Was Russia at War with the Wagner Group?
Tension has long existed between Yevgeny Prigozhin’s Wagner Group, a private military company that has borne the brunt of the deadliest fighting in Ukraine, and the Russian armed forces. In particular, Prigozhin has singled out Russian Defense Minister, Sergei Shoigu, and the Chief of the General Staff, Valery Gerasimov, accusing them of deliberately starving his forces of supplies. To exert control over the group, the government announced in early June that “volunteer formations” like Wagner would be required to sign contracts with the Russian Ministry of Defense by month’s end (see Maddocks). Unsurprisingly, the Wagner Group did not comply.
That tension erupted into rebellion on Friday, 23 June, when Prigozhin labeled the Russian leadership “evil” and stated, “Those who destroyed our guys today, those who destroyed tens, many tens of thousands of lives of Russian soldiers will be punished.” He alleged that Russian forces had attacked the Wagner Group, killing “a huge number of fighters.” Prigozhin named Shoigu and Gerasimov as responsible for the supposed rocket, artillery, and helicopter attack and the deaths of 2,000 Wagner Group fighters. Russian authorities denied the incident.
By the following morning, the Wagner Group had moved back into Russia (Prigozhin’s so-called “march for freedom”) and seized Rostov-on-Don (population 1.1 million), the largest city in southern Russia. Rostov-on-Don hosts the headquarters of Russia’s Southern Military District. The District commands the 58th Combined Arms Army, which is defending against Ukraine’s counter-offensive. It is also the command center for the Russian Joint Group of Forces in Ukraine and the key logistical hub for operations in Ukraine. And additional Wagner units headed north toward Moscow. They would eventually come within 125 miles of the capital (according to Prigozhin).
This was not an isolated mutiny over minor issues. Prigozhin charged that the “war wasn’t needed to return Russian citizens to our bosom, nor to demilitarize or denazify Ukraine….[It] was needed so that a bunch of animals could simply exult in glory.” He warned, “There are 25,000 of us and we are going to figure out why chaos is happening in the country.” It was not a far-fetched threat. Estimates of the group’s overall size range up to 50,000; it is heavily armed, on par with a State’s armed forces.
Russian authorities immediately launched an investigation into Prigozhin for “organizing an armed rebellion,” with the Prosecutor General warning that he faced up to 20 years in prison. The Federal Security Services (FSB) urged Priogozhin’s soldiers to arrest him. And President Putin promised a harsh response to such “treason.” He proclaimed, “All those who deliberately stepped on the path of betrayal, who prepared an armed insurrection, who took the path of blackmail and terrorist methods, will suffer inevitable punishment, will answer both to the law and to our people.” As is often the case with his rhetoric, Putin pointed to history to justify his actions. Referring to the 1917 Russian Revolution, he claimed, “[i]ntrigues, spats and politicking behind the army and people’s back ended in an enormous collapse, the destruction of the army and the fall of the state, the loss of huge territories, and in the end, the tragedy of civil war….We won’t let that happen again.”
Although most of the Wagner Group’s moves were unopposed, there were some hostilities. For instance, helicopters and other Russian forces attacked the Wagner Group convoy as it headed toward Moscow, an operation that Prigozhin claimed was ordered by Gerasimov. Reportedly, helicopters and (perhaps) an airborne command post were downed, and more than a dozen Russian soldiers and airmen died. And in Voronezh, a fuel depot exploded, leading Prigozhin to charge that Russian forces were attacking civilian targets. The military and law enforcement agencies took up defensive positions in and around Moscow, and obstacles were erected on the approaches to the city.
Then, as quickly as it had begun, the rebellion was over (ISW, 25 June). Late Saturday, June 24, the Kremlin announced that Belarusian President Alexander Lukashenko had brokered a deal with Prigozhin. He would go to Belarus, charges against him would be dropped, no Wagner Group troops would face criminal changes, and those who did not participate in the rebellion could sign contracts with the Russian Ministry of Defense. Prigozhin released an audio message in which he claimed his “march for justice” had been successful and directed his forces to return to their training grounds to keep the situation from “turning bloody.” Further specifics of the deal, such as the timeline, are currently unavailable, although Wagner Group forces have withdrawn from Rostov-on-Don and Chechen forces that had deployed to the region to deal with the Wagner Group also withdrew.
This post examines the legal status of the events that unfolded over roughly 24 hours on Saturday. Building on an earlier Articles of War post, I conclude that they did not trigger a non-international armed conflict (NIAC) between Russia and the Wagner Group, alongside the international armed conflict between Russia and Ukraine that has been underway since 2014.
Non-International Armed Conflict
Obviously, the confrontation between the Wagner Group and government forces was not part of Russia’s ongoing international armed conflict with Ukraine. Ukraine exercises no control over the group’s actions, which it has been fighting almost since the commencement of the most recent phase of the conflict that began in February 2022.
