Editor’s Note: This Q&A is part of a series following the 4th Annual Stockton Center Law of Armed Conflict Conference, Russia-Ukraine: Full-Spectrum Conflict and the Law, held at the U.S. Naval War College in Newport, Rhode Island over December 13-15, 2022 and co-sponsored by the Norwegian Defence University College and the Swedish Defence University. While the conference was held under the Chatham House Rule, several of the expert participants are taking part in a public question and answer series to illuminate some of the pressing issues addressed during the conference sessions that merit further analysis. The first Q&A in this series is available here, the second is available here and the third is available here.
Q. On the issue of the Wagner Group and whether Russia bears State responsibility for its actions, the ICRC and the International Criminal Court both support the “overall control” test, rather than the “effective control” test, for attributing the acts of a non-State group to a State. So, if you accept for the sake of analysis that the lower-threshold “overall control” test is the correct one, would the acts of the Wagner Group be attributable to Russia?
Jenny Maddocks: The Wagner Group, has played a critical role throughout Russia’s operations in Ukraine. First appearing in Crimea in 2014, the private military company (PMC) later participated in the 2015 Debaltseve offensive and acted as Moscow’s enforcers in the Donbas. More recently, the group’s members have taken a leading role in the battle for Bakhmut, using waves of Russian prisoners as “cannon fodder.”
Russia’s use of the Wagner Group to promote its aims in Ukraine raises questions of accountability. It is alleged that like Russia’s conventional forces, members of the PMC have committed numerous violations of the law of armed conflict (LOAC). For example, reporting indicates that Wagner Group fighters played a key role in the massacres at Bucha, caused the deadly attack on a building housing Ukrainian prisoners of war, and brutally executed a former fighter. It is important to consider whether these actions are attributable to Russia, thereby leading to Russia’s State responsibility.
I have considered this issue in previous posts for Articles of War. In those posts, I addressed various grounds on which the Wagner Group’s conduct could be attributed to Russia, including attribution based on the factual relationship between Russia and the PMC. If the fighters responsible for the LOAC violations acted under Russia’s instructions, direction, or control at the relevant time, their conduct is attributable to the State (Article 8 of the International Law Commission’s Draft Articles on State Responsibility (ASR), widely considered to reflect customary international law). Given the enduring relationship between the Russian government and the PMC, the key question is whether Wagner Group fighters acted under Russia’s control. However, the appropriate threshold of control for these purposes has been the subject of considerable debate.
The Appropriate Threshold of Control
When thinking about Russia’s relationship with the Wagner Group, the notion of “control” has various potential meanings. It could apply at the strategic level, meaning that it is necessary to prove only that the Wagner Group conducted missions in furtherance of Russia’s strategic interests. In this scenario, the State’s influence over the PMC’s operations might extend only to high-level planning, with State officials exerting no control over the group’s means and methods of warfare or how individual fighters act on the battlefield.
At the opposite end of the spectrum, Russia might exercise tactical control over the Wagner Group, meaning that State officials have the authority to direct the way in which individual fighters behave during specific operations. If this is the appropriate control threshold for the purposes of attribution, evidence would be required that Russian officials acted in command of Wagner Group fighters at the time they committed the specific acts that potentially violate LOAC.
These different interpretations of control are apparent in the judgments of the International Court of Justice (ICJ) and the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICJ concluded that a narrow test of “effective control” should apply for the purpose of attribution, meaning that evidence is required of the State’s detailed or tactical control over the acts that violate international law (para 396-406). In contrast, when addressing the degree of control a State must exercise over a non-State actor in order to internationalize a conflict, the ICTY advocated for a wider “overall control” test (para 116-145). This is a looser threshold, which considers the broader relationship between the State and the non-State actor.
Although the ICTY was competent to rule only on matters of individual criminal responsibility, not State responsibility, it asserted that the lower threshold of “overall control” should also apply for the purposes of attribution. The International Committee of the Red Cross (ICRC) supports this approach, arguing that the test used to classify a conflict under LOAC should be the same as the test used to attribute private conduct to a state under the law of State responsibility (para 298-306). The International Criminal Court additionally approved the test, but only for the purposes of conflict classification (para 541).
These differing views on the appropriate control threshold for attribution highlight the delicate balance that must be struck when attributing private conduct to a State. In conflict situations, humanitarian concerns call for a less stringent control threshold to ensure that States are held to account when the non-State actors they support violate LOAC. But counter to this is the principle that States should bear responsibility only for conduct that can be truly categorized as their own. Holding States accountable for a wide range of private conduct, with which they might be only marginally involved, could extend States’ responsibility too far. This is a particular concern when considering the conduct of actors such as the Wagner Group, which act with considerable autonomy.
Applying the more authoritative “effective control” test formulated by the ICJ, I have previously concluded that attributing the Wagner Group’s conduct to Russia presents a challenge. This is principally due to a lack of evidence to prove that Russia’s control extended to tactical-level decisions on the battlefield. However, it is pertinent to consider whether the outcome would be different if, instead, the “overall control” standard is the appropriate test.
Did Members of the Wagner Group Act Under Russia’s Overall Control?
As an initial observation, it is worthy of note that the test formulated by the ICTY applies only to organized and hierarchically structured groups (para 120). As the Wagner Group is a military formation that operates under a military command structure, it clearly meets this requirement.
Under the ICTY’s test, conduct on the part of a hierarchically structured group is attributable to a State if that State wields “overall control” over the group, not only through the provision of equipment and financing but also by coordinating or assisting in the planning of its military activity. These factors are assessed in respect of the wider relationship between the entity and the State, rather than by focusing on the specific operations in which the relevant violations occur.
