Introduction
Over the past decade it has become increasingly commonplace to find camo-clad Eastern European nationals deployed as private military contractors in Africa. Human Rights Watch stated in 2022 that United Nations experts and special rapporteurs all report significant and proliferating numbers of members of the Russia-backed private military company (PMC) the Wagner Group being operational in central Africa.Footnote 1 The Office of the High Commission for Human Rights has also sounded the alarm to UN peacekeepers about the proximity of these “Russian trainers”.Footnote 2 Wagner PMC is the military arm of an “extensive network of business entities that are owned, operated, or financed” by the late Yevgeny Prigozhin; since 2017, it has provided a full catalogue of military services in Africa.Footnote 3 According to Human Rights Watch and several foreign policy think tanks, Wagner as well as the Africa Corps have been providing security for senior politicians, guarding oilfields and gold mines, resisting rebel coup attempts and Islamic military groups such as Islamic State of Iraq and the Levant (ISIL), facilitating military coups, suppressing dissent, propping up nascent dictatorships, training and commanding local army units, providing technical support for the repair of military vehicles, participating in combat operations, acting as artillery and air observers, and providing electronic countermeasures, expertise, sniper services and troll factories.Footnote 4 Wagner has partnered with elected leaders, African dictators, rebel groups and military generals, including Bashar al-Assad, Omar al-Bashir, Saif al-Islam Gaddafi, Khalifa Haftar and Mohamed Hamdan Dagalo (Hemedti), and pro-government forces in the Central African Republic (CAR), Mozambique and Mali. When French and Chadian soldiers pulled out of Mali, 2,000 Wagner members were waiting in the wings, and Mali is now “largely dependent on Wagner for its internal security”.Footnote 5 Wagner forces have even been co-opted into the UN Multidimensional Integrated Stabilization Mission in the CAR. The Wagner Group has become so much a part of the landscape that it is immortalized in a statue in the centre of Bangui and was the subject of an action movie, The Tourist, that was filmed in the country.
The name Wagner soon became synonymous with serious violations of international humanitarian law (IHL), and also abuses of international human rights law (IHRL) in Africa.Footnote 6 Human Rights Watch (HRW), the International Crisis Group, the UN High Commissioner for Human Rights (OHCHR), the UN Panel of Experts and the European Union (EU) have all raised concerns about numerous acts of brutality and the systematic nature of the grave abuses and war crimes perpetrated by Wagner PMC.Footnote 7 The allegations involve accounts of rape, beating, beheading, dismemberment and burning bodies, forced displacement of civilians, indiscriminate firing on unarmed civilians, planting unmarked landmines and explosives in civilian areas, the massacre of civilians, arbitrary and inhumane detention, torture during interrogation, disappearances and mass extrajudicial executions.Footnote 8 Research by the Armed Conflict Location and Event Data Project revealed that civilians have been the target of attacks in 52 to 71 per cent of incidents where Wagner used force in the CAR and Mali. In March 2022, 300 women and young boys who were alleged to support the Islamist guerrillas of the Groupe de soutien à l’Islam et aux Musulmans [Support Group for Islam and Muslims] were pulled out of their houses in the village of Moura, taken to a backyard, put against a wall and shot by two executioners (one a Malian soldier, the other a Wagner operative).Footnote 9 This was the largest massacre on Malian soil in the past decade. Those detained by the Wagner Group were denied access to justice, and victims were reticent to report their abuse.Footnote 10 In its report dated 28 March 2024, HRW documented that since December 2023, Malian armed forces and Wagner Group fighters had unlawfully killed and summarily executed several dozen civilians during counterinsurgency operations in central and northern Mali, including at least 14 civilians killed in military drone strikes on 16 and 17 February 2024.Footnote 11 Since May 2024, Malian armed forces, supported by the Wagner Group, have deliberately killed at least 32 civilians, have forcibly disappeared four others, and have burned down at least 100 homes in central and northern Mali.Footnote 12 Wagner has actively disseminated disinformation to shift the blame to other actors, and journalists, aid workers and peacekeepers who have attempted to expose these atrocities have been violently intimidated or silenced.Footnote 13 Three Russian journalists who were in the CAR to investigate Wagner were shot dead by Seleka fighters (rebel forces who toppled the CAR government in 2013) who had allegedly been paid by Wagner to kill them.Footnote 14 These atrocities persisted under the Africa Corps banner, evidenced by a five-day massacre in October 2023 which saw the group seize the gold mine in Koki, CAR. The violations of IHL and IHRL were so shocking that the justice minister in the CAR was forced to establish a special commission of inquiry to investigate the allegations, which concluded that Russian instructors had been involved in violations of IHL and repatriated these individuals to be tried in their home country.
