Russia and Eastern Europe

What Laws Constrain This Russian Private Military Company?

By Zarko Perovic
Tuesday, March 23, 2021, 1:53 PM

On March 11, a Syrian national filed a complaint in Moscow against a company called the Wagner Group, for the torture, killing, and mutilation of his brother by Wagner employees. This complaint is part of a second attempt to criminally prosecute members of this elusive group for this case. The Russian newspaper Novaya Gazeta submitted a complaint regarding the case in 2019, but no action was taken.

The Wagner Group, a Russian private military company, has played a strategically important role in countries such as Syria, Ukraine and Libya—and it’s found itself repeatedly at the receiving end of U.S. sanctions. Wagner has helped Bashar al-Assad’s forces in the Syrian civil war and participated in the Russian takeover of Crimea. But are the group’s actions legal? Though Wagner’s activities are nominally regulated by both international law and the domestic laws of the countries where the group is present, these laws put relatively few constraints on Wagner’s operations.

Background

The U.N. Working Group on the Use of Mercenaries defines private military and security companies (PMSCs) as corporate entities that “provide[] on a compensatory basis military and/or security services by physical persons and/or legal entities.” Typically, PMSCs provide a wide variety of military or security services for either governments or corporations—short of participating in combat—and do not receive direction from their home governments on how to operate or receive any assistance. However, Wagner is different from most PMSCs in that Wagner employees often engage in combat operations. Additionally, the company has a close relationship with the Russian government, which actively helps Wagner secure its contracts. 

The Washington Post suggests that Wagner may have been founded in 2014 by former Russian security contractor Dimitry Utkin. However, information to confirm that Utkin was the founder is lacking. But at some point over the past few years, Wagner reportedly came under the ownership of Yevgeny Prigozhin—a Russian entrepreneur with close links to the Kremlin who might be familiar to Lawfare readers as the owner of the Internet Research Agency troll farm. Wagner employees were among the “little green men” who participated in the Russian takeover of Crimea in 2014 and assisted Russian separatists in Eastern Ukraine attempting to secede from the country. The group also became involved in Syria, and New York Times and Foreign Policy reported that U.S.-backed Kurdish fighters killed somewhere around 200 to 600 Wagner employees in the city of Deir al-Zour in February 2018. 

In September 2019, Wagner sent 200 of its employees to Mozambique but reportedly withdrew from the country after seven of its contractors were killed there. Beginning in 2020, Wagner employees appear to have been supporting Khalifa Haftar’s forces in Libya with alleged financing from the United Arab Emirates. Although not fully confirmed, some reports suggest that the group’s employees manned anti-tank positions for Armenian forces during the recent conflict between Armenia and Azerbaijan in Nagorno-Karabakh. There are also reports that Wagner employees participated in combat, trained, and provided other security services in Azerbaijan, the Central African Republic, Libya, Madagascar, Mozambique, Rwanda, Sudan, Syria and Ukraine.

Due to the group’s involvement in conflicts in these countries, Wagner has been repeatedly targeted for sanctions by the U.S. government. In 2016, the U.S. Treasury Department placed sanctions on Prigozhin via executive order for his “extensive business dealings with the Russian Ministry of Defense” and for building bases to support Russian military actions in Ukraine. The Treasury Department has placed additional sanctions on Wagner since then. Most recently in July 2020, the Treasury Department updated previous sanctions against Wagner for its entities’ activities in Sudan.

Legal Context

Wagner is subject to a range of laws and conventions related to mercenarism. The relevant legal regime includes national laws in the different countries regulating mercenaries; the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (ICRUFTM); the Additional Protocol (I) to the Geneva Conventions; and the Organization of African Unity Convention for the Elimination of Mercenarism in Africa (OAU CEM). 

The below table lists the status of these laws and conventions in countries where Wagner operates (see also the accompanying map). All the listed countries except Azerbaijan have ratified Additional Protocol I of the Geneva Convention.



