The Wagner Group’s “No Quarter” Order and International Law
On April 23, 2023, Yevgeny Prigozhin, the leader of the Wagner Group, instructed members of his paramilitary force to “kill everyone on the battlefield.” In a post to a Wagner-affiliated Telegram account, he warned, “We will no longer take any prisoners.” Ironically, Prigozhin asserted that the Wagner Group “will not violate the rules of humanity and will simply destroy everyone on the battlefield.”
Prigozhin’s threat was made in response to a purported audio recording of an intercepted conversation between Ukrainian soldiers in which one asks what to do with a wounded soldier that they “smoked out of the hole.” The reply was “shoot him.” Prigozhin alleges that the recording is evidence of the killing of a prisoner.
However, it is unclear whether the audio file is authentic. Russian media outlets and Telegram channels have previously manipulated video and audio files and produced deep fakes to generate operational effects in Ukraine. According to the Kyiv Independent, the unidentified voices in the 21-second audio file speak Russian, and they neither mention that they are Ukrainian nor do they identify the prisoner or his nationality.
Regardless of whether the audio file is genuine, it is well-documented that the Wagner Group tortures and murders prisoners, including civilians (e.g., in Ukraine, Syria, and Mali). And former members admitted earlier this month to killing dozens of captured Ukrainian soldiers and civilians, including children. Indeed, former Wagner Group fighters have accused Prigozhin of ordering the group to “annihilate everyone” in the cities of Soledar and Bakhmut in Ukraine’s Donetsk Oblast.
The Prigozhin incident raises issues that earlier contributions to Articles of War have addressed. These include the use of digital forgeries (here and here) and the prohibition on reprisals (here). In this post, we zero in on the application of international humanitarian law (IHL) to Prigozhin’s “kill everyone” threat. We explain the lineage of the customary prohibition on declaring “no quarter” and note where it appears in treaty law and influential non-binding sources. The article also briefly describes guidance several countries, including the United States, have issued regarding “no quarter.” Finally, we differentiate between the prohibition in IHL and the associated war crime in international criminal law.
IHL’s “No Quarter” Prohibition
The term “no quarter” refers to an order that there shall be no survivors, a threat to conduct operations on that basis, or fighting in that manner. As will be explained, the prohibition is well-established in both customary and treaty law.
The practice of prohibiting no quarter orders is long-standing. As noted in the ICRC’s Commentary to Additional Protocol I to the Geneva Conventions (1977), the rule applied in ancient times only to “peoples of the same race, the same religion, or with whom there were friendly relations.” However, over time, the prohibition broadened. By the 19th, international law experts had reached a consensus that a customary rule prohibits no quarter attacks altogether. For instance, William E. Hall noted in his classic 1895 work, A Treatise on International Law, that the
… right to kill and wound armed enemies is subordinated to the condition that those enemies shall be able and willing to continue their resistance. It is unnecessary to kill men who are incapacitated by wounds from doing harm, or who are ready to surrender as prisoners. A belligerent therefore may only kill those enemies whom he is permitted to attack while combat is actually in progress; he may not as a general rule refuse quarter.
The consensus spawned a distinct but related rule prohibiting threats to take no prisoners. For instance, Article 60 of the 1863 Lieber Code (Instructions for the Government of Armies of the United States in the Field, General Order No. 100) provided that “it is against the usage of modern warfare to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter” (emphasis added).
Interestingly, the Lieber Code included a narrow exception permitting a commander to order no quarter when “his own salvation makes it impossible to cumber himself” with prisoners. The international legal community rejected this exception when drafting subsequent treaties and guidance. For instance, in Outlines of International Law (1914), Admiral Charles Stockton, who was twice President of the Naval War College and authored the Navy’s first law of naval warfare manual (The Laws and Usages of War at Sea), observed that the exception “seems to be either an impossible danger or one that can be avoided by the release or disarmament of the overpowered enemy. It should be considered as obsolete.”
Although the Lieber Code bound only the Union Army of the United States, it articulated a norm that repeatedly appeared in subsequent treaties and manuals. For example, the Brussels Conference, which brought together delegates from 15 European nations to draft a treaty on the “laws and customs of war,” addressed the subject in its 1874 Brussels Declaration. Article 13(d) strictly forbade a “declaration that no quarter will be given.” Although never ratified, the Declaration is generally deemed an accurate reflection of the law as it stood at the time. Similarly, in 1880, the Institute of International Law adopted its Manual on the Laws of War on Land, commonly referred to as the Oxford Manual. Article 9(b) likewise provided that it is prohibited “to declare in advance that quarter will not be given.”
The Brussels Declaration and Oxford Manual proved highly influential during the First (1899) and Second (1907) Hague Peace Conferences that adopted various treaties and declarations on the law of war. For example, Articles 23(d) of the Regulations annexed to the 1899 Hague Convention II and 1907 Hague Convention IV provided that it is “especially” forbidden “to declare that no quarter will be given” (here and here, respectively).
