Dr Danny Gough, Senior Lecturer NLS, https://www.ntu.ac.uk/staff-profiles/law/daniel-gough
Unless you’ve been living under a rock recently it’s likely that you will have heard of the Wagner Group and their leader Evegny Prigozhin. Before he decided to take his group on a roadtrip from Rostov up the M4, the Wagner Group were best known for their brutal and bloody advance in the Ukrainian city of Bakhmut. And in doing so, they bought to light one of the more niche legal discussions in respect to the Russian invasion of Ukraine. In particular, they highlighted the tendency of both sides to rely upon allegations of mercenarism in an attempt to delegitimise opposing fighters and prevent them benefitting from many of the protections afforded to combatants. At the centre of this is the legal status of mercenaries under international humanitarian law.
While they currently occupy a unique position within the laws of armed conflict, for the majority of human history mercenaries have been the norm, rather than the exception. Whether that be the Condottierre of the Italian City States, the Landsknechts of Germany, or the private armies that controlled much of Southeast Asia during the early colonialism of the East India Company. However, by the early 20th century, the emergence of the nation state as the pre-eminent form of international body simultaneously led to the state monopolisation of legitimate violence as a central component of the social contract this was built upon. With this there was a gradual move away from the use of mercenaries to the incorporation of professional civilian armies.
This shift in mentality is reflected in codification of a number of areas of international law, that make the current use of mercenaries legally, morally, and politically unacceptable. International humanitarian law currently recognises two classes of persons during armed conflict: civilians and combatants. Under Article 43 of Additional Protocol I, combatants are ordinarily comprised of the “Members of the armed forces of a Party to a conflict.” These are the only people legally permitted to take part in the armed conflict and conversely the only people legally permitted to be targeted during the armed conflict. They are also offered a broad range of protections if captured or rendered hors de combat (out of military action). The first of these is that, if captured, combatants are awarded prisoner of war status and the protections included within this under the Third Geneva Convention. Furthermore, as prisoners of war, combatants cannot be tried for taking part in the armed conflict.
Article 47 of Additional Protocol I explicitly states that, “A mercenary shall not have the right to be a combatant or a prisoner of war”. As such, any mercenaries fall within the broad class of non-combatants and when directly participating in hostilities are classed as unlawful or underprivileged combatants. This makes them legitimate targets of attack but offers them much more limited protection if captured of rendered hors de combat. They can also be criminally tried for taking part in hostilities.
In Ukraine, allegations of mercenarism have therefore been a common refrain. Even prior to the battle for Bakhmut, the Wagner group have repeatedly been referred to as mercenaries by members of the Ukrainian Government and Armed Forces with this terminology largely mirrored in the British and American press. However, these allegations are not one sided. In the early days of the invasion tens of thousands of individuals, primarily from other former soviet bloc states but also UK, US, and Japanese citizens, have joined the Ukrainian defence. The demand was so high that the Ukrainian Armed Forces created an “international legion” specifically composed of troops not from Ukraine. The Russian military almost exclusively refers to members of the International Legion as mercenaries and Russian state sponsored news organisation TASS runs stories of “Western Mercenaries” on an almost daily basis. Among the most notable of these are British citizens Shaun Pinner and Aiden Aslin, both captured in defence of Mariupol. It was on the basis of them both being ‘unlawful combatants’ that they were sentenced to death as Mercenaries for participating in the defence of Ukraine.
This raises an important legal question as to whether any of these groups actually are mercenaries? The definition of a mercenary comes from Article 47 of Additional Protocol I, which provided the first international legal definition of a ‘mercenary’ under International Humanitarian Law. This has since been re-iterated in the “Mercenary Convention” to which Ukraine, but not Russia, is a party. The determinative criteria for a mercenary consists of a cumulative six stage test:
(a) is specially recruited… in order to fight in an armed conflict;
(b) does… take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
In order to determine whether either the Wagner Group, or the International Legion fall within this it is necessary to consider the potential problems in applying this to either of these groups.
For the Wagner Group, there seems to be little issue with the first two criteria, as their troops are recruited to, and do, play a central role in the hostilities. Similarly, while exact pay is murky it is uncontroversial to say that Wagner fighters are paid significantly more than regular Russian forces and are therefore motivated by private gain. In Syria, documents show Wagner forces were paid around £4,400 per month compared to the standard military salary of £1,100. It is also alleged all of these payments are made in cash, to avoid any tax liabilities, a claim seemingly supported by Prigozhin himself. However, despite this, any claim of Wagner being mercenaries would appear to fail under criteria (d). While there have been some exceptional suggestions of foreign fighters from Iraq and Syria, overwhelmingly Wagner fighters have been recruited from within Russia, including more recently from the Russian Prison population. Therefore, despite appearing to fulfil the old adage of “soldiers of fortune” it is unlikely that they legally amount to mercenaries.
For members of Ukraine’s International Legion, the likelihood of them being legally classed as mercenaries is similarly small. This is due in large part to the strict enlistment process for members. Whilst they are recruited and participate in hostilities, members of the International Legion are required to sign contracts with the central Ukrainian Ministry of Defence to do so. Crucially, they are paid exactly the same as their Ukrainian counterparts, equating to around £600 per month. As a result, despite Russian claims, it is highly unlikely that there are any “foreign mercenaries” (at least from a legal perspective) fighting on behalf of Ukraine.
It appears therefore that despite both sides protestations, neither the Wagner Group, or the International Legion are in fact mercenaries under IHL. The question then remains, what is their status?
Under Article 43 of Additional Protocol I, the term “armed forces” has a broader legal definition than states may adopt. Here ‘armed forces’ extends to any group under “a command responsible to that Party.” The key question therefore becomes whether these groups are under the command of their respective armed forces. The ICTY (International Criminal Tribunal for the Former Yugoslavia) in Tadic were tasked with considering a similar issue in relation to paramilitary groups in breakaway regions of Yugoslavia. The ICTY concluded that ‘command responsibility’ required a test of “overall control” meaning “not only [the] equipping and financing [of] the group, but also [the] coordinating or helping in the general planning of its military activity.” For the International Legion, it is clear they are regularised into the Ukrainian military and operate within the traditional hierarchical command structure. Despite their nationality they legally therefore part of the Ukrainian Armed Forces. For the Wagner Group, the issue is slightly less clear cut as they clearly operate under a degree of autonomy in their general operations, it appears that in Ukraine they had been in much more close co-ordiation with the Russian MoD. Recently, Prigozhin had complained that the MoD had not been providing sufficient artillery shells, suggesting they were being centrally equipped by the Russian Army. But more importantly, their actions in Bakhmut appear to have been closely co-ordinated with the support of the Russian army and Air Force, likely fulfilling the “co-ordination and general planning” required to fall under the command of the Armed Forces within IHL. It is likely therefore that despite popular conceptions, mercenaries are not turning the tide for or against the Russian invasion.
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