Recent headlines about the Wagner Group bring back to the fore the perennially problematic matter of so-called soldiers of fortune. In recent history, prominent non-state actors such as Executive Outcomes were involved with African civil conflicts in the 1990s; Blackwater featured in the Iraq and Afghanistan invasions during the 2000s; and, now, the Wagner Group is active in Mali, Libya, the Central African Republic, and Ukraine. Each episode features vivid accounts and allegations of human rights abuses and potential war crimes.
While these actors operate at the metaphorical tip of the spear and are thus in an extreme minority, they represent and evoke a broader universe of non-state actors engaged in the provision of security and military services in ways that challenge the state’s monopoly on the use of legitimate violence. That universe is constituted by a constellation of loosely defined actors that include mercenaries, private security companies (PSCs), and private military and security companies (PMSCs). In recent years, the PMSC has been the preferred concept to try and encapsulate those within the field and to produce critiques of their regulation.
For all the efforts undertaken, international law struggles to even apprehend PSMCs as regulatory objects. This has shifted the onus of regulation to non-state actors and transnational governance arrangements. But, as the Wagner example painfully shows, this, too, is ultimately no substitute for public regulation.
The Elusiveness of PMSCs: Problems With Definition
The concepts surrounding groups such as Wagner are nebulous because the actors themselves assume amorphous forms. For example, for a considerable period of time, the Wagner Group did not have “a legal address, its own website, or any other source of public company information.” It has been referred to as “[a] shadowy band of mercenaries,” a “semi-state security actor,” and an informal paramilitary that is often mistaken as a PMC. The New York Times reports that the group operates “through a sprawling web of shell companies” and that “it has become a byword for a broad spectrum of Kremlin-backed operations in over a dozen African countries.” This is echoed by both U.S. and European officials, who call the group an unofficial tool of Russian power.
This complexity of form is compounded by enhanced sophistication of means. For example, technology has expanded the services that private actors can provide in the security arena, such as cybersecurity, surveillance, and intelligence gathering, whether through drones or advanced algorithms and artificial intelligence, for defense or offense. Some firms, thus, are better described not as security providers but as risk management or intelligence consultants. Wagner again is a good example of this as the group was implicated recently in the orchestration of digital propaganda campaigns through the now-sanctioned Internet Research Agency. As such, there is a sliding scale of formality, definitions, activities, scenarios, and geographies—distinct yet interrelated categories that impact the classification of private actors operating broadly in the military and security field. Simply describing a group as mercenaries or as a PMSC from a sociological perspective does not necessarily provide conceptual clarity about its exact legal nature. This makes it difficult to decipher which legal regime applies at any given time.
International law, to make matters worse, has struggled historically to define the concept of the mercenary. It still struggles today. Definitions can be found in Article 47, Additional Protocol 1, the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989 Convention), and the Organization of African Unity Convention for the Elimination of Mercenaries in Africa (OAU Convention). To begin with, these instruments have only limited applicability: The Additional Protocol is relevant only in relation to international humanitarian law, only 37 states are signatories to the 1989 Convention, and the OAU Convention is limited to Africa. In all three cases, the definitions of mercenary are both restrictive and cumulative. They focus narrowly on elements such as an individual’s nationality and intent, and whether an individual participates directly in the hostilities. The requirement for a private gain motivation (see, for example, Article 47(2)) is perhaps the easiest to satisfy, although it may be mixed with other motivations. (For example, is the prospect of being freed from prison a form of “private gain”?) But the requirement that one not be “a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict” would, for example, exclude Wagner from the definition of mercenarism in Ukraine, albeit not in Africa.
One of the reasons for these definitional ambiguities is the multitude of competing reasons that different actors have deployed to criminalize mercenarism over time. Early instruments focused on what was then perceived as the association of mercenaries with efforts to repress anti-colonial resistance. Mercenarism was taboo because it seemed to be driven primarily by a Western agenda of interference. Another approach was based on a general wariness about the privatization of violence. The 1989 Convention’s emphasis on “private gain” signals this as uniquely defining and problematic with mercenaries. Since the 1990s, however, these concerns have receded significantly: As mercenaries evolved into sophisticated PMSCs fully aligned with Western militaries’ turn to privatization, concerns have shifted to their potential nefarious humanitarian impact. But it is difficult to argue that PMSCs necessarily or inherently violate international humanitarian or human rights law, especially in an age when much has been done to engage pragmatically with violent armed groups. And if there is nothing inherently problematic about PMSCs, then perhaps the regulation ought to focus merely on individual transgressions, as it does with any army: There is very little about so-called mercenaries that is specific to legally defined mercenaries. The international law of privatized violence is constantly at risk of losing its object even as it seeks to capture it.