Australia, Canada, Japan, the United Kingdom, the United States and the EU have responded by imposing sanctions, travel bans and asset freezes on Wagner PMC and Wagner-linked business entities in Africa, accusing it of executions, torture, human rights abuses and threats to peace and security in Africa.Footnote 15 Some countries have suspended military training and aid to states where Wagner has a presence.Footnote 16 African states have banned their own forces “from sharing operations, patrols, or barracks with the Wagner fighters because of their repeated violations of human rights”.Footnote 17 The EU suspended its training of CAR soldiers, and Rwanda banned its contingent to the UN blue helmet force in the CAR from conducting joint operations or sharing facilities with Wagner personnel due to their persistent human rights violations.Footnote 18 Wagner generals Dmitry Utkin and Yevgeny Prigozhin have been named on the US Treasury list of sanctioned Russians, and in 2023 the EU imposed personal sanctions on several individuals with links to Wagner, including the erstwhile member of the Russian state security service Valery Zakharov, who now acts as Wagner’s security adviser to the CAR’s President Touadéra. The United States has designated Wagner as a transnational criminal organization, and the United Kingdom and France have labelled it a foreign terrorist organization and have warned states of the consequences of contracting its services.Footnote 19
Initially, Russia denied the legal existence of or its association with the Wagner Group, even though the Wagner training base is located next to the Russian army base in Mol’kino and Wagner openly recruit on billboards across Russia. Such a group is prohibited under article 359 of the Russian Criminal Code. The EU maintains that there are nevertheless secret funding ties and oversight of Wagner by the Kremlin and Russia’s military intelligence, which allow the country to project clandestine force by way of the Wagner Group in conflicts around the globe, but without having to report casualties or bear any responsibility. Until 23 August 2023 the Wagner Group was headed by Putin’s “chef” Prigozhin and enjoyed a high degree of autonomy under him.Footnote 20 After leading an aborted mutiny against Russia’s army chief and defence minister in June 2023, Prigozhin announced that Wagner would be expanding their operations in Africa; a month later, on 23 August 2023, he and nine other senior Wagner officials, including Utkin, died in a mid-air explosion. Speculation has been rife that the Kremlin was behind the explosion.Footnote 21 Within days, President Putin signed a decree forcing paramilitary fighters like those in Wagner PMC to swear an oath to the Russian flag and sign indefinite enrolment contracts with the Russian army, without the option to end their contracts and at significantly reduced pay.Footnote 22 At the same time, African states, including Burkina Faso, the CAR, Libya, Niger and Mali, were visited by Russian deputy defence minister Yunus-bek Yevkurov and the Russian military intelligence agency’s General Andrei Averyanov.Footnote 23 They were assured that it would be business as usual in Africa and that Wagner’s integration in their defence infrastructures would persist under a new branding: the Africa Corps.Footnote 24 Wagner’s personnel, traditions, old insignia and operational strategies were quickly absorbed into the Africa Corps, which offered “regime survival packages”, mirroring Wagner’s past services but under direct Russian state control.Footnote 25 The launch of the Africa Corps was intended to reassure African leaders of continued military support and security assistance without the negative reputation of Wagner, which was linked to human rights abuses, resource exploitation, rogue mercenary activities and assassinations.Footnote 26 Wagner still operates in the CAR and Mali, but the brand persists primarily as a separate entity within the Africa Corps, rather than being completely dissolved.Footnote 27 In return for this assurance, these African states signed away their exclusive mining rights to gold, diamonds and uranium.Footnote 28 Mali, Niger and Burkina Faso announced their withdrawal from the Economic Community of West African States and instead created their own Alliance of Sahel States with Moscow’s backing.Footnote 29 Under this new brand, the Africa Corps began recruiting in December 2023 for a proposed force of 20,000, starting with job offers to Wagner members and including local residents in Africa. If attained, these numbers will significantly outstrip the size of the Wagner contingent in Africa up to 2023.
The media often refer to Wagner employees as mercenaries, without appreciating that the term has a specific and exacting legal definition in international law.Footnote 30 Like many others in the private military and security industry, the status of Wagner employees remains controversial.Footnote 31 Their legal status turns on their relationship with the host state, the type of activities that they are involved in, and the time, location and circumstances of the performance of their activities.Footnote 32 Where Wagner employees are officially incorporated into a state’s armed forces or even contracted to carry out functions for the state, their contractual link exempts them from mercenary status.Footnote 33 Despite the ambiguity of the legal classification of the PMCs, their violation of human rights is not new. Blackwater gained global infamy for the same reason, and in 2004 the US-led Coalition Provisional Authority passed Order 17 to ensure immunity from Iraqi criminal prosecution for US Blackwater contractors. As HRW Middle East director Sarah Whitson has correctly pointed out, “[h]aving shielded contractors from local prosecution, Washington has a responsibility to prosecute contractors in US courts if they are responsible for serious crimes in Iraq”.Footnote 34 This dilemma led to the development of the 2008 Montreux Document (which has the support of 58 states) and the International Code of Conduct for Private Security Providers, to reaffirm the legal obligations of states where the PMCs originate and of the states that hire them. The “pervasive instability and prevalence for failed states in Africa provides a climate in which PMCs are permitted to operate with relative impunity where the existing international legal regime has not been activated to provide broad accountability for PMCs and personnel”.Footnote 35 There is clearly a dire need “to prevent and ensure accountability for potential violations of human rights and international humanitarian law” perpetrated by these PMCs.Footnote 36
In this article, we explore how the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) could be used to hold states responsible when they use the services of these PMCs.Footnote 37 We begin by exploring how the ARSIWA provides a mechanism for imputing wrongful acts committed by PMCs to the states that employ them. We look at instances where PMCs such as Wagner are acting as a state’s agents in Africa, or where Wagner operatives are authorized to exercise government authority or act in a vacuum left by official authorities. We address how violations by Wagner of the fundamental protections found in IHL and the non-derogable IHRL protections attract state responsibility under international law, and explore the issue of how state responsibility arises even where the action of these PMCs is ultra vires and what degree of state control, instruction or adoption of that conduct is required. The second issue we address is how state responsibility can be triggered when the victims of abuses are nationals of the state that is hiring private companies to operate in their territory.Footnote 38 In response to this challenge, we argue that there is a dire need for the communitarian invocation of state responsibility by third-party states on behalf of these victims to end impunity, drive accountability and secure effective redress for victims. We argue that the ARSIWA provides such a mechanism and that this approach is reinforced by the regime of protection of IHRL in Africa. We focus on the operations of Wagner and the Africa Corps in Africa, although Wagner has been and still is active elsewhere around the world; the application of these ideas will be transferrable to these environments and can possibly be applied to any states using PMCs that violate IHL and IHRL.