Like the United States, Russia became a Party to Hague Convention IV in 1909 (Ukraine in 2015). But even if it had not, broad consensus exists that its text reflects customary law. Of particular note, the International Military Tribunal (IMT) at Nuremberg and the IMT for the Far East agreed that by the outbreak of the Second World War, the rules set forth in the Regulations “were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” (Nuremberg Judgment). The International Court of Justice adopted the same position in its Nuclear Weapons advisory opinion (¶ 79).
Given this consensus, it is unsurprising that Additional Protocols I and II (AP I and AP II) to the Geneva Conventions included provisions forbidding declarations of “no quarter.” Article 40 of AP I, which applies to international armed conflicts, states, “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.” Article 4(1) of AP II, which applies during certain (see art. 1) non-international armed conflicts, is a bit narrower: “It is prohibited to order that there shall be no survivors.” However, it surely encompasses the same conduct as its international armed conflict counterpart.
Although Hague Convention IV and Additional Protocol I’s prohibitions are applicable only to land warfare, the customary rule applies to naval warfare as well. For instance, Article 17 of the International Institute of International Law’s 1913 Oxford Manual of Naval War (analogous to the aforementioned Oxford Manual) contains a similar provision. More recently, the 1995 San Remo Manual on the International Law Applicable to Armed Conflicts at Sea provides, “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis” (rule 43). And with respect to aerial warfare, the Harvard Manual on International Law Applicable to Air and Missile Warfare prohibits denying quarter “to those manifesting an intent to surrender” (Rule 15(a)). Its accompanying commentary confirms that the prohibition extends to threats.
Finally, the ICRC’s Customary International Humanitarian Law study’s Rule 46, correctly in our estimation, reflects the state of customary IHL: “Ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is prohibited.” It also cites, again accurately in our view, two other customary rules that are related to the no quarter issue. The first is the prohibition on attacking persons recognized as hors de combat (Rule 47). Individuals are hors de combat when they are defenseless, for example due to wounds or being shipwrecked, or because they have expressed an intention to surrender. The second prohibits attacking individuals parachuting from an aircraft in distress (Rule 48).
To summarize, the no quarter rule prohibits both threats of and actions involving no quarter. This is so regardless of whether the policy or practice is directed at all otherwise targetable individuals or only a particular group, such as special forces behind enemy lines.
State Guidance on “No Quarter”
State practice, including official statements and military manuals, reinforces the customary nature of the prohibition on declaring “no quarter.” In 1987, for instance, Michael Matheson, the Deputy Legal Adviser of the U.S. Department of State, identified the elements of Additional Protocol I that the United States believed reflected customary international law. Concerning Article 40’s prohibition, he noted, “We support the principle that no order be given that there shall be no survivors nor an adversary be threatened with such an order or hostilities be conducted on that basis.” Four years later, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the United States affirmed that its practice was consistent with the prohibition on ordering that there shall be no survivors (Digest of U.S. Practice in International Law, 1991-1999, at 2064).
U.S. military manuals are in accord. Most significantly, the DoD Law of War Manual reflects the long-standing and comprehensive U.S. position on the matter (§ 5.4.7).
Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declare that no quarter will be given. This means that it is prohibited to order that legitimate offers of surrender will be refused or that detainees, such as unprivileged belligerents, will be summarily executed. Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter.
This rule is based on both humanitarian and military considerations. This rule also applies during non-international armed conflict.
In support, the DoD Manual cites the Hague Convention IV of 1907 (to which the U.S. is a party). But it also approvingly cites the ICRC’s Commentary to Article 40 of Additional Protocol I, which explains (¶ 1595),
Article 40 is emphatic, and it is timely: any order of “liquidation” is prohibited, whether it concerns commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, parachutists, mercenaries or persons considered to be mercenaries, or other cases. It is not only the order to put them to death that is prohibited, but also the threat and the execution, with or without orders.
The Army/Marine Corps Commander’s Handbook on the Law of Land Warfare (FM 6-27/MCTP 11-10C) contains text identical to its DoD counterpart (¶ 2-103). Its information warfare section also reiterates that “it is prohibited to threaten an adversary by declaring that no quarter will be given” (¶ 2-184). In forbidding the practice, the Handbook follows in the footsteps of the Army’s 1956 Law of Land Warfare manual (¶¶ 28-29), which based the prohibition on Article 23 of Hague Convention IV’s Regulations.
According to the ICRC’s ongoing customary IHL effort to collect State practice, several dozen States have incorporated the prohibition into their military manuals, and sixteen have codified the ban in law. For example, Ukraine’s 2004 Manual on the Application of IHL Rules states, “The following methods of warfare shall be prohibited: … ordering that there shall be no survivors, to threaten an adversary therewith” and that “Serious violations of international humanitarian law directed against people include: … declaring that no quarter will be given” (§§ 1.3.2 and 1.8.5).