Law Source

Country/Countries

ICRUFTM ratified and enacted national law regulating mercenaries

Azerbaijan, Ukraine

Enacted national law regulating mercenaries

Mozambique

ICRUFTM ratified + OAU CEM ratified

Libya

ICRUFTM ratified

Syria

OAU CEM ratified

Rwanda, Sudan

None

Central African Republic, Madagascar

 

 

 

 

Key. W: where the Wagner Group operates or has operated; blue: where the ICRUFTM has been ratified; light green: where the OAU CEM has been ratified; dark green: where the ICRUFTM and the OAU CEM have been ratified.

These laws and conventions are quite similar, although their exact wording varies, and they typically regulate two things. First, they prohibit individuals from participating in conflicts as mercenaries. Second, they criminalize individuals, organizations, or states engaging with mercenaries such as by recruiting, financing, or training them.

These laws and conventions attempt to regulate companies like Wagner by prohibiting individuals from providing security and military services in certain ways—generally, participating in hostilities, or recruiting, financing, and training mercenaries. Most provisions have a similar definition of mercenaries, though there are some small distinctions among them.

International Conventions

The ICRUFTM has a five-factor test to determine who is a mercenary. Under the convention, a mercenary (a) is specifically recruited locally or abroad in order to fight in an armed conflict; (b) is motivated to take part in hostilities for private gain and is promised material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; (c) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) is not a member of the armed forces of a party to the conflict; and (e) has not been sent by a state that is not a party to the conflict on official duty as a member of its armed forces. Someone who fulfills these criteria and “participates directly in hostilities or in a concerted act of violence” is in violation of the convention. 

The convention leaves it to states to punish violators of the convention. Under Article 5, states parties “shall make the offences set forth in the present Convention punishable by appropriate penalties which take into account the grave nature of those offences.” So far only 37 countries have ratified the convention: nine in Latin America and the Caribbean; eight of the former Soviet Republics; eight in West Africa; and a few others, including Italy, Saudi Arabia and Syria. 

The OAU CEM has a test almost identical to that of the ICRUFTM, but the conventions vary on a few points. In addition to the five factors listed in the ICRUFTM, the OAU CEM narrows the definition of a mercenary to “any person who … does in fact take a direct part in the hostilities.” However, it expands the second factor, compensation, by requiring someone to be motivated simply by private gain to be considered a mercenary—not just gain that is substantially in excess of that promised to similar combatants. If someone fulfills all six OAU CEM factors, then this individual is considered to have committed “a crime against peace and security in Africa.” According to Article 7 of the convention, states are to make an Article 1 offense punishable by the “severest penalties under [their] laws, including capital punishment,” but the convention does not prescribe or institute any punishments itself. 

Article 47 of Additional Protocol I of the Geneva Convention, like the OAU CEM, uses a six-factor test to define who constitutes a mercenary. Those who qualify as mercenaries are not eligible for combatant or prisoner of war status. Like the OAU CEM, Additional Protocol I requires an individual to take direct part in hostilities to be considered a mercenary. However, in defining what constitutes a mercenary, Additional Protocol I uses a definition similar to the ICRUFTM’s regarding compensation, requiring someone to be compensated substantially in excess of that promised or paid to combatants of similar rank and functions.

National Laws

Only three countries where Wagner operates have created laws criminalizing mercenarism: Azerbaijan, Mozambique and Ukraine. Ukraine and Azerbaijan’s mercenary laws follow the ICRUFTM and OAU CEM definitions quite closely, while Mozambique enacted its own unique definition. 

Ukraine’s definition of a mercenary, under Article 447 of the Ukrainian criminal code, uses a five-factor test similar to the ICRUFTM test. However, Ukraine changes the first factor regarding recruitment and expands it. Instead of covering only “fighting in an armed conflict,” the first factor extends the mercenary definition to people who participate in “military or violent actions aimed at forcible change or overthrow of the constitutional order, seizure of state power, or obstruction of the activity of state authorities on the territory of Ukraine or the territory of other states or violation of territorial integrity.” Regarding the second factor, participating in conflict for private gain, the Ukrainian criminal code follows the OAU CEM in requiring that a mercenary work only for the purpose of obtaining “any personal gain” rather than for compensation that substantially exceeds the gain of combatants of similar rank and function. An individual who fulfills this definition and participates “in an armed conflict, military or violent acts” can be punished with imprisonment of five to 10 years. 