Another route, then, is to focus on responsible states. Private military groups allow some states to hide their responsibility by permitting private companies to use force in their place (namely, using mercenaries as “little green men”). This is less a concern with privatization than it is a worry about state behavior. It resurrects some of the original concern with Cold War Western interference by proxy, but in a landscape that has now changed fundamentally and in which the privatization of violence no longer elicits the kind of knee-jerk reaction it once did. The concern, then, shifts away from using proxies per se to, if anything, using proxies covertly and in ways that seem destined to shirk international responsibility, particularly when in association with illegal uses of force. This is, again, a very different concern—one less about the privatization of violence or violations of the laws of war than about the potential for circumventing the law of state responsibility, notably when it comes to the jus ad bellum. But it does not require a very specific concept of mercenarism: The state would be liable under international rules of imputability whether the group involved was a PMSC or not. The same is true of rules of individual criminal responsibility: These are always an option, but the commission of war crimes, for example, is not particularly reliant on acting as a mercenary or not.
These definitional exercises have been used as the rationale for banning some but allowing other exercises of privatized military violence. But each leads to both hair-splitting and contradictions—and ultimately these kinds of gaps make it easy for companies, groups, and individuals to skirt regulatory oversight.
The Turn to Transnational Regulation
In the midst of such international legal circuity, one notable solution has been a shift toward entrusting the regulation of PMSCs to the industry and its participants through private law tools. While this does not avoid the definitional issues entirely, it has made them potentially less salient and allows for a range of market-responsive solutions to address concerns as they emerge. For example, the Montreux Document focuses its purview on PMSCs and defines them as “private business entities that provide military and/or security services, irrespective of how they describe themselves.” This definition has been adopted by a host of transnational institutions and governance bodies, such as the International Code of Conduct Association of Private Military and Security. This has renewed the definitional exercise by focusing on corporations, rather than natural persons, as the regulatory object. If the point of these companies is that they now seek to act as legitimate corporate actors, then they should be regulated as such with sufficient incentive to act in ways consonant with the international legal agenda.
One benefit of shifting the object of regulatory focus from natural persons to corporations is its situation within a growing body of transnational regulation and governance frameworks that collectively nudge corporations toward more responsible behavior. The frameworks include a variety of instruments such as the International Code of Conduct, the UN Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises, the Voluntary Principles on Security and Human Rights, domestic due diligence legislation, and even to some degree environmental, social, and governance (ESG) ratings through negative or exclusionary screening. Private law tools feature prominently in this suite of frameworks as they are the primary means through which corporations can assume and abide by obligations beyond what state-based legislation alone may dictate. For example, International Code of Conduct (ICoC) signatory companies commit “to respect the human rights of, and fulfill humanitarian responsibilities towards, all those affected by their business activities, including Personnel, Clients, suppliers, shareholders, and the population of the area in which services are provided.”
Becoming a signatory to the ICoC has become a condition precedent to provide security services for the UN and other humanitarian organizations. The Voluntary Principles of Security and Human Rights make similar inroads with the private sector and notably in the provision of security for extractive companies. To support the effective implementation of these contractual commitments, a broader set of instruments, such as the UN Guiding Principles and the OECD Guidelines, call upon PMSCs to conduct due diligence to manage their potential human rights impacts, undergo audits, and provide access to remedies through grievance mechanisms that can be administered privately. This is a clear shift toward the privatization of oversight and management of the impact on individuals and communities by private actors and further burgeoning of transnational governance and regulation across the private military and security industry.
The goal of transnational regulation is to better facilitate the actions and interactions of global actors within a specific industry where national and international regulation may have failed or be inadequate, particularly where PMSCs operate far from their base. Transnational regulation attempts to respond to problems of fragmented public rules across divergent national regimes through the introduction of uniform private rules. The active participation of private industry actors outside of national and international state-based regulatory processes is meant to provide technological and technical expertise as well as the incentive structure that state-based regulators were seen as lacking. Overall, while transnational regulation of PMSCs is certainly not uncontentious, it has arguably ensured that governance frameworks remain dynamic and responsive to developments in the field.
Yet, the case of Wagner is a stark reminder that these forms of largely voluntary regulations are of little use (and that even in the best of cases they are contentious) with actors that remain resolutely beyond even those flexible frameworks. The Wagner Group has carefully avoided all kinds of regulatory entanglements, all the more so that it largely eludes even corporate definition. There is, therefore, very little to expect in terms of due diligence and abidance with responsible business conduct norms. Moreover, it evidently operates with the blessing of Russian authorities, even as the government there denies any links to it. Russia is also neither a party to the 1989 Convention on mercenaries nor a participant to the Montreux Document, thus ensuring that it acknowledges and has remarkably few obligations under general international law. Indeed, Wagner focuses our attention back to the hard cases: the assortment of difficult actors and networks playing amorphous roles that highlight the limits of transnational private governance and remind us of the importance of state action.