Imputing state responsibility for violations of IHL and IHRL
Private military and security companies have a history of violating IHL and IHRL, and yet accountability remains weak owing to regulatory gaps and the lack of an international binding instrument.Footnote 39 While initiatives like the Montreux Document and the International Code of Conduct exist, national laws often fail to provide adequate provisions for licensing, oversight and accountability.Footnote 40 The transnational nature of private military and security companies, complex corporate structures and limited extraterritorial jurisdiction hinder victims’ access to justice. Holding corporate entities accountable for crimes against humanity at the national judicial level is one avenue for seeking accountability and redress.Footnote 41 The UN Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination advocates a legally binding international framework to standardize regulations, ensure accountability and provide effective remedies for victims. Strengthening corporate accountability and expanding universal jurisdiction are essential for addressing impunity and reinforcing human rights protections.Footnote 42
The International Law Commission adopted its ARSIWA by consensus in 2001, and it is widely accepted that the articles now constitute customary international law.Footnote 43 Pursuant to ARSIWA article 48(1)(b), “any State can invoke the responsibility of delinquent States when the breached obligation is owed to the international community as a whole”.Footnote 44 Consequently, we argue that when the actions of private operatives like the Wagner employees offend the most fundamental IHL and IHRL protections, the international community as a whole can claim to be injured, and can invoke the state responsibility of the delinquent state for the resultant damage or loss.Footnote 45 In what follows, we explore the various ways in which those employing private security contractors might be considered delinquent states. This imputation of state responsibility for abuses of IHL and IHRL perpetrated by private operatives ensures accountability and can provide effective remedies for victims.
Four criteria must be met before state responsibility can be invoked for violations of IHL and IHRL: 1) there must be an obligation under international law between the injured and the delinquent state; 2) an act or omission which violated that international legal obligation was perpetrated by the private operative; 3) the act or omission is attributable to the delinquent state; 4) the violation of the international legal obligation must have resulted in some loss to the injured state.Footnote 46 According to ARSIWA article 42, an injured state is any state:
“if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.”
Article 46 then goes on to endorse that “where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act”. Moreover, pursuant to article 48 where “the obligation breached is owed to the international community as a whole, … or is established for the protection of a collective interest of the group, … any State other than an injured State is entitled to invoke the responsibility of another State”.
It is not disputed that abuses such as rape, beatings, beheadings, dismemberment and burning of bodies, forced displacement of civilians, indiscriminate firing on unarmed civilians, planting unmarked landmines and explosives in civilian areas, the massacre of civilians, arbitrary and inhumane detention, torture during interrogation, disappearances, and mass extrajudicial executions clearly violate universally recognized IHL and IHRL obligations.Footnote 47 It is also not disputed that when civilians are victims of these abuses, the violations result in damage to the injured state. The evidence gathered by independent bodies like the OHCHR and HRW points to the conclusion that these abuses have been perpetrated by individuals with ties to Wagner / Africa Corps. In these cases, unfortunately, the victims of these abuses are predominantly nationals of the very states that are permitting Wagner / Africa Corps forces to operate on their territory. The fact that these states have not acted to assert their loss on behalf of their civilian population is not material to the fulfilment of ARSIWA article 2(d).
The focus of this article is to address what is perceived to be the greatest hurdle, that of how the actions of Wagner / Africa Corps forces can be imputed to a state from which state responsibility can flow. We explore how the ARSIWA can be used to impute the unlawful actions of those Wagner / Africa Corps members to the territorial states in which they are permitted to operate. We examine the commentaries which accompany ARSIWA articles 4 (on state organs), 5 (on authorized government authority), 7 (on ultra vires actions), 8 (on state control or instruction), 9 (on the absence of official authorities) and 11 (on conduct adopted by the state) to explore their application in these instances. By flagging this possibility for imputing state responsibility, we hope to not only provide a potential avenue for ending impunity, pursuing accountability and ensuring effective remedial action for the victims, but also to sound a warning to states employing Wagner / Africa Corps forces of their responsibilities under IHL and IHRL and the risks that they face when they use these services.
