One of the most pronounced features of the war in Ukraine has been the heavy reliance of the Russian forces on convict-soldiers, especially by the private military and security company (PMSC) the Wagner Group. Wagner reportedly played a key role for Russia in securing and defending regions of Ukraine, most notably Bakhmut, and the company's involvement in Ukraine has attracted huge global attention. Its now deceased leader, Yevgeny Prigozhin, was an extremely vocal critic of the Russian military hierarchy for allegedly failing to provide Wagner with the necessary ammunition, culminating in the most remarkable event of the war thus far, when, in June 2023, Wagner forces staged a mutiny. This led to the seizure of the military command center in Rostov-on-Don and the advancement toward Moscow by Wagner forces, followed by the agreement to exile Prigozhin to Belarus, and, ultimately, the death of Prigozhin in a plane crash in Tver Oblast two months later.Footnote 1
Since summer 2022, Wagner forces in Ukraine have been largely comprised of recruits from prisons. Although penal units have been used historically by both Russia and militaries in general, such as during World War I, the use of prisoners for war fighting in Ukraine appears to be significantly different than the main alternative approaches to the arrangement of military forces in other recent conflicts, including wars in which other PMSCs have been hired extensively. What are the main problems with using convict-soldiers and how should we understand ethically the use of prisoners to fight as compared to other military arrangements, such as conscription or an all-volunteer force?
In this essay, I argue that the central issue with using prisoners to fight wars is the perceived expendability of convict-soldiers. I first claim that, although many prisoners have been under major duress, the use of convict-soldiers may be somewhat preferable to conscripts in this regard. Second, I argue that, in contrast to those who highlight the external problems with using convict-soldiers (that is, the problems that the prisoners cause), the main problem with using them is that they are likely to be subject to human rights abuses themselves, seemingly more so than other types of soldiers. Third, I argue that the liability of convict-soldiers for fighting in an unjust war does not render it permissible to treat them as expendable.
The argument that I present is comparative in two senses. The first sense is focused on the specifics of the case: the argument compares Wagner's use of prisoners to that by other Russian military forces. The second sense is more general: the argument compares convict-soldiers in general to private contractors, conscripts, and volunteer regular soldiers. Both forms of comparison are dependent on empirical features—of the particular case or the likely features of the arrangement of the military in question. In this regard, the differences identified below are not necessary ones—that is, they are not applicable to every instance of the use of prisoners for war fighting. There might, in other words, be exceptions. However, as we will see, there are still differences based on what we can reasonably expect of the alternative forms of the military based on the available evidence.Footnote 2
Wagner and Convict-Soldiers in Ukraine
Although some elements of the organization were already in place, Wagner was essentially formed in 2014, arising from Russia's desire to have armed forces in Ukraine that it could plausibly deny were its forces.Footnote 3 The firm was subsequently used in Syria to assist Russian forces, playing an important role in the second battle in Palmyra in 2016, helping the Syrian government recapture the city from the Islamic State.Footnote 4 Wagner has also been used in Mali, the Central African Republic, Libya, Sudan (where there currently appear to be connections with the Rapid Support Forces fighting against Sudan's regular army), and Mozambique (where it carried out counterinsurgency combat operations as part of a political deal with the government); it was also reported by U.S. intelligence to be working with Chadian rebels to destabilize the government and potentially assassinate the president of Chad.Footnote 5 In these roles, Wagner's operations have often been similar to those of special operations forces—akin, effectively, to traditional mercenary organizations that hire ex–special forces, on a relatively small scale, to undertake clandestine roles for those willing to pay.Footnote 6
The 2022 war in Ukraine saw Wagner expand its operations and approach. Prigozhin posted a series of videos online, including, most pertinently for this essay, of him recruiting prisoners.Footnote 7 Any lingering attempt to maintain plausible deniability, which was already tenuous by 2018 after the Deir al-Zour incident (in which U.S. forces clashed with Wagner forces in Syria),Footnote 8 was replaced with the need for a large number of soldiers, given Russian faltering war efforts, heavy casualties, and recruitment problems. The war in Ukraine is the first time that a mercenary army/PMSC has used prisoners to fight on a very large scale, with an estimated fifty thousand prisoners having been deployed by Wagner in Ukraine.Footnote 9