Accordingly, the question as to the legal status of the incident turns on whether it qualified as a NIAC or was merely an “internal disturbance,” such as a “riot or isolated and sporadic act of violence,” which does not qualify as armed conflict (see Additional Protocol II, art. 1(2), reflecting customary law on this issue; DoD Law of War Manual, § 3.4.2.2). As the International Criminal Tribunal for the former Yugoslavia (ICTY) observed in Tadić, a NIAC must be distinguished from “banditry, unorganized and short-lived insurrections, or terrorist activities” (¶ 562). It is a distinction that finds roots in the 1952 Commentary to the Geneva Conventions (GC I Commentary at 50).
In Tadić, the ICTY described NIACs as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Decision on Defense Motion, ¶ 70) (emphasis added); see also DoD Law of War Manual, § 3.4.2.2). Other international tribunals have adopted that definition, and it appears in the Statute of the International Criminal Court (e.g., ICC Statute, art. 8(2)(f); ICTR, Akayesu; SCSL, Fofana, decision on appeal regarding jurisdiction). Additional Protocol II to the Geneva Conventions, which deals with certain NIACs for Parties to the instrument (including Russia), likewise refers to conflict between a State “and dissident armed forces or other organized armed groups” (art. 1(1)). Based on these and many other sources, it is clear that two cumulative criteria determine whether a conflict is non-international in character: 1) the degree of organization of the group fighting the State (or another non-State group) and 2) the intensity of the violence.
Organization
As noted, a NIAC can occur between a State and a “dissident armed force” or “other armed group” or between organized armed groups (OAG). Whether the Wagner Group qualifies as part of the Russian armed forces and is, therefore, a “dissident” armed force is an unsettled question (see Maddocks and Williams here, here, and here). However, for our purposes, that issue is irrelevant; both types of groups are subject to the “organization” criterion.
The ICTY noted in Limaj that “some degree of organisation by the parties will suffice to establish the existence of an armed conflict” (¶ 89; see also Akayesu, ICTR, ¶ 620). The Tribunal offered indicators of organization in its Haradinaj judgment:
the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords (¶ 60; see also ICC, Lubanga, ¶ 537).
The Wagner Group clearly is a well-organized entity. It has a unified command, and its forces operate in a coordinated manner. Indeed, in terms of organization, it resembles a standard military unit.
One aspect of the organization criterion occasionally causes confusion. According to Article 1(1) of Additional Protocol II, an OAG must be able to “implement” the Protocol. The requirement is understood as an ability to comply with and enforce international humanitarian law (IHL), typically through an internal disciplinary system (ICRC Commentary, ¶ 4470). As I have explained elsewhere, it is reasonable to characterize this condition as applying to all NIACs (see, e.g., ICTY, Boškoski, ¶ 205), not just Additional Protocol II NIACs (see discussion below).
As has been well-recorded in Articles of War and elsewhere, the Wagner Group has engaged in appalling IHL violations on a systematic basis (see, e.g., here and here). However, there is no requirement for an OAG to enforce IHL before a situation qualifies as a NIAC, only that it can do so. The Wagner Group enforces strict military discipline, albeit a discipline based on a “sense of fear of punishment” (as in shooting those who surrender or retreat). Brutal as its discipline is, the group satisfies the “ability to implement” condition.
Intensity
The more challenging question is whether the situation satisfied the intensity criterion. This criterion has two elements: the extent (scale and scope) of the hostilities and their duration (often referred to together as the intensity criterion).
Various tribunals and non-binding guidance have dealt with the first. For instance, in its 2020 Commentary on the Third Geneva Convention, the ICRC observed, “the requisite degree of intensity may be met when hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces” (¶ 465). The International Criminal Court similarly pointed to “the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, [and] the mobilisation and the distribution of weapons among both parties to the conflict” as indicia in Lubanga (¶ 538). Earlier, the ICTY had offered a range of oft-cited “indicative factors” in Boškoski:
The seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements (¶ 177; see also ICTY, Mrkšić, ¶ 407; Dordević, ¶1526).
There was no widespread, intense fighting between the Wagner Group and government forces. However, the Wagner Group did operate freely in large swaths of territory, including a major city. It also effectively neutralized the Russian forces in that area (or at least rendered them passive). A large force marched on Moscow with heavy equipment, and the Russian military engaged it militarily. And Russian law enforcement authorities lacked the capability to take on the Wagner Group.
Thus, there are factors cutting both ways. But with only about a dozen casualties and limited destruction of equipment, it is difficult to label the violence as “intense.” In my opinion, the Wagner Group’s actions presaged violence of sufficient intensity, but because the group did not engage Russian forces except in skirmishes along the road to Moscow, the intensity threshold was not reached. Near bloodless coups d’état do not qualify as armed conflict.
Also problematic is the matter of duration. As noted in Tadić and reflected in the ICC Statute, a non-international armed conflict involves “protracted armed violence” (see also International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties, art. 2(b)). Isolated and sporadic violence does not suffice. The question is, “How long is long enough?”