Imputing responsibility based on the actions or omissions of state organs
According to ARSIWA article 4, any violations of international law perpetrated by any part of a state’s organs are automatically attributable to the state. The notion that this attribution comes about not only pursuant to acts of the organs of state but also because of “any failure on the part of its organs (or omissions) to carry out the international obligations of the State” dates to the Preparatory Committee for the 1930 Conference for the Codification of International Law.Footnote 48 The commentary notes further that the International Court of Justice (ICJ) endorsed the idea that it is a principle of customary international law that this attribution encompasses all levels of state authority (from local to national level) and which are legislative, judicial and executive in nature.Footnote 49 It also encompasses the conduct of lower-level officials and minor organs of state, provided that the acts or omissions are carried out in their official capacity. The commentary notes that a state cannot avoid responsibility “for the conduct of a body which does in truth act as one of its organs”,Footnote 50 and the term “person or entity” used in ARSIWA article 4(2) includes any natural or legal person. With that clarification, what remains is the challenge in determining whether a state organ acts in that capacity. Here Crawford argues that “where such a person acts in an apparent official capacity or under the colour of authority, the actions in question will be attributable to the State”, even if those acts are unauthorized (this is explained further in ARSIWA article 7).Footnote 51 This is distinguishable from the act of an official of the state who acts in a private capacity and where the act “has no connection with the official function”.Footnote 52
Wagner / Africa Corps has been deeply involved with the local armed forces in Syria, Libya, the CAR, Sudan, Mali and Mozambique, and has engaged in activities traditionally carried out by the regular armed forces.Footnote 53 While Wagner / Africa Corps members were not officially or formally incorporated into the traditional armed forces, militias or volunteer corps of these African states, they were invited to provide assistance to the organ of state and were permitted to play an active role in the hostilities. In Syria, Wagner PMC assisted al-Assad’s pro-government forces; in Libya they supported forces loyal to General Haftar; in Sudan they operated under the authority of the interim military regime; in Mali they were invited in by the military council; and in Mozambique they helped the army resist the insurgent Islamist militants Al-Shabaab. In the CAR, Wagner PMC helped pro-government forces, and several Wagner members now hold powerful positions in the CAR government. The apparent official authority with which Wagner / Africa Corps were permitted to act on these states’ territories can serve as a basis to trigger the ARSIWA article 4 attribution of their conduct or omissions to these states. As will be made clear, under ARSIWA article 7, this attribution of state responsibility occurs irrespective of whether Wagner / Africa Corps’ activities were outside of their authorized duties, were prohibited by domestic military regulations or whether delegation to them of this state authority was prohibited under the state’s domestic law.Footnote 54 Provided that their actions or omissions bore a connection to their apparent official function and were not carried out in their private capacity, they can be attributable to the territorial state.
Imputing responsibility when entities exercise government authority
ARSIWA article 5 extends the state’s responsibility to cover those entities that might not fulfil ARSIWA article 4 criteria but which are empowered by state law from the executive, judiciary and by way of contractual arrangements to exercise government functions or carry out a public function in the place of state organs.Footnote 55 State contracts which authorize entities to engage in combat, arrest, detain and interrogate individuals, gather intelligence, maintain law and order and administer judicial processes amount to the exercise of government authority for which state responsibility under article 5 can be triggered. In fact, the commentaries to the ARSIWA mention the state subcontracting prison administration to private security companies as an example.Footnote 56 This applies to all acts and omissions, provided that the entity was engaged in government activity and not in private or commercial activities or self-help actions taken in self-defence. There is no need to show that the entity was acting under the state’s control at the time, provided that they were acting in a “government-like capacity”.Footnote 57 ARSIWA article 5 precludes states from circumventing their positive duties under IHL and IHRL by outsourcing those functions to a PMC.Footnote 58 The moment that PMCs are authorized to perform the state’s functions, all their future actions can be imputed to the state. Moreover, if that authorization is given ex post facto, such authorization can be seen to endorse the actions carried out previously.Footnote 59
On this basis, state responsibility may be imputed to Syria, Libya, the CAR, Sudan, Mali and Mozambique, which have contracted out their state functions to Wagner / Africa Corps personnel. In Syria, al-Assad used Wagner forces to defeat ISIL and to guard oilfields.Footnote 60 Wagner forces have been active supporters of the government and army in Libya, Sudan, Mali and Mozambique, offering military training and security services, and in the CAR even assuming influential posts within the government and customs authority.Footnote 61 The moment that an African state contracts Wagner / Africa Corps employees to undertake a state function, such as guarding military installations, it bears full state responsibility for any violations of IHL or IHRL that are perpetrated by Wagner / Africa Corps operatives while they are acting or omitting to act in accordance with IHL or IHRL.