However, Wagner is not the only actor that has used prisoners in the war in Ukraine. The Russian military itself has recruited from prisons, copying Wagner, as part of the “broader, intense effort by the Russian military to bolster its numbers, while attempting to avoid implementing new mandatory mobilisation, which would be very unpopular with the Russian public.”Footnote 10 In October 2023, the Washington Post estimated that, based on a sharp drop in the number of Russian inmates, in total (that is, including Wagner convict-soldiers) Russia has sent over one hundred thousand prison inmates to fight in Ukraine. Many have been used in “Storm-Z” squads, which are effectively punishment battalions comprising prisoners and regular soldiers who have violated disciplinary rules, and, since September 2023, “Storm-V” units.Footnote 11 It is estimated that another Russian PMSC, Redut, has recruited at least one thousand convicts.Footnote 12 Moreover, Ukraine has also seemed open to using prisoners to fight on its side. In February 2022, President Zelensky stated that “Ukrainians with real combat experience will be released from custody and will be able to compensate for their guilt in the hottest spots of the war.”Footnote 13
These strategies in Ukraine and Russia are far from an aberration, even among highly accomplished Western militaries: for instance, it was reported in 1999 that the United Kingdom considered recruiting directly from prisons, with prisoners entering the army immediately after the end of their sentence.Footnote 14 The use of penal units has also been common historically. For instance, in World War I, the United Kingdom mobilized prisoners, allowing criminals to avoid prison and granting early release to adult prisoners if they enlisted. This offered a chance for criminals to rehabilitate themselves in the eyes of society and criminals were seen as desirable to the military due to their perceived violent nature.Footnote 15 All that said, the use of prisoners in the war in Ukraine is by far the most high-profile instance of this phenomenon in recent times.
How does using convict-soldiers compare ethically to other arrangements of the military, such as using regular conscripts (of free civilians) or an all-volunteer force? Of course, since the Russian war is clearly an unjust war, any form of military arrangement to advance the Russian cause should be deemed problematic. Notwithstanding this point, some forms of military arrangement are even worse than others. The 2003 Iraq War, for instance, was widely viewed as both ethically and legally problematic. But it seems plausible that it was seen as being even worse because of its reliance on PMSCs, which led to several major problems, including the undermining of the democratic control held by the American military force, the torture and killing of civilians by private contractors in Abu Ghraib and Nisour Square, and the exorbitant financial costs.Footnote 16 Likewise, we can think of an unjust war where child soldiers are deployed as being even worse than one in which regular soldiers are deployed. And, more broadly, we might also think that an all-things-considered just war is less justifiable because it uses a problematic arrangement of the military, such as the notorious PMSC Executive Outcomes used by the government of Sierra Leone to (justifiably) fight against the murderous Revolutionary United Front in 1995.Footnote 17
Duress
It seems clearly morally wrong when prisoners are forced to fight without their consent in an unjust war. However, at least some Russian prisoners seemingly consented to fight in Ukraine. They were promised that they would have their sentences commuted to six months if they enlisted, with a pay of one hundred thousand rubles per month.Footnote 18 Many prisoners were attracted by this offer. According to a testimony given to PBS NewsHour by a Wagner convict-soldier, “Yevgeny Prigozhin flew into our prison and talk[ed] to the prisoners. There were 560 people; 220 agreed to sign a contract with the Wagner Group and participate in the special military operation.”Footnote 19 And, according to a Russian Storm-Z convict-soldier, “‘I had a choice: rot in prison another eight years, or try to survive six months in Ukraine . . . I chose the latter.’”Footnote 20
Should we view such apparent consent as morally valid? On the one hand, it could not be plausibly claimed that the convict-soldiers gave free consent, which is widely held to require the availability of a reasonable alternative.Footnote 21 The convict-soldiers were under significant duress, it seems, given that they would have otherwise remained in prison. Yet this does not seem to be the end of the matter. We tend to hold that, under certain conditions, prisoners can validly consent to certain arrangements when it concerns their sentence and prison life.Footnote 22 These include making a plea bargain to reduce their sentence and agreeing to take on certain jobs in prison, such as being a library orderly or kitchen worker. If we think, then, that the validity of consent does not depend simply on being free from duress but, rather, more specifically, on whether the duress—or how much of the duress—is justified in the first place, then it could be permissible, in general, to use prisoners to fight. The reasoning, then, is this: When prisoners are culpable for their duress, the duress that they face does not invalidate their consent. They are not being coerced into fighting.