Importantly, there is no requirement for the State to plan or direct the particular private conduct that violates international law. It is sufficient if those acts form part of broader activity on the part of the non-State actor over which the State exerts control. The threshold might therefore be met if a private entity is not strictly subordinated to the State’s authority but, instead, has “autonomous choices of means or tactics” in the conduct of its operations (para 47).
In a recent judgment related to the downing of Flight MH17, the Hague District Court considered whether Russia exercised “overall control” over rebels in the Donbas. Concluding that the test was satisfied, the Court pointed to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted “mutually coordinated military operations.”
It is likely that similar evidence is available regarding Russia’s relationship with the Wagner Group. For instance, close links exist between Wagner’s leader, the oligarch Yevgeny Prigozhin, and senior officials in Moscow, including President Putin. Wagner works closely with Russia’s military intelligence service, the GRU, as illustrated by their shared basing in Molkino and the GRU-issued passports used by Wagner’s members. In addition, the PMC relies on Russia for military equipment, including aviation and artillery assets. And reporting indicates that the Wagner Group sometimes coordinates its military operations with Russia’s conventional forces, such as in the Battle of Severodonetsk.
Regarding Wagner’s operations in Ukraine, it is also relevant that “the controlling State in question [Russia] is an adjacent State with territorial ambitions on the State where the conflict is taking place [Ukraine], and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls” (para 140). This geographical proximity leads to an enhanced ability on Russia’s part to influence the Wagner Group’s actions and, according to the ICTY, means that the “overall control” threshold may be easier to satisfy.
Taking these factors into account, it appears likely that a court considering the matter would conclude that Wagner forces in Ukraine operate under Russia’s “overall control.” Therefore, if this is the appropriate test for the purposes of attribution, all the Wagner Group’s conduct in Ukraine is potentially attributable to Russia. Depending on the available evidence, it is possible that the same conclusion might also be reached regarding Wagner’s operations elsewhere.
Is Overall Control the Appropriate Test?
As noted above, the ICTY formulated the “overall control” test in order to determine whether the conflict at issue was international in character. Thus, the primary purpose of the test relates not to attribution but rather to assessing whether a non-international armed conflict is internationalized via State support to a non-State party to the conflict. Nonetheless, in its judgment, the ICTY criticized the “effective control” test formulated by the ICJ and asserted that the looser threshold of “overall control” should apply for the purposes both of conflict classification and attribution.
Some legal scholars and the ICRC welcomed the ICTY’s judgment, viewing the “overall control” test as a much more effective means of determining when private conduct should be attributable to a State. Yet, in seeking to satisfy humanitarian concerns, the test is potentially over-inclusive. This is because the test’s focus on the wider relationship between the entity and the State is replicated in the effects of attribution. Therefore, if a State exercises “overall control” over a private entity, all the entity’s actions performed under that control are attributable to the State, even if the State has no knowledge of, or influence over, the particular conduct that violates international law. This might mean, for example, that Russia bears international responsibility for the Wagner Group’s conduct in attacking the building housing Ukrainian prisoners of war even if the attack was conducted without the knowledge or involvement of Russian officials.
Such a conclusion might be acceptable in the context of Russia and the Wagner Group because of the way in which Moscow uses the group to perform combat functions on its behalf, without seeming to exercise any control over the manner in which it operates. But the law of State responsibility does not apply exclusively to situations such as this. It governs States’ responsibility for all violations of international law, including those outside of conflict situations. Moreover, private actors frequently operate with considerable autonomy. Therefore, attributing all their conduct to a supporting State based upon a relatively loose threshold of State control might be a step too far, and one that proves unacceptable to States.
To illustrate, consider a State’s support to a non-State actor that conducts detention operations against a terrorist group. If the State’s wider relationship with the private entity satisfies the “overall control” threshold, and that test applies for the purposes of attribution, all the non-State actor’s conduct falling within the scope of the State’s control is attributable to the State. Therefore, if the non-State actor tortures detainees, the State might bear international responsibility for that conduct, irrespective of its officials’ knowledge of or influence over the mistreatment.
From a humanitarian perspective, this outcome could be viewed as beneficial, by acting as an incentive to States to exert greater control over the non-State actors they support. However, the State concerned would bear international responsibility for conduct with which it was not involved, and which cannot properly be categorized as its own. Fear of such a result could cause the State to disassociate itself from the operations – even though it might otherwise enable better conditions for those detained – to avoid incurring responsibility should the non-State actor engage in unlawful conduct. In short, the use of the “overall control” test in this context upsets the delicate balance that must be struck when attributing private conduct to a State and leads to a result that States, as the principal architects of international law, would be unlikely to accept.
Attributing the Wagner Group’s conduct to Russia via the “overall control” test is appealing due to the lower threshold it sets and the likely outcome that under this test, Russia would bear international responsibility for the PMC’s many LOAC violations. However, when considering the test’s application to other factual scenarios, there is some merit to the ICJ’s concern that this “stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility” (para 406).
Rather than extending the notion of control for these purposes, there might be a better basis on which to attribute the Wagner Group’s conduct to Russia. Attribution based on a State’s instructions, direction or control is just one out of a number of possible grounds on which private conduct may be attributed to a State. Regarding the Wagner Group, it is notable that Russia has authorized the PMC to perform combat functions on its behalf, which are clearly governmental in character. There is another basis of attribution that addresses exactly this situation and does not include any requirement for State control over the entity when it performs public functions pursuant to the State’s authorization (Article 5 ASR).
As I have argued elsewhere, this latter rule of attribution should be interpreted so as to encompass conduct on the part of private entities like the Wagner Group that act as an alternative fighting force for States, whether or not the entity is authorized to act in a manner that accords with the State’s domestic law. This is a more appropriate basis of attribution when thinking about Russia and the Wagner Group, which avoids over-extending the notion of control.