The Limits of Transnational Governance and the Need for State or International Action
To respond to this sort of regulatory failure, several courses of action seem possible, although all have their drawbacks and threaten to pull us back into a definitional quagmire. One is to, again, look beyond the corporate veil and target members of the Wagner Group as individual mercenaries. Based on applicable international definitions, however, this works only for their activities in the service of foreign states. To the extent that the group is deployed in Ukraine as, essentially, a sort of adjunct to the Russian armed forces (whatever the political rivalry between the group and the Russian army), then the term “mercenary” is not operative or useful. At least assuming that members of Wagner so deployed are Russian nationals, then they are involved in an armed conflict to which Russia is a party and fail to fulfill the requirement that they come from a third country. This means that members of the Wagner Group who are captured are entitled to prisoner of war status, and there is no issue per se with their participation in the armed conflict. The Wagner Group might be a mercenary group in some contexts but not others. Of course, even if they are not mercenaries, this does not alleviate misgivings about their involvement in the war in Ukraine.
Another angle, then, is to target individuals under international criminal law for, notably, the commission of war crimes. There is no shortage of evidence that Wagner members have been involved in war crimes in Bucha and Eastern Ukraine, including torture and rape, but also in how they have conducted hostilities. This will of course be subject to the inherent limitations of seeking such prosecutions. But even if such prosecutions are successful, the problem is that this does not really get at the rotten core of the sort of activities that Wagner undertakes. It does not prosecute Wagner members for participating in shadowy violence in itself. Targeting the group as a whole, however, can also be difficult to achieve through conventional accountability tools. This can be attempted through sanctions, including travel bans or asset freezes, on the basis that Wagner is violating UN Security Council resolutions or is more generally involved in illegal activity. But it is more difficult to specifically tie the Wagner Group to criminal activity in ways that would justify not just freezing but, for example, seizing its assets, assuming that these are easy to identify in the first place.
Assuming further that it is not illegal per se for Wagner to participate in the war in Ukraine and leaving aside the possibility that individual members have committed war crimes, the international community is left with few possibilities. One is to target mercenary activities outside Ukraine qua mercenary activity. Another is to consider that the level of humanitarian and human rights violations by the Wagner Group essentially transform it into a criminal organization. Indeed, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) in particular has designated the group, pursuant to Executive Orders 13581 and 13667, as a “significant transnational criminal organization.” The basis for this designation is the behavior of Wagner in the Central African Republic and Mali, notably mass executions, rape, child abductions, and physical abuse. This is a promising approach. The idea has been to target the Wagner Group’s network of Russian and global corporate backers, as well as key individuals. The expectation may be that sanctioning the Wagner Group for its activities beyond Russia will have a boomerang effect and hinder its ability to operate in Ukraine. Simultaneously, the Wagner Group’s involvement in Ukraine had been sanctioned by the U.S. (see, for example, Executive Orders 13660 and 14024). Nonetheless, such measures are fundamentally in the nature of sanctions rather than punishment as such.
Finally, there remains the possibility that Russia will be liable for the acts of the Wagner Group. This makes sense of the imperative to ensure that states do not use proxies to undertake actions that would be clearly illegal if undertaken by them. This might be much harder to prove in the Central African Republic, Mali, or Libya, for example, where Wagner seems to be acting most clearly in a private capacity. It is the governments of those countries, contracting Wagner as they have, that should primarily shoulder responsibility for crimes committed by the group. Whatever distaste one may have for Russia essentially taking advantage of the Wagner Group to destabilize countries in Africa, the relative autonomy of the group means that its actions will be hard to trace back to Russia for the purpose of state responsibility, at least on the basis of the quite stringent standard outlined by the International Court of Justice in the Bosnia case. In Ukraine, however, there is certainly an argument that the Wagner Group is ultimately under the de facto “effective control” of the Russian state, as per the rules of international attribution of responsibility. Whatever tensions may exist between the Russian army and the Wagner Group, it is clear that Wagner would not be in Ukraine fighting alongside Russian troops if it was not fully authorized and, in fact, encouraged by the Russian state to do so. It may also be possible to trace violations in Syria back to Moscow, given the entanglement of Russian armed efforts there and those of the Wagner Group.
The regulatory environment of PMSCs is a patchwork of norms with differing and sometimes contradictory inspiration and different degrees of bindingness. The disconnect between antiquated international law sources, developing but largely voluntary transnational corporate practice, and the reality of amorphous entities such as the Wagner Group creates opportunities for regulatory escape. Indeed, as a sprawling network of shell companies and individuals, the Wagner Group has turned out to be particularly elusive. Regulating the activity of actors that prefer to operate in the penumbra of legality remains a challenge for private law instruments that expose the limits of self-regulation. The two-decade-long effort to shift regulation for PMSCs to the private sector painfully shows its limits in a context where some groups operate with significant state backing and secrecy.
The case of the Wagner Group illustrates that there can be no single approach to dealing with corporate violence. When the group operates outside Russia in a corporate capacity, prohibitions on mercenarism may still have some value. When operating in Ukraine in the service of Russian military goals, the better view is that group members are a form of suppletives and, in that respect, not that different from Russian combatants. In both cases, individual members certainly remain liable for crimes they may commit in their individual capacity. And in the case of Ukraine, the proximity to Russian war aims can facilitate an extra layer of state responsibility.
Source : Lawfare