In contrast to Ukraine, the criminal code of Azerbaijan applies a three-factor test that is similar to the OAU CEM test but removes the first factor (recruitment) and the fourth factor (no membership in armed forces of a party to the conflict). Moreover, Article 114 of the Azerbaijan criminal code follows the OUA CEM and Ukraine in regards to the second factor (compensation) by requiring only that someone works “with a view of reception of material compensation.” If an individual falls under this definition and participates in a “confrontation or military operations,” this individual “shall be punished by imprisonment for … three up to eight years.”

Mozambique’s criminal code has its own unique two-factor test to define mercenaries. Under Article 163 of the code, individuals commit the crime of mercenarism if they try to overthrow a legitimately constituted foreign government by armed violence and do so with an armed force composed entirely or in part of foreigners. Offenders are to be punished with 16 to 20 years of imprisonment.

While Russia itself criminalized mercenarism under Article 359 of its criminal code, it seems unlikely that the country would ever use such a law against the group due to Wagner’s close relationship with Russia’s Ministry of Defense. Russia’s definition of a mercenary is quite similar to Azerbaijan’s in that Russia’s test also removes the first factor (recruitment) and the fourth factor (membership in the armed forces of a party to the conflict). If someone fulfills the definition and participates in “an armed conflict or hostilities,” this crime will be punishable by a “deprivation of liberty for a term of three to seven years.” 

Prohibitions on Engaging With Mercenaries

Most of these laws and conventions also regulate engaging with mercenaries. Indeed, except for Additional Protocol I, they typically also criminalize recruiting, financing and training mercenaries.

Article 2 of the ICRUFTM states that “[a]ny person who recruits, uses, finances or trains mercenaries” is in violation of the convention.

While the OAU CEM criminalizes recruiting, financing, or training mercenaries, it does so only within the context of undermining the function of a state. Article 1.2 states that mercenarism is committed only when recruiting, financing, or training is done with “the aim of opposing by armed violence a process of self-determination stability or the territorial integrity of another State.” Moreover, Article 1.2 also defines recruiting, financing, and training much more expansively than the ICRUFTM does, stating that, while attempting to oppose a process of self-determination and territorial integrity, an individual, group, or state:

a) Shelters, organises, finances, assists, equips, trains, promotes, supports or in any manner employs bands of mercenaries.

b) Enlists, enrols or tries to enrol in the said bands. 

c) Allows the activities mentioned in paragraph (a) to be carried out in any territory under its jurisdiction or in any place under its control or affords facilities for transit, transport or other operations of the above-mentioned forces.

Article 447 of the Ukrainian criminal code, like the OAU CEM, criminalizes the recruiting, financing, material support, or training of mercenaries if such actions are aimed at “violently changing, or overthrowing the constitutional order, seizing state power, impeding activities of the state authorities, or violating territorial integrity.” Violations of this law are punished with imprisonment from five to 10 years. Azerbaijan, meanwhile, follows the ICRUFTM definition regarding engaging with mercenaries but also criminalizes “other material maintenance of mercenaries” under Article 114.1 of the Azerbaijan criminal code. Offenders are to be punished with imprisonment of four to eight years. Finally, Mozambique follows the OAU CEM’s more expansive definition of engaging with mercenaries. Violators of the Mozambique law include “all those who voluntarily recruit, organize, finance, supply, equip, train, and transport individuals … as well as those who enlist in these forces.” This crime is punished with imprisonment of 16 to 20 years.