The underlying point here is that if there is an inevitable burden that needs to be distributed due to some injustice, and it cannot be distributed to those who are culpable for the injustice (such as to the Russian leaders), consent is a plausible way to distribute the burden. Suppose that Chris is robbing a bank and uses his gun to coerce Dan into going along with him. Chris makes Dan take two hostages, Abbie and Bella, wronging all three. Dan, trying to do his best in a terrible situation, persuades Chris to release one of the hostages while keeping the other for several days, with her suffering psychological and physical harm. Chris tells Dan that he is permitted to choose which of the two to let go. Bella does not volunteer to remain hostage, desperately wanting to get back home to look after her children. Abbie, on the other hand, volunteers to stay out of a sense of having less to lose and wanting to do her bit to help others; in this case, Bella. It seems that Dan should respect the wishes of Abbie and Bella about who should remain hostage—about where to distribute the unavoidable cost of being held hostage. That is, Dan should choose Abbie to remain as hostage, even though, of course, she is not liable in any way to these costs. We can assume here that political and military leaders will fight their unjust war regardless of who fights it, and this leads to the question of how the burden of war fighting should be distributed. There is no feasible option not to distribute it, as the alternative might be even worse, leading those who do not consent to the burden—that is, conscripts—to bear it. It is preferable that those who consent to the burden bear it rather than those who do not agree to it.
How does this apply to Russia's convict-soldiers? Given the various reports of the crimes they have committed before their enlistment, it is plausible that at least some of those in prison were rightly imprisoned and hence culpable for being under duress, and so the duress does not abrogate their consent. Likewise, given the various accounts of their signing up to fight in the war, it seems that some signed up freely (taking into account the background conditions), especially at the start of the prison recruitment program.Footnote 23 But this appears to be the case only for some of the prisoners and it is increasingly less clear that they are signing up freely. The Russian criminal justice system suffers from huge inadequaciesFootnote 24 and many are unjustly imprisoned, including many political prisoners.Footnote 25 Some of the convict-soldiers have been subject to an excessive degree of duress that is clearly disproportionate to their culpability (that is, going beyond justifiable imprisonment for crimes).Footnote 26 For instance, some convict-soldiers who are HIV positive were deprived effective treatment unless they agreed to fight, effectively conscripting them.Footnote 27 Thus, we might view this as some—and perhaps most—prisoners being, in fact, conscripted to fight. But, even then, a system in which some are conscripted may still be better than one in which all are conscripted, at least in terms of duress.Footnote 28 On the face of it, this provides a pro tanto reason for favoring prisoner recruitment over conscription.
It is worth emphasizing, though, that autonomy is not the only relevant consideration for the legitimacy of the military. Defenders of conscription highlight the importance of fairness, arguing that a system of conscription based on random selection or universal conscription is a fairer way to determine who within the state should bear the costs of being a soldier.Footnote 29 The claim is that conscription appears to disregard privilege when choosing who must bear arms, whereas a system that relies upon volunteers, recruiting from the market—either in the form of the volunteer regular army or with the use of PMSCs—will typically be made up of those more disadvantaged, as those who are wealthier have numerous other career options.Footnote 30 Similarly, in Russia the prison population is primarily made up of those from lower socioeconomic backgrounds and so using convict-soldiers might mean that the already disadvantaged end up bearing the burdens. Yet, although it is right that there are other considerations regarding the ethics of convict-soldiers—some of which I will come to shortly—fairness seems less relevant, at least in practice. Although a consideration of fairness suggests that there is a reason to favor conscription in principle, in practice systems of conscription tend to replicate and even exacerbate societal privileges, as those who are privileged are typically able to, in effect, dodge the draft.Footnote 31 This is the case, it seems, in Russia, where it is largely those from the poorest, remotest areas of Russia who have been left to do the fighting, while those in richer areas, such as in Moscow, have been less mobilized and those in the middle classes have long paid bribes to avoid the draft.Footnote 32
How do convict-soldiers compare to the all-volunteer force, where individual soldiers sign up to fight for the military (in Russia's case, on a contract basis)? This might appear to be much more preferable than using prisoners. But this should not be overstated: both volunteer soldiers and prisoners tend to have difficult socioeconomic backgrounds that often limit their life choices, which should make us question how many reasonable alternatives they have compared to being a soldier or choosing a life of crime.
External Challenges and Expendability
It might seem that we should be seriously concerned about the use of convict-soldiers because of what I will call the “external challenges” they pose. These are challenges that are caused by using prisoners.
