violations?

The distinction between these two forms of accountability is important as each has different consequences. While a fighter’s conviction for war crimes results in penal sanctions, aimed at punishing the individual concerned and deterring future crimes, Russia’s State responsibility would lead to wider consequences. These include an obligation on the State to cease its harmful conduct and to make reparation for any damage or injury caused. In addition, only State responsibility would recognize the official nature of the Wagner Group’s conduct, performed on behalf of the Russian State.

Individual Criminal Responsibility

The issue of individual criminal responsibility is relatively straightforward. Reporting indicates that like Russia’s conventional forces, members of the Wagner Group have committed numerous war crimes during the conflict, including the wilful killing of civilians in Bucha. Individual fighters can be prosecuted for such crimes either in Ukraine, at an international forum such as the International Criminal Court, or in another State under the principle of universal jurisdiction. Moreover, those who ordered the crimes or allowed them to take place can be held to account based on the doctrine of command responsibility.

While achieving individual criminal justice may be time-consuming and imperfect, there is at least the possibility that in due course, Wagner Group fighters might be brought before a court and held to account for their actions.

State Responsibility

The question of Russia’s State responsibility is more complex and turns upon the issue of attribution. In other words, is the Wagner Group’s conduct in violation of LOAC attributable to Russia, thereby leading to State responsibility? This is an issue that one of us addressed previously, when the Wagner Group was still a shadowy organization with ambiguous links to the Kremlin. At that time, attributing the Wagner Group’s conduct to Russia presented considerable difficulties, particularly in view of the opaque relationship between Moscow and the PMC.

Given the Wagner Group’s more prominent role in recent months, the question arises whether these changed factual circumstances alter the attribution analysis. The response depends upon the particular basis of attribution. The law of State responsibility includes various grounds on which private conduct may be attributed to a State but in simple terms, attribution can be based either on the factual relationship between the parties or on the State’s domestic law.

Attribution Based on Law

Considering first attribution based on law, it is notable that notwithstanding the greater public links between Russia and the Wagner Group, their legal relationship has not changed. A conclusion that members of the PMC “belong” to Russia for LOAC purposes, or are entitled to prisoner of war status, does not mean that they are de jure State organs under the terms of Russia’s domestic law (Article 4 of the International Law Commission’s Articles on State Responsibility (ASR)). Russian law still does not authorize or recognize the activities of PMCs such as the Wagner Group. This means that the group’s legal status is different from that of Russia’s conventional forces. While Russia automatically bears international responsibility for the many LOAC violations committed by its armed forces, which qualify as organs of State, the same is not true of similar violations committed by members of the Wagner Group.

The illegality of PMCs under Russian domestic law also precludes the attribution of the Wagner Group’s conduct to Russia on another basis. When a State authorizes a non-State actor to perform governmental functions on its behalf, the entity’s conduct when performing those tasks is attributable to the State (Article 5 ASR). At first glance, this rule of attribution should apply to the Wagner Group’s conduct, given that the PMC undertakes combat functions on Russia’s behalf, which are governmental in character. Moreover, the group clearly acts with State authorization, as demonstrated by its recruitment drive from Russian prisons and its reliance on Russian military assets. Nonetheless, the rule applies only if the State empowers the entity to act in a manner that accords with its domestic law. As PMCs remain illegal in Russia, it seems that this criterion is not satisfied. Therefore, the rule of attribution does not apply.

Attribution Based on Fact

It is therefore necessary to turn to the factual relationship between Russia and the Wagner Group to ascertain whether this provides a basis for attribution. The PMC’s conduct could be attributed to Russia if the fighters responsible for specific LOAC violations acted under Russia’s instructions, direction or control (Article 8 ASR). Given the enduring relationship between Moscow and the PMC, the key question here is whether Wagner Group fighters acted under Russia’s control.

The appropriate standard of control for the purposes of this rule of attribution has been the subject of considerable debate. However, the most authoritative test is the “effective control” test formulated by the International Court of Justice (paras 396-406). Although this test uses the same language as the commentary to Article 43 AP I, “effective control” does not necessarily have the same meaning for the purposes of determining both combatant status and attribution.

In the State responsibility context, the effective control test concerns the State’s influence over the specific conduct that violates international law and requires a detailed level of State control. In effect, for conduct to be attributed to a State pursuant to this test, State officials must exert tactical control over the operation in which the relevant violations were committed. In the case of the Wagner Group, this would mean that evidence is required, for example, that Russian military officers exercised command and control over the Wagner Group fighters who were involved in the killing of civilians.

It may be that given the more open links between Russia and the Wagner Group, such evidence can be found. Nevertheless, the effective control threshold is extremely high and often, the exact State involvement in an activity remains uncertain. Regarding the capture of Soledar, for example, if it is correct that the Wagner Group led the assault rather than acting in support of Russian troops, this suggests the PMC may have operated independently from Russia’s conventional forces, within its own separate chain of command. If that was the case, the PMC did not act under Russia’s effective control, even if the State provided strategic direction and material support towards the offensive.

As when seeking to determine the status of Wagner Group fighters under LOAC, further information is required regarding the command relationship between Wagner’s fighters and Russian military forces. Without this, it may prove difficult to establish Russia’s effective control over the Wagner Group’s conduct in violation of international law. Thus, despite increased clarity regarding the PMC’s links to the Kremlin, finding sufficient evidence to establish State responsibility is likely to remain a challenge. 

Concluding Thoughts

Russia’s evolving use of the Wagner Group demonstrates the PMC’s continued importance in promoting Moscow’s military and strategic objectives across the globe. In Ukraine, while Russia’s conventional forces have foundered, the Wagner Group’s brutal methods including its use of prisoners as “cannon fodder” have met with some degree of success. Unless internal power struggles intervene, it is unlikely that Russia will cease to employ the group any time soon. Indeed, reports that Belarus has created its own PMC, similar to Wagner, indicate that the trend may instead proliferate.

Given the prominent role that groups such as Wagner are likely to play in future conflict, it is critical that military forces understand their status under LOAC. This determination is not straightforward in the case of the Wagner Group in view of the considerable ambiguity that still surrounds the command relationships between Russian officials and the PMC’s leaders. On balance, there is currently insufficient information available to conclude that the Wagner Group operates in Ukraine under a command responsible to Russia. It may be that this assessment changes, however, as the group and its activities on Russia’s behalf emerge from the shadows.

In addition, accountability is key. International law should not permit States to evade their international legal obligations though the use of unofficial forces like the Wagner Group. While individual fighters should be held criminally accountable for any war crimes with which they were involved, Russia should also bear State responsibility for the PMC’s atrocities. It is only State responsibility that would reflect the official nature of the Wagner Group’s acts, which were clearly perpetrated while the group was conducting combat operations on Moscow’s behalf. Although attribution remains a challenge, it is possible that the more prominent role that the Wagner Group now plays might increase the likelihood that Russia will, one day, bear international responsibility for the group’s many LOAC violations.

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COL Winston Williams is Head of the Department of Law at the United States Military Academy and Co-Director of the Lieber Institute for Law and Land Warfare at West Point.

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

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