Other Laws

Of course, in addition to laws and conventions regulating the use of mercenaries, Wagner Group members could also be subject to any national laws such as those that punish killing, torture and terrorism if employees committed these actions. This is not entirely hypothetical: In 2017, according to Novaya Gazeta [warning: graphic images], Wagner employees allegedly beat Muhammad “Hamdi Bouta” Taha Ismail al-Abdullah to death by hitting him repeatedly with a sledgehammer and then decapitating him. Bouta was a Syrian national who was forcefully conscripted by the Syrian government in March 2017, deserted the army while he was in Homs, and was killed by Wagner Group members at the Shaer gas field, which had recently been liberated from the Islamic State. Bouta’s brother filed a complaint based on Article 12 of Russia’s criminal code on March 11, which criminalizes actions by Russian citizens that work against the “interests protected by the Code” and against servicemen of Russian military units that commit crimes abroad that violate the Russian criminal code. In addition, reports by Human Rights Watch and Voice of America News indicate that landmines left by Wagner employees in residential neighborhoods of Tripoli, Libya, have killed 52 people since 2020.

If Wagner Group employees were to commit serious violations of international humanitarian law on the territory of any states parties to the Rome Statute or against the citizens of any states parties, the employees responsible for such an act could be prosecuted by the International Criminal Court for violating Article 8 of the Rome Statute, which punishes grave breaches of the Geneva Conventions. Out of all the countries where Wagner has operated, however, only the Central African Republic and Madagascar have ratified the Rome Statute. Ukraine has also accepted the jurisdiction of the Rome Statute on its territory from 2014 onward. 

Applying the Law 

Despite the many laws codified to regulate mercenaries, Wagner’s operations seem to face few meaningful legal constraints. Prosecutions of mercenaries by state authorities are rarely attempted or carried out. 

Might Wagner face any legal consequences for its actions? It’s not clear whether countries that have ratified conventions like the ICRUFTM could prosecute Wagner Group members if they have not made corresponding national laws, due to the conventions’ structure. For that reason, the greatest legal constraints on Wagner’s activities may be in three countries where the Wagner Group has operated that have made national law regarding mercenaries: Ukraine, Mozambique and Azerbaijan. Yet it’s unlikely that any of these three states could succeed in prosecuting Wagner Group members under their national laws. 

Ukraine is the country that has come the closest to prosecuting the Wagner Group using its mercenary law. In August 2020, the Ukrainian prosecutor general requested that Belarus extradite 28 alleged mercenaries, some of whom were Wagner employees, for their activities. The Ukrainian prosecutor general alleges that this group participated in the armed conflict in eastern Ukraine and sought to prosecute them under the country’s terrorism law, Article 258-3 of the Ukrainian criminal code. But under Article 447 of Ukraine’s criminal law, Wagner members would not be considered or prosecuted as mercenaries based on Ukraine’s five-factor test. For someone to be considered a mercenary, the test requires that someone:

  1. Be recruited locally or abroad to take part in armed conflict, military or violent actions aimed at forcible change or overthrow of the constitutional order, seizure of state power, or obstruction of the activity of state authorities on the territory of Ukraine or the territory of other states or violation of territorial integrity. 
  2. Participate for the purpose of obtaining any personal gain.
  3. Not be a citizen (subject) of a party to the conflict and not be a person who permanently legally resides in the territory controlled by a party to the conflict.
  4. Not be a member of the armed forces of the state on the territory of which such actions are carried out.
  5. Not be sent by a state that is not a party to the conflict to perform official duties as a member of its armed forces.

Arguably, Wagner Group members fulfill factors 1, 2, and 4, given that Wagner employees by assisting rebels in Eastern Ukraine have obstructed the activity of Ukrainian state authorities, received compensation for their work, and are not members of the Ukrainian armed forces. 

But factors 3 and 5 would likely not be fulfilled, as Russia would most likely be considered a party to the conflict in Ukraine. Ukraine’s position has been that Russia is in fact a party to the conflict and the International Criminal Court has stated that there exists an armed conflict between Russia and Ukraine. By all accounts it appears that Wagner’s forces in Eastern Ukraine were Russian citizens. And Wagner employees would also likely not fulfill the fifth factor, since, according to a Center for Strategic & International Studies report, Russia is a party to the conflict and Utkin “was subordinated both to the GRU [Russia’s military intelligence agency] and to the Russian military command.” As a result, given that Russia is a party to the conflict and Russian citizens participated, Wagner employees in Ukraine do not fall under Ukraine’s definition of mercenaries. 

