David Mason
Of all the things the Russian Government has done with the Wagner Group, this latest report must be the most unambiguous acknowledgement that there is no real legal separation between the two. According to the report, Russian convicts are being offered freedom and financial rewards if they agree to fight in Ukraine with the Wagner Group. Apparently, Wagner Group’s representatives have travelled to Russian prisons and urged inmates to ‘defend the motherland.’[1]
In effect, this means Wagner Group representatives are recruiting into their organisation with the explicit knowledge of the Russian authorities. How else could they gain access to Russian prisons and then arrange to have inmates transferred to Ukraine front line? And what do they do once they get to the front line? According to just one report, Wagner Group members have been committing war crimes, including murder and torture of civilians.[2]
When recruited, Wagner Group members appear to be issued Russian military uniforms and AK-15s, the Spetsnaz’s newly issued assault rifle.[3] In so doing, they seem to be distinguishing themselves as members of an armed group, or even as members of the Russian military participating in the international armed conflict in Ukraine.[4]
Why is this important? It is important because it leads to the conclusion that the Wagner Group is part of the armed forces of the Russian state, engaged in an international armed conflict in Ukraine.[5] Let me explain why I have come to this conclusion, and what this conclusion means for Russia, the Wagner Group and Ukraine.
In this short paper, I conclude that the relationship of the Wagner Group to the Russian state means that members of the Group are part of the Russian military, and when captured by Ukrainian forces, should be treated as Prisoners of War (POWs), consistent with the Geneva Conventions. To underpin this conclusion, I will outline some of the legal principles that govern any assessment of the relationship that would indicate the Russian Government’s responsibility for Wagner Group’s actions and, significantly in the context of the Ukrainian conflict, what that means for the Russian state and those members of the Wagner Group who are captured by Ukrainian armed forces.
There are two aspects to the argument that Wagner Group members should be treated as POWs rather than as ‘mercenaries’, the appellation so often given, incorrectly at law in my view, to these personnel. The first aspect is that the state of Russia is responsible for the actions of Wagner Group members. Russia is responsible for them based on an international law doctrine called ‘State Responsibility.’
State responsibility means that a state is responsible for the actions of its agents. It means that if a state, including an agent of the state such as a member of its armed forces, acts in violation of international law, that violation can be attributed to that state and the state is responsible for the violation.[6]
And there is more. A state can be responsible for the wrongful or illegal or unlawful actions of a group, or so-called partner forces, where the partner force is ‘acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’[7]
There is evidence the Wagner Group, whether characterised as a state agent or a partner force, is under the effective control of the Russian Government. This conclusion leads to the possibility of Ukraine,[8] or for example a referral from the United Nations General Assembly,[9] bringing to the International Court of Justice a unilateral application (given that Russia is unlikely to consent) seeking two things. First, a declaration or advisory opinion that the Wagner Group is an agent of Russia or a partner force under the effective control of Russia.
Second, Ukraine could seek reparations from Russia for the harm it has done its citizens.[10]
This approach would have the benefits of clarifying the jurisprudence around ‘agents of the state’ like the Wagner Group, clearly identifying Russia as the ‘owner’ of the Wagner Group, and at least having a decision that awarded reparations to Ukraine for distribution to those citizens harmed.
The second aspect that Ukraine could consider is seeking individual criminal liability through the international law principle of ‘command responsibility.’ This principle has three elements, and these are set out clearly in the Australian Law of Armed Conflict Manual:[11]
…a commander will be held accountable for ordering a subordinate to commit a war crime or for failing to intervene if the commander knows that a breach is occurring. A commander is also accountable if the commander fails to prevent a breach of the LOAC (Laws of Armed Conflict) of which the commander should have known.
So, it is not controversial to state that a commander can be held directly responsible for ordering his or her subordinates or those under command to carry out unlawful acts like those reported above.