Imputing responsibility in instances of ultra vires actions or omissions
ARSIWA article 7 extends the imputed state responsibility discussed under articles 4 and 5 to instances of ultra vires acts. All actions or omissions cloaked with government authority attract state responsibility, even where the specific activities performed “exceed their authority or contravene instructions, and even when the actions are disowned by the state”.Footnote 62 This principle of making states responsible for the ultra vires actions of their armed forces is not unique to the ARSIWA; it is also found in Additional Protocol 1 (article 91) and is reiterated in the jurisprudence of several human rights courts.Footnote 63 The criteria for determining whether state responsibility can be imputed for these ultra vires acts is whether the conduct or omission was performed cloaked with government authority (albeit unauthorized) or if it was private in nature (that is, removed from the ambit of an official function). In the commentaries to ARSIWA article 7, Crawford argues that in instances where the ultra vires acts or omissions are “systematic or recurrent, such that the State ought to know or have known and taken steps to prevent it”, the distinction can be avoided, and the acts can attract state responsibility. When states incorporate Wagner / Africa Corps members into their armed forces, or contract them to carry out governmental duties, they bear state responsibility for all their acts and omissions. They cannot raise the defence that Wagner / Africa Corps employees were acting in contravention of their instructions once they were “cloaked with government authority”.Footnote 64 Any violations of international law linked to action or omission cloaked with government authority committed by Wagner / Africa Corps forces in Syria, Libya, the CAR, Sudan, Mali and Mozambique will attract state responsibility. In instances where Wagner / Africa Corps’ violations of IHL and IHRL are recurrent (as appears to be the case), states that contract their services are put on notice to take steps to prevent these violations and bear state responsibility for these violations, even where Wagner / Africa Corps are acting ultra vires. This means that Wagner / Africa Corps forces engaging in torture or omitting to intervene to prevent acts of torture perpetrated by other state actors will attract state responsibility.
Imputing responsibility for acts or omissions under state control or instructions
ARSIWA article 8 extends state responsibility to cover the actions of non-state “persons or groups who are acting under the instructions or under the direction or control of” a state.Footnote 65 Article 8 specifically includes occasions where the state recruits private individuals and either instructs or directs their acts or omissions. States often supplement their resources by recruiting private individuals (in this case PMCs) without formally incorporating them into the state machinery. Much has been said about the degree of control required before unlawful actions performed by private entities can be attributable to the state through the nexus of control. From Nicaragua to Tadić, courts have vacillated between “effective control … in the course of which the alleged violations were committed” and a lesser requirement of “overall control going beyond mere financing, training or equipping”.Footnote 66
Under the Tadić test it would be possible to impute the acts of PMCs engaged in torture during interrogation to the territorial state “without having to show that the State instructed the PMC to engage in torture”.Footnote 67 In the Bosnian genocide case, the ICJ adopted the constructive agency approach, stating that, provided that “the person, groups or entities act in ‘complete dependence’ on the State of which they are ultimately an instrument or agent”, their actions can be attributed to the state.Footnote 68 In human rights tribunals, a “continuous and uninterrupted link of responsibility” was sufficient to impute illegal detention by a separatist regime to the state.Footnote 69 The ICJ noted in Corfu Channel on the issue of “exclusive territorial control” that “the territorial State need not necessarily know that private actors are likely to commit unlawful acts”, but “the riskier the situation in which PMCs are tolerated, the stronger the due-diligence obligation for the territorial State is”.Footnote 70
Many Wagner / Africa Corps employees are hired by state departments to carry out functions that are traditionally reserved for the armed forces. Where through instructions, directions or control a relationship can be shown between the state and a Wagner / Africa Corps operative’s conduct or omissions, that breach of IHL or IHRL can be imputed to the state.Footnote 71 In each situation it will be a factual inquiry to determine whether the Wagner / Africa Corps employees are under the hiring state’s control. Even when Wagner / Africa Corps’ actions “are beyond the scope of military orders”,Footnote 72 those actions can still be attributed to the hiring state – provided that there is state control, direction or instruction. Consequently, where a hiring state fails to give instructions to Wagner / Africa Corps employees on the legal limitations of the laws of war, or the state allows violations to occur and does not intervene and prevent the violations, that behaviour could be attributed to the hiring state.Footnote 73 In short, when a state uses the services of a PMC, which may not necessarily be an agent of the state but which is under its “sufficient influence and control” and consequently is implementing its policies, any and all wrongful acts committed by that PMC will attract state responsibility.Footnote 74 When one considers that Wagner / Africa Corps have been enlisting convicted criminals directly from prisons, with a promise of commuted sentences or a full pardon and expunged criminal records, this alone constitutes a “serious breach of due diligence” in the vetting process of the hiring and territorial state to allow such individuals to participate directly in hostilities with little or no training on IHRL or IHL.
Imputing responsibility for acts or omissions performed in the absence of official authorities
In times of revolution, foreign occupation or armed conflict, is it possible to find “private individuals exercising government functions, not at the behest or authorization of government, but in the absence of official authorities” and upon their own initiative because of necessity?Footnote 75 According to ARSIWA article 9, state responsibility may be imputed to a state if the circumstances prevailing at the time were such that the public function was being exercised in the absence of official authorities in a time of necessity.Footnote 76 For the attribution of state responsibility under article 9, the conduct must be a government function, must be performed in the absence of any government authority, and circumstances at the time must necessitate such action. A state that fails to perform its policing functions may be liable for offences committed by private operatives performing those functions in the absence of a local police force. The level of involvement of the Wagner / Africa Corps group in the CAR, including that its members hold powerful positions in the CAR government and customs service and issue CAR documents, may be grounds for imputing state responsibility for their acts and omissions to the CAR.