The most obvious worry is that convict-soldiers will commit abuses against civilians from the opposing side, violating some of the central rules of jus in bello. After all, the objection runs, in an unjust war one of the benefits of using convict-soldiers is that they are violent and willing to act brutally in ways thought to be necessary to fight effectively. Several prisoners notorious for their heinous crimes have been recruited, including cannibals.Footnote 33 In Ukraine, Wagner's prisoner recruits have, indeed, committed human rights abuses against Ukrainian civilians and soldiers.Footnote 34 However, it is unclear whether they act any worse than other soldiers in this regard. Russian regular soldiers have also committed widespread human rights abuses. Although it might be the case that prisoners are more susceptible to committing abuses, this appears speculative without sufficient evidence to support the claim. We do know that a military's propensity to commit abuse is multifactorial—dependent on training, discipline, military education, and socialization, rather than solely the background of the recruits.Footnote 35
A second external challenge concerns the after-service period. Tens of thousands of former prisoners recruited by Wagner have returned to Russia, free to reenter society after their prison commutations. According to Prigozhin, “As of June 18, 2023, 32,000 persons previously convicted and who took part in the special military operation among the ranks of the Wagner PMC [private military company] went home at the end of their contracts.”Footnote 36 The argument may go that these commutations contravene the requirements of just punishment. It may, for instance, not be what they deserve, if one accepts some form of retributivism, such as the cases where the sentences of very violent criminals have been commuted after serving only a short period of their sentence. This might also appear to undermine expressivist justifications of punishment, as it weakens the criminal justice system's condemnation of the crimes committed by the now convict-soldiers. Moreover, the convict-soldiers may go on to commit further crimes. Indeed, there have been reports of murders committed by pardoned Wagner prisoners.Footnote 37
However, these arguments appear to be problematic. The convict-soldiers have undertaken major hardship—fighting in Ukraine is no easy way out. Their original crimes have not been condoned; rather, the heinousness of the crimes is what appears to motivate the choice to use convict-soldiers, as the prisoners are seen as less worthy of protection because they have committed serious crimes. There is still an expression, then, that they have acted wrongly. (As we will see shortly, this leads to a major problem with using convict-soldiers.) The risk of reoffending is seemingly a more valid concern. But, again, it needs to be seen comparatively: there is also a risk that using regular citizens for fighting will significantly increase rates of violent crime, given what we know about ex-soldiers and their propensity toward violent crime once they return from the battlefield.Footnote 38 Prigozhin claimed that less than 1 percent of all Wagner recruits have committed crimes after completing their contracts, and that there are higher reoffending rates by those who have not served as Wagner soldiers.Footnote 39 It is unclear whether this figure is accurate.Footnote 40
What we do know is that recidivism among Russian prisoners is very high; around 63 percent of inmates in Russian prisons are reoffenders.Footnote 41 It might be, then, that serving as a convict-soldier decreases the likelihood that a prisoner will reoffend. That said, the recidivism rates among ex-Wagner soldiers may be distorted because of a lack of recording crimes and of a new law that criminalizes those who attempt to discredit those who have served in Ukraine.Footnote 42 To be clear, I do not want to dismiss outright these external challenges. My point is that we do not have sufficient evidence that convict-soldiers are much worse in these regards than other forms of soldiers.
This brings us to an area where we should have more confidence. Rather than focusing on the external challenges posed by using prisoners for war fighting—on the abuses committed by convict-soldiers—I want to focus on the abuses of convict-soldiers. Again, this objection applies also to other arrangements of the military, where contract soldiers report being unprepared and mistreated, yet it seems particularly troubling for convict-soldiers. The issue is this: prisoners are seen as extremely expendable and, in effect, as cannon fodder. According to Ukrainian and Western officials, Wagner has sent poorly prepared fighters to certain death in eastern Ukraine.Footnote 43 The testimony of one convict-soldier given to the New York Times is powerful: “We are being sent to a slaughter . . . . We are not human to them, because we are criminals . . . . Every day, we live like on top of a powder barrel . . . . They tell us, ‘You are nobodies, and your name is nothing.’”Footnote 44 According to another testimony from a former inmate who is now deceased, “I'm running around with an automatic gun like an idiot. I haven't made a single shot, I haven't seen a single enemy . . . . We are just a bait to expose their artillery positions.”Footnote 45 A Storm-Z convict-soldier testifies to being sent into a ‘“total meat grinder,’ without proper armaments or without even being told of the real situation on the front line.”Footnote 46 Indeed, the death toll of convict-soldiers has been very high. According to a Wagner Telegram channel, twenty-two thousand Wagner recruits have been killed (as of July 2023), with forty thousand injured (out of a total of seventy-eight thousand fighters, forty-nine thousand of whom were recruits from prisons).Footnote 47
Prisoners are particularly likely to be seen as expendable by political and military leaders. Unlike for regular soldiers in the volunteer force or those conscripted, there is less likely among the general population to be an aversion to the casualties of prisoners. There is less likely to be sympathy for convict-soldiers in society, given that they have committed crimes. Indeed, more generally across the world, the plight of prisoners is widely overlooked, from the dehumanizing conditions of incarceration, to the insufficient attention paid to shocking rates of prisoner suicides, to the willingness to subject prisoners to risky medical trials.