The second principle goes to a commander’s failure to act, either to prevent or report, investigate, and punish those under their command for unlawful acts. This second principle is set out in Articles 87(1) and (3) of Additional Protocol I to the Geneva Conventions:[12]
The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
(3) The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
These elements are also set out in Article 28 of the Rome Statute of the International Criminal Court:[13]
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
What is important is the idea of a person who knew or should have known (the mens rea) and also having ‘effective control’ over the person alleged to have committed the unlawful act.
Since World War Two, decisions of international ad hoc tribunals have made clear the test of ‘effective control.’ For command responsibility to apply, a formal chain of command is not required (though if this could be proven, it would make any prosecution much easier); it’s all about ‘effective control’, and it can apply to civilians as well as military commanders. [14]
The International Criminal Tribunal for Yugoslavia in Celebici concluded: [15]
While there are the clear and formal chains of command that characterise modern and well-disciplined armies, this criteria may appear simple to apply. However, modern conflicts are not always fought on this basis and by such forces. Therefore … the Appeals chamber in Celebici based itself on a test of ‘effective control’, defined as ‘a material ability to prevent or punish criminal conduct’.
The ICC agrees with this test.[16]
In other words, the jurisprudence on this matter is settled. Even if there are no ‘formal’ but rather informal chains of command, the requisite test is whether the superiors or commanders could prevent or punish criminal conduct.
So what does that mean for Wagner Group members who have been alleged to have committed war crimes? According to the Guardian:
Two alleged Wagner Group fighters from Belarus have been accused of murdering civilians near Kyiv, making them the first international mercenaries to face war crimes charges in Ukraine.
Ukrainian prosecutors late on Tuesday released the names and photographs of eight men wanted for alleged war crimes – including murder and torture – in the village of Motyzhyn. Several are believed to have fought in Syria.
They say five are Russian soldiers, one is a Russian mercenary with the Wagner Group and the final two are Belarusian mercenaries.[17]
I will not address why these men are not mercenaries as the Guardian and many others describe them. That is a separate article in which I will canvass the idea that Article 47 of Additional Protocol 1 is entirely otiose – if indeed it ever was relevant. It is a trope used by many academics and members of the press to label some who take part in armed conflict as malign, bad or illegitimate actors rather than a correct legal label.
Now let me explain why this is important. It is important because while it is possible to bring charges against members of the Wagner Group for alleged war crimes, it is also important to bring those within the Russian chain of command, including the Russian Government, to account. That is, those who pay, direct and command the Wagner Group and who have encouraged their actions and have done nothing to stop these actions which are, prima facie, war crimes.
So, what would I recommend to the Ukrainian Government? Treat anyone from the Wagner Group who you capture, in accordance with the Geneva Conventions and Additional Protocol 1 of the Geneva Conventions, as a Prisoner of War (POW), that is, as a combatant member of the armed forces of Russia. That way, you can reach out consistent with the principles of ‘command responsibility’ to those who have enabled them within the Russian regime.
If a Wagner Group member insists they are not a member of the Russian armed forces (though this would be a curious position to take), it would be possible to bring evidence to the contrary and treat them to the higher POW standard in any event.
The major issue that must be exercising the minds of many ICC and other investigators in Ukraine today is collecting evidence of sufficient quality and standard that may be used in any legal proceedings in the International Court of Justice or, for example, in the ICC. No doubt that work is proceeding as it must do.
By recognising the Wagner Group members as POWs the Ukrainian Government may bring an action for reparations for the harm done to individuals in the International Court of Justice based on the international legal principles around state responsibility.
By recognising the Wagner Group members as POWs the Ukrainian Government can seek that the International Criminal Court[18] or another court, deal with the personal criminal liability of those who led and directed Wagner Group members and their operations in Ukraine.
The Ukrainian Government could announce today that Wagner Group members will be classified as POWs, like all members of the Russian armed forces. Treating these members as POWs does not mean that they avoid individual responsibility. Indeed, they may still be dealt with regarding their individual war crimes. But what this approach does do is ensure that Ukraine has the moral and legal high ground. It should keep it by doing what is good and right in law.
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