Imputing responsibility based on conduct or omissions adopted by a state
As a rule, the actions of private individuals cannot be attributed to a state for imputing state responsibility. That said, ARSIWA article 11 extends the mantle of state responsibility to cover instances where the state acknowledges and adopts the particular conduct or omissions, even if the actor is not an authorized state organ or is under the state’s control.Footnote 77 For state responsibility to be invoked using article 11, a clear and unequivocal acknowledgement by the state that it “identifies with the conduct in question and makes it its own” needs to be demonstrated.Footnote 78 This is essentially ex post facto authorization. When Syria, Libya, the CAR, Sudan, Mali and Mozambique tolerated Wagner / Africa Corps members in their territory performing traditionally military functions and, by their words or conduct, endorsed their activities, this amounted to the state identifying with the conduct of these employees; by so doing, they assumed responsibility for their actions (including any violations of IHL and IHRL law).
Concluding thoughts on the attribution of state responsibility under the ARSIWA
Whether Wagner / Africa Corps employees are officially incorporated into a state’s armed forces or not, once they act with an apparently official capacity, the state hiring them bears full state responsibility for their acts and omissions when they violate IHL and IHRL. It does not matter that they are non-state actors, provided that they are carrying out a public function under apparent government authority. They need not even be formally incorporated into official structures to attract state responsibility if they are under the control, direction or instruction of the state. They may act in the absence of government authorities because of necessity; all that is required is that the state identifies with and adopts the conduct. It is insufficient for the state to point to domestic military regulations, domestic limits to Wagner / Africa Corps’ authority or contradictory instructions, as all acts and omissions will attract state responsibility – even those that are ultra vires acts. When a state contracts Wagner / Africa Corps members to carry out governmental duties or allows them to take on those roles, it bears all state responsibility for their actions – including those that violate IHL and IHRL. This is a warning to states that use the services of Wagner / Africa Corps of the potential attribution of state responsibility that they face.
We would argue that the actions or omissions of private operatives such as Wagner / Africa Corps forces can be imputed to the “delinquent” states that contract their services. With imputation, delinquent states can then be held accountable for the unlawful activities carried out by private operatives. The difficulty which arises in many instances is that the victims of these abuses of IHL and IHRL are nationals of the delinquent state. To access relief, redress or accountability for these abuses, they need an “injured” state to take up their cause. We now turn to exploring how the international community can invoke the state responsibility of these delinquent states on behalf of their injured nationals to end impunity, pursue accountability and ensure effective remedial action for the victims.
The communitarian invocation of state responsibility on behalf of nationals of delinquent states in the African context
According to ARSIWA article 48(1)(b), “any State can invoke the responsibility of delinquent States when the breached obligation is owed to the international community as a whole”.Footnote 79 This phrase references what is understood under international law as a breach of peremptory norms (obligations) of general international law (jus cogens). This breach has such far-reaching consequences that they give rise to what are called obligations erga omnes partes (obligations owed to the international community as a whole). In Barcelona Traction, the ICJ endorsed the notion of certain obligations which “all States can be held to have a legal interest” in the protection of.Footnote 80 These peremptory norms, established in the interest of and owed to the international community as a whole, give rise to multilateral rights and obligations which entail a “recognised legal interest of each of its members to invoke compliance with it”.Footnote 81 The legal regime created by these multilateral rights and obligations ensures that no legal black holes exist where perpetrators can find impunity and where victims are deprived of legal protection.Footnote 82
Which international norms give rise to obligations erga omnes partes?
Crawford’s commentary on the ARSIWA notes that the source of these obligations erga omnes partes could derive from “multilateral treaties or customary international law”, and he references the ICJ’s declarators that “outlawing acts of aggression and genocide” and “the basic rights of the human person, including the protection from slavery and racial discrimination” and the “right to self-determination” would all fall under this banner.Footnote 83 In both IHL and IHRL treaties and customary international law, these norms are flagged for special protection.
Common article 3, found in all four of the Geneva Conventions and which has now achieved customary international law status, outlines what are considered the absolute minimum fundamental protections that should be afforded to all individuals (civilians or non-combatants) and in all contexts of armed conflict or internal disturbances, irrespective of the nature or classification of the armed conflict.Footnote 84 Common article 3 prohibits certain acts:
“(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”Footnote 85
Forced displacement, torture, extrajudicial killing, arbitrary and inhumane detention of civilians, and the indiscriminate firing on and mining of civilian areas are violations of IHL and IHRL that have risen to the level of customary international law.Footnote 86 These egregious crimes involve a breach of an obligation which is owed to the international community.Footnote 87 Consequently, all states, irrespective of whether they or their nationals have been the target of such a breach, would be permitted to invoke “communitarian State responsibility”.Footnote 88
Under IHRL, peremptory norms of general international law can be found in a variety of multilateral treaties.Footnote 89 They are often flagged by the fact that they are considered non-derogable human rights; these include the right to life, freedom from torture, freedom from slavery and freedom from retroactive application of criminal law.Footnote 90 Not even the fight against terrorism is a ground for violating these non-derogable rules of jus cogens, as per the 1999 Organisation of African Unity Convention on the Prevention and Combating of Terrorism and its 2004 Protocol. These best practices are set out in the UN Draft Convention on Private Military and Security Companies and are reiterated in the Montreux Document as a form of non-binding law.Footnote 91 All these obligations on the territorial state are suspended only in a situation of foreign military occupation, and are endorsed by the African Commission on Human and Peoples’ Rights.