In its 1997 Arabella decision, the Inter-American Commission on Human Rights found that a 30-hour attack by 42 armed persons on a military barracks in Buenos Ares, with three dozen deaths, qualified as a NIAC (¶ 136). The decision has been criticized, and rightly so (Sivakumaran at 169). Indeed, as discussed above, the Tadić judgment and the ICRC’s original Commentary to the Geneva Conventions excluded insurrections that were “unorganized and short-lived.” For example, the 2016 attempted coup by dissident armed forces in Turkey involved advanced weaponry and resulted in hundreds of deaths and thousands of injuries but lasted less than 24 hours. Although satisfying the organization and intensity criteria, it was generally not characterized as a NIAC because it ended quickly. As Yoram Dinstein has suggested, the duration requirement “cannot plummet down to just a few hours or even a couple of days . . . evanescent violence by mutinous troops does not pass the test of a NIAC” (p. 42-43).
But one must be cautious about according too much weight to the factor of duration. The ICRC has observed in its Commentary on Common Article 3 that “depending on the circumstances, hostilities of only a brief duration may still reach the intensity level of a NIAC if, in a particular case, there are other indicators of hostilities of a sufficient intensity to require and justify such an assessment” (GC III Commentary, ¶474). Earlier, the ICTY had noted, “The criterion of protracted armed violence has therefore been interpreted in practice, including by the Tadić Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration” (Haradinaj, ¶ 49). Similarly, the International Law Association’s Report on the Meaning of Armed Conflict concluded that “The two concepts, intensity and protraction, are linked and a lesser level of duration may satisfy the criterion if the intensity level is high.” As the report points out, “intensity is the more important criterion” (p. 30). But duration nevertheless matters. And this incident lasted but a day.
Considering that significant violence did not occur and that the Wagner Group terminated its operations in a very short period, the incident is best characterized as falling short of the non-international armed conflict threshold.
Why it Matters: The Law Governing NIACs
When internal violence does not rise to the level of an armed conflict, domestic law (especially criminal law), domestic emergency regulations, and applicable human rights law shape the government’s response. But if the situation qualifies as a NIAC, IHL applies alongside, and sometimes in lieu of, domestic and human rights law. That is why the status of the incident matters.
Had the incident qualified as a NIAC, Common Article 3 of the 1949 Geneva Conventions, which also reflects customary IHL, would have applied. That provision sets forth specific prohibitions, limitations, and obligations governing the conduct of the parties to a NIAC, including OAGs. Furthermore, since 1989, Russia has been a Party to Additional Protocol II to the Geneva Conventions (unlike the United States), which sets forth more robust and detailed rules. The instrument only applies, according to Article 1(1), to NIACs in which OAGs “exercise such control over a part of [the State’s] territory as to enable them to carry out sustained and concerted military operations.” But had the Wagner Group exerted such a degree of control over territory that it could be said it was “in the group’s hands,” the rules set forth in Additional Protocol II would have bound both Russian and the Wagner Group’s forces. For instance, the treaty’s provisions extending IHL protections beyond those found in Common Article 3 and customary law, such as special protection for installations containing dangerous forces, would have applied.
Most importantly, customary IHL rules governing non-international armed conflict would have come into play (see San Remo NIAC Manual and the ICRC’s Customary IHL study). There is broad agreement that they include, inter alia, prohibitions on attacking civilians or civilian objects, using the Red Cross or other distinctive emblems while engaging in an attack, conducting disproportionate attacks, declaring no quarter, taking hostages, using protected persons or objects to shield, pillage, offering rewards for persons dead or alive, and collective punishment (see DoD Law of War Manual, §§ 17.6 and 17.7).
Had a NIAC been underway, the critical operational significance is that status-based targeting against OAG members would have been permissible. In other words, Russian forces would have been entitled to attack members of the Wagner Group regardless of whether they represented an immediate threat to life (or risk of grievous bodily harm) to oneself or others.
But even in situations amounting to a NIAC, members of an OAG like the Wagner Group enjoy no immunity from domestic prosecution for participation in the conflict, including attacking government forces. Similarly, there is no prisoner of war status during a NIAC, although members of OAGs enjoy some limited IHL protections, such as Common Article 3’s prohibition of “outrages upon personal dignity, in particular, humiliating and degrading treatment” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Conclusion
In my estimation, the actions of Yevgeny Prigozhin and his Wagner Group did not spark a non-international armed conflict with Russia. As a result, the actions of the group’s members, including Prigozhin, are subject to domestic criminal law (although they appear to have been granted immunity) but not to the IHL rules cited earlier.
That said, had more than skirmishes broken out between the Wagner Group and Russian forces, especially considering the scale and scope of the group’s operations, the requirements for a NIAC would have been satisfied. As the incident winds down, a serious risk of further confrontations, and therefore the outbreak of a NIAC, remains.
***
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.
Photo credit: Fargoh via Wikimedia Commons