In addition, convict-soldiers have little power when the terms of the agreement that they make are violated. They may be forced to fight for longer or not be paid for their service, in violation of their contracts, with little uproar from society. Indeed, this has been the case with Russia's convict-soldiers. According to testimonies given to the New York Times, officers forced surviving convict-soldiers to remain at the front for another year after the end of their contracts and, during their service, they were deprived of food and water for days after asking the commander to be relieved.Footnote 48
To be clear, being seen as expendable—and having their rights violated—is not unique to convict-soldiers. There is indication that the casualty rate among Russian conscripts has also been high (and that conscripts have also been poorly treated).Footnote 49 In other wars, such as in Iraq and Afghanistan, third country nationals (TCNs) from states such as Uganda and the Philippines were also subject to unnecessary risks and unable to leave at the end of their contracts.Footnote 50 But, despite this, the level of abuse and the number of deaths suggest that the concern about prisoners being seen as expendable is even greater with convict-soldiers.
Liability and Expendability
All this might be thought to be rendered redundant, however, by the fact that the convict-soldiers have been fighting an unjust war in Ukraine. Given their apparent consent (at least, for some), this might appear to render them liable to lethal force. This is clear on both the traditionalist and revisionist understandings of liability in just war theory. For the traditionalist, the convict-soldiers would be liable simply by being combatants, by taking up arms. For the revisionist, the convict-soldiers (who do consent) would be liable because they are freely and willingly (and potentially culpably) contributing to an unjust war.
Indeed, we might think that convict-soldiers should be targeted ahead of other Russian soldiers. Say that Ukrainians have the choice of using force against Russian conscripts or convict-soldiers. Who should they target? Arguably, given that (some) convict-soldiers have agreed to participate in the war, convict-soldiers are more culpable for taking part in the unjust war (assuming they have consented).Footnote 51 If we hold that those who are more culpable should, ideally, bear the burdens when they need to be distributed, it would appear to follow that those convict-soldiers should be targeted first.
It might also appear to follow that their expendability should not be seen as problematic to the extent that they are liable. Does the fact that (some) convict-soldiers appear to have agreed to the risk mean that we should not be too concerned about them being expendable? After all, they agreed to fight in an unjust war and, in his notorious videos, Prigozhin is upfront about the risks.
But it is important to separate two considerations here in relation to the risk of harms borne by those fighting in an unjust war. The first consideration concerns the justifiability of the targeting decisions—including the distribution of risks of harms—by those on the other side, such as by those pursuing the just war (in this case, Ukraine). This should reflect the culpability for fighting, with those most culpable bearing the most harm. Ukrainian forces do nothing wrong when they target (within the laws of war) convict-soldiers who are seen as expendable by Russians, since, we can assume, this harm is necessary for Ukraine to fight a (just) war of self-defense. The second consideration concerns the justifiability of the likely risks of harm imposed by those pursuing the unjust war; in this case, the Russian military command. This harm should be distributed as justifiably as possible, such as to those who are culpable or consent (as argued above). Yet this harm should also be necessary. The fact that A agrees to the risk of major harm does not mean that it is right that B subjects A to the risk of major harm when there is the alternative of not subjecting them or anyone else to the harm (and the alternative is the more just scenario). Likewise, it is better that convict soldiers are not subject to harm, given that it is unnecessary; there is an option of not fighting the unjust war.
So, despite their apparent liability, we should still be concerned about the perceived expendability of convict-soldiers.
Conclusion
A complete picture of what it means to fight a just or unjust war must include an understanding of the complexities of using convict-soldiers. I have argued that their perceived expendability is the central problem with the use of prisoners to fight wars. In addition to all the other problems of Russia's war in Ukraine, and violations of jus ad bellum and jus in bello, the treatment of their own prisoners as, in effect, cannon fodder further establishes the injustice of the Russian “special military operation.” Though the focus here has been on the war in Ukraine, it seems likely that the lessons are applicable across other conflicts as well in which prisoners are used to fight wars. Governments are likely to perceive convict-soldiers as expendable, compared to other sectors of a population, making them more prone to abuse by the military apparatus and the state.
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