How do third-party states enforce due diligence and observance of peremptory norms where private actors are involved?
Under IHRL there is an obligation upon all states to exercise due diligence within the means at their disposal to not only prevent abuses but also to investigate and punish offenders and provide reparations for all individuals in their territory and subject to their jurisdiction, even if these violations are carried out by private individuals. Fulfilling the due diligence standard requires qualified legal expertise to independently investigate, collect evidence and prosecute perpetrators immediately after the acts are committed. Due diligence provision of effective remedies entails bringing the perpetrators to justice and ensuring full reparations for the victims, including financial restitution, rehabilitation, public apologies and memorials, the introduction of remedial laws and policies, and guarantees of non-repetition. Moreover, under the customary principle of concurrent causation which is endorsed by the International Law Commission, any of the individual states responsible can be expected to provide full reparations.
In the context of abuses of non-derogable human rights perpetrated by private actors such as PMCs, the African Commission on Human and Peoples’ Rights demands that a state “must interpose itself between potential perpetrators and victims” to prevent human rights abuses – even if the PMCs concerned may be considered part of the state apparatus. So even when PMCs are not integrated into national armed forces but are working for corporations to provide security, the state nevertheless has obligations to exercise due diligence under IHRL. Moreover, violations of non-derogable rights perpetrated by PMCs would not be protected by any immunity agreements between the host and hiring states; the states from where these PMCs hail, together with the state in whose territory they are active, would bear responsibility to exercise effective control over creation, licensing, and export authorisations of PMCs and then would follow the obligation to investigate abuses and prosecute perpetrators. This is especially necessary when PMCs are given combat functions, arrest powers, management of detention facilities, interrogation services and law enforcement functions, where it is easy to violate the rights to personal liberty and to judicial protection. The systematic failure of a state to prevent recurring violations by PMCs amounts to an abuse of due diligence through intentional and systematic inaction.
ARSIWA article 48 “give[s] teeth to communitarian norms” because states can use the ICJ to bring an application for judicial remedies in the common interest of the international community against delinquent states.Footnote 92 As Simma J pointed out, “the implementation of a State party’s international legal duty to ensure respect by another State party for the obligations arising under humanitarian treaties by way of raising it before the ICJ is certainly one of the most constructive avenues in this regard”.Footnote 93 Through the ARSIWA, international law has made it possible for the community of states to put pressure on delinquent states, where the latter have formally incorporated Wagner / Africa Corps forces into their armed forces, or where Wagner / Africa Corps are non-state actors engaged in activities traditionally carried out by the regular armed forces, are acting under the states’ control or instruction, or where the state acknowledges and adopts the conduct (as is the case in Syria, Libya, the CAR, Sudan, Mali and Mozambique).
Once a state clothes Wagner / Africa Corps with an apparent official capacity to carry out a public function, such as activities related to policing, prisons, judicial administration or the armed forces, or there is any treaty obligation, state responsibility is triggered if the state elects not to intervene and prevent violations. When states contract PMCs they are obligated to limit the extent of their activities, vetting individuals for prior violations and monitoring and ensuring compliance with international law. States cannot renounce responsibility for violations of international law committed by Wagner / Africa Corps forces on the grounds that the acts are outside the latter’s authorized duties or are prohibited by domestic military regulations, ultra vires, performed in the absence of any government authorities or are disowned by the state. Where violations occur, states are obligated in domestic legislation to criminalize such behaviour, prosecute those that carry out the violations and provide mechanisms for victims to obtain reparations.
Any state can request before the ICJ “cessation of the internationally wrongful act, and assurances and guarantees of non-repetition”, together with reparations on behalf of the beneficiaries for the obligations breached. Admittedly, the “will and power to make use of the communitarian vehicle remains at the discretion of each member of the international community”.Footnote 94 Historically, non-injured states have been reticent to bring claims against other states based on a violation of some communitarian norm without good reason.Footnote 95 The jurisprudence of the international court is clear that non-injured states enjoy legal standing to enforce communitarian norms and that to bring “a case in the interest of obligations erga omnes partes is no longer controversial”.Footnote 96 Most recently, the erga omnes partes obligations (this time under the Genocide Convention) have seen non-injured third-party states like The Gambia and South Africa bring cases before the ICJ using this communitarian invocation of state responsibility.