Mozambique likewise could not use its national law regulating mercenaries to target the Wagner Group for its activities in Mozambique. As described above, the first factor of the Mozambican mercenarism law is outwardly focused: It requires that a mercenary attempt to overthrow a legitimately constituted foreign government by armed violence and therefore does not apply to any Wagner actions in Mozambique. In theory, Mozambique, as well as Azerbaijan and Ukraine, could prosecute the Wagner Group for their mercenary activities in other countries like Libya. However, neither Mozambique nor any other state has currently shown any interest in doing so. Moreover, given that Wagner employees went to Mozambique to help the government fight against Islamic State-linked militants in the country’s Cabo Delgado province, it does not seem likely that the government would have any interest in prosecuting the group.

While Azerbaijan is currently attempting to prosecute Armenian mercenaries who fought against Azeri troops in Nagorno-Karabakh, the country has not taken steps to prosecute Wagner Group members who also allegedly participated in the conflict—and if prosecutors tried, it seems unlikely they would succeed. Azerbaijan’s four-factors test requires mercenaries to be (a) working with a view of material compensation, (b) not citizens of Azerbaijan or living constantly on its territory, (c) participating in a confrontation or military operations, and (d) not directed for execution of official duties (Azerbaijani criminal code, Article 114). The main question is whether any Wagner Group employees in the country were executing official duties: If Wagner members were receiving direction from either the government of Armenia or the independent government of Nagorno-Karabakh, then they would not be considered mercenaries. However, if the Wagner employees were instead receiving most of their direction from the Russian government, which was not a party to the conflict, then these employees would be considered mercenaries and could be prosecuted for mercenarism under Azerbaijani law. 

Even if they could be considered mercenaries, however, it is unlikely that Azerbaijan would attempt to prosecute such individuals. Given Russia’s historic role as the chief negotiator between Armenia and Azerbaijan and its capacity to tip the conflict in a certain direction if it were so inclined, Azerbaijan would be unlikely to pursue these cases.

As for the complaint filed by Hamdi Bouta’s brother within Russia under Article 12 of the Russian criminal code, the odds of success appear low. Given that Novaya Gazeta’s complaint for the same case was ignored in 2019, unless the complaint was changed drastically, it is unclear why the Russian Investigative Committee would change its mind. 

Could a more expansive legal regime change how companies like the Wagner Group operate? Many legal scholars argue that laws regulating mercenaries are too narrowly written, suggesting that broader statutes could increase prosecutions for such activities. In this view, the definitions of mercenaries used by various laws and conventions are overly narrow, which allows most mercenaries to avoid being classified as such. However, scholars have also noted that mercenaries operate in weak states, which makes enforcement and prosecutions by host governments difficult. 

Moreover, even if countries implement more expansive prohibitions against PMSCs like Wagner, it could be argued that there is a risk that these kinds of regulations will—instead of discouraging companies like Wagner—discourage PMSCs that legitimately try to follow the rule of law when providing security services. Jose Gomez del Prado has argued that members of the U.N. Western Group have rejected proposed resolutions by Cuba to regulate PMSCs in order to protect legitimate business activities of these companies. Indeed, the United States and the United Kingdom believe that there are a number of PMSCs that provide important security services and that, while there are problems, the industry is best regulated through self-enforced industry standards like the Montreux Document.

At the same time, a more expansive legal regime could create more stability in countries affected by conflict. The U.N. Working Group on the Use of Mercenaries has been a regular advocate for greater regulation of the PMSC industry and made a draft PMSC convention that was tabled in 2009. Saeed Mokbil, the chairperson-rapporteur for the working group, has argued that the international and domestic legal regulation of PMSCS could promote the rule of law. He has argued that through regulations regarding oversight, registration, licensing, and vetting, there could be a lower risk of destabilization and human rights violations in countries using PMSCs.

In the meantime, it seems clear that the Wagner Group will continue to operate. Companies like Wagner are able to quickly deploy soldiers in combat upon receiving payment and disappear overnight when necessary. Such companies are increasingly in demand—and they are reshaping how conflicts operate around the world.