Of direct relevance to Prigozhin’s threat, the 2001 Manual on International Humanitarian Law for the Armed Forces of the Russian Federation (unofficial translation) issued by the Ministry of Defense characterizes “ordering that there shall be no survivors, threatening therewith or conducting hostilities on this basis” as prohibited methods of warfare (§ 7). Moreover, “no survivor” orders are said to be unlawful during non-international armed conflict (on characterization of the conflict in Ukraine as international or non-international, see here).
Whether Russia is responsible under the law of State responsibility for the conduct of the Wagner group for violations of international humanitarian law is an open question addressed in earlier Articles of War posts (see here and here). Assuming it is (a reasonable conclusion, in our opinion), Russia has violated the prohibition on declaring no quarter.
“No Quarter” in International Criminal Law
States violate international humanitarian law rules, but individuals commit war crimes by violating international criminal law. It has long been the case that ordering the denial of quarter and denying quarter are war crimes.
The Report of the Commission on Responsibility set up after World War I, for example, listed [d]irections to give no quarter” as a war crime. Today, Article 8(2)(b)(xii) of the Rome Statute of the International Criminal Court, which applies in the Russia-Ukraine conflict, likewise provides that “declaring that no quarter will be given” is a war crime in international armed conflict. The Statute similarly criminalizes doing so during non-international armed conflict (art. 8(2)(e)(x)). It follows that subordinates are prohibited from carrying out such an order. And according to the doctrine of command responsibility, commanders and other superiors may bear individual responsibility for the crime if their subordinates engage in no-quarter actions even though they did not order them to do so. As a war crime, no-quarter operations are subject to universal jurisdiction under international law, thereby allowing prosecution by any State, including those that have no connection to the offense.
As Yevgeny Prigozhin demonstrated this week, the rule prohibiting declarations of no quarter has not always been respected. Violations have led to a number of prosecutions for the offense, particularly after the First and Second World Wars. In 1921, for instance, during the so-called “Leipzig Trials,” the German Supreme Court (Reichsgericht) considered whether Lieutenant General Karl Stenger, the commander of the 53rd German Infantry Brigade, ordered his subordinates, including a co-accused, Major Crusius, not to “give pardon” (i.e., take no prisoners and kill the wounded). Although the Major and two other witnesses testified about General Stenger’s order to kill wounded French prisoners of war in Alsace, the court acquitted him, sparking an uproar in Europe.
Following the Second World War, a British military court established in Hamburg, Germany, convicted the captain of Unterseeboat 852, Kapitänleutnant Heinz Eck, and four of his submariners for murdering the steamship “Peleus’” crew after they sunk her with a torpedo. In the October 1945 Peleus Trial, Eck testified that he believed the remaining life rafts presented a danger to his crew and that it was against his orders to take survivors on his U-boat. Indeed, a German U-boat command instruction provided, “No attempt of any kind should be made at rescuing members of ships sunk, and this includes picking up persons in the water and putting them in lifeboats.” Nonetheless, the court convicted Eck of ordering his crew to attack persons hors de combat and convicted the crewmen for carrying it out. Two months later, in the Abbaye Ardennes case, a Canadian military court in Aurich, Germany, convicted the commander of the 25th S.S. Panzer Grenadier Regiment for counseling his men to deny quarter to Allied troops.
The best-known trial on the matter is United States v. of Wilhelm von Leeb et al. (The High Command case). In that 1948 case, a U.S. military court in Nuremberg tried former high-ranking German Army and Navy officers for directing that certain enemy troops be refused quarter and that certain captured members of the military forces of nations at war with Germany be summarily executed. It convicted Generalfeldmarschall Wilhelm von Leeb of transmitting Hitler’s orders to Nazi troops requiring them to kill Russian soldiers, guerillas, and political commissars without regard for humanity or international law.
Numerous other cases on the denial of quarter have usefully been catalogued by the ICRC in its customary law database. There is simply no doubt that denial of quarter is a war crime.
Conclusion
Ordering no-quarter and engaging in no-quarter actions have long violated international humanitarian law. In this case, it is at least arguable that Russia bears responsibility for the breach. As explained above, whether that is so depends on legal attribution under the law of State responsibility.
With regard to Yevgeny Prigozhin, he clearly violated international criminal law when he threatened to “kill everyone on the battlefield” and ordered the Wagner Group not to take any prisoners. Because no quarter amounts to a war crime, universal jurisdiction exists. Additionally, in our view, the International Criminal Court could do so, as it has over President Vladimir Putin’s.
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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Major John C. Tramazzo is an active-duty Army judge advocate currently enrolled in the College of Naval Command and Staff at the United States Naval War College in Newport, Rhode Island.
Photo credit: Houses of the Oireachtas via Wikimedia Commons