Of course, any state can remind a defaulting state of its international law obligation in terms of treaty law or customary international law through diplomatic measures. Since many of these delinquent states depend on other countries for aid and trade, it may also be effective to impose sanctions on those that make use of Wagner / Africa Corps forces. All these consequences, be it an order from the ICJ, diplomatic pressure or sanctions, depend on being able to link the actions of the Wagner / Africa Corps forces to the states that are employing their services, organizing them or allowing them to function on their territory.Footnote 97 However, given the widespread and flagrant violation of many of the prohibitions contained in common article 3 – torture, extrajudicial killing, arbitrary and inhumane detention of civilians, the indiscriminate firing on and mining of civilian areas and the non-derogable IHRLs – it behoves any and all states to approach the ICJ and invoke ARSIWA article 48. This would be on behalf of the victims of the violations perpetrated by Wagner / Africa Corps forces in Africa against the states that are hiring those forces and against Russia, which is now claiming some control over the Group and its Africa Corps iteration.Footnote 98 Finally, the responsibility of a PMC’s state of origin may arise, particularly because in the real world, such a state may be the only one that is effectively capable of controlling the activity of its own national PMCs.Footnote 99
Conclusion
The deployment of Wagner / Africa Corps in Syria, Libya, the CAR, Sudan, Mali and Mozambique has been synonymous with the indiscriminate targeting of civilians, torture, extrajudicial executions and arbitrary and inhumane detention. Sanctions, travel bans and the freezing of assets have not eradicated these violations of the peremptory norms of IHL and IHRL. African leaders have persisted in their dealings with the Wagner Group, under its new brand of the Africa Corps, and its prevalence on the ground in Africa is predicted to balloon, fuelled by the continent’s rich reserve of mineral resources.Footnote 100 Against this backdrop, the perpetration of these egregious IHL and IHRL abuses is likely to persist with impunity, in particular when the territorial state has contracted the services of the perpetrators and is unwilling or incapable of gathering the evidence required to pursue individual criminal prosecutions.
The ARSIWA provide a means for the international community to pursue state responsibility on behalf of victims of these sorts of abuse through the invocation of communitarian norms. Through its article 48, delinquent states can be brought before the ICJ for their failure to prevent or prosecute the types of IHL and IHRL violations perpetrated by Wagner forces and now the Africa Corps. These violations are imputable (through ARSIWA articles 4, 5 and 9) to the territorial state when Wagner / Africa Corps acted, or omitted to act, with apparent official capacity. Moreover, any subsequent acknowledgement of actions or toleration of abuse by the state is sufficient to incur state responsibility. The moment that a state allows Wagner / Africa Corps to oversee detention centres or engage in armed encounters with civilians, its due diligence obligations increase: states would be obligated to vet Wagner / Africa Corps employees (especially when they are reported to be recruiting convicted criminals), monitor their activities, and prevent and prosecute violations of IHL and IHRL. The due diligence requirements under IHRL demand that states that contract PMCs ensure that these companies are aware of and comply with the applicable IHL and IHRL regimes. States should be demanding full compliance with the Montreux Document and the UN Draft Convention on Private Military and Security Companies before awarding these lucrative private security contracts.Footnote 101 A state remains obligated to prevent violations of the peremptory norms of general international law, at the very minimum; it is no defence (pursuant to ARSIWA articles 7 and 8) for it to argue that the PMCs were acting ultra vires or outside the scope of military orders.
In short, any state employing or supplying PMCs or adopting an indifferent attitude to their violations of IHL and IHRL in its territory should be aware that under the ARSIWA, it can be held to account. When such violations are contrary to the peremptory norms of international law, it behoves all states to use the ARSIWA to invoke the state responsibility of these delinquent states that fail to take their due diligence obligations seriously, or that openly facilitate or permit the violation of these norms on their territory by Wagner / Africa Corps. Recently, we have seen an increase in “altruistic”, non-injured third-party states bringing cases before the ICJ against delinquent states, citing a duty to protect obligations erga omnes partes (in these recent cases, pursuant to the Genocide Convention).Footnote 102 This trend, which is not without potentially significant economic and political costs for the third-party state, is giving rise to what Simma J envisaged 30 years ago as international law “finally overcoming the legal as well as moral deficiencies of bilateralism and maturing into a much more socially conscious legal order”.Footnote 103 In the words of the International Criminal Tribunal for the former Yugoslavia regarding violations of the prohibition against torture:
“the violation of such an [erga omnes] obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.”Footnote 104
Those states that continue to use Wagner / Africa Corps should know that they can find themselves before the ICJ to answers questions of state responsibility to victims. Allies of these African states should be using diplomatic channels to discourage the use of Wagner / Africa Corps and encourage adherence to the Montreux Document in this more socially conscious legal order. To end impunity for violations of IHL and IHRL, we need to make unregulated and ill-disciplined PMCs unemployable and isolate the delinquent states that use their services. If we have learned anything from the long history of western PMCs operating in Afghanistan and Iraq, it is that states that employ the services of PMCs must be hold accountable for their violations of IHL. Accountability must include access to justice and effective remedies for victims, and may include cessation of continuing violations, compensation, rehabilitation, satisfaction, guarantees of non-repetition and a commitment to take disciplinary or penal action against those responsible for the harm.Footnote 105 Contracting out state functions to proxy groups cannot be a licence to turn a blind eye to violations of international criminal law.
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