Wagner Group fighters are often called mercenaries — is that an accurate description?

No. According to international humanitarian law, an individual must fulfill six criteria to be categorized as a mercenary. Article 47 of Additional Protocol I of the Geneva Conference says, "A mercenary is any person who:

1) Is specially recruited locally or abroad in order to fight in an armed conflict;

2) Does, in fact, take a direct part in hostilities;

3) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party;

4) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

5) Is not a member of the armed forces of a party to the conflict; and

6) Has not been sent by a state which is not party to the conflict on official duty as a member of its armed forces.

These requirements are cumulative, which means that they must be applicable for an individual to be categorized as a mercenary."

Katharina Stein is a research assistant at the Institute for Public Law at the University of Freiburg in Germany and is currently writing her dissertation on the role of private militias in armed conflict. Stein tells DW: "A great many such private military contractors fail to fulfill those criteria. If you look at Syria for instance, you could describe it as an internationalized armed conflict in which Russia is involved. That means none of the Russians fighting there can be defined as mercenaries."

The most difficult criteria to fulfill, and not just for Wagner Group fighters but all potential mercenaries, is the third point, says Stein — namely, that of a substantially higher amount of compensation as compared with members of the national army.

Wagner fighters are not mercenaries by definition, but rather members of private military companies. Where did these get their start?

Many Western countries privatized arms manufacturing after the end of World War II, the privatization of military services followed.

When the Cold War came to an end in 1990 and the United States, United Kingdom and the former Soviet Union began downsizing their armies, many well-trained soldiers were left without work. Those individuals found new homes at private military companies (PMCs) and were often contracted by those same countries to intervene in lower-intensity conflicts to allow the countries themselves from getting involved militarily.

"Sometimes private military contractors are companies embedded within other far larger business structures offering a number of services," Stein says. "We go in, free a hostage, and get out. Or we train the military." 

What are the advantages of hiring private military companies?

It is often a classic case of cost-effective outsourcing that attracts states to what appears to be an inexpensive alternative to a full-blown army.

"First of all they are far less expensive, because I don't have to train them. I don't have to pay for their retirement. I don't have to pay them when they get sick. I don't have to commit to paying them for 10 years, instead I just pay them to do one job — to get something done, say, in three months' time," says Stein, the international humanitarian law expert. 

The US, for instance, invested some $300 billion (€275 billion) in 12 private militias between 1994 and 2007. That is an awfully large investment, nevertheless, a good one in the eyes of most countries. "Contractors are highly specialized, well-trained and bring their own equipment. I basically pay for what I get and have no further costs," Stein adds.

But above all, private military companies take care of the dirty work, much like the Wagner Group has been doing in Syria and Ukraine. Dead or injured contractors don't trigger the same domestic debates that dead soldiers do. And responsibility for, say war crimes, can be more easily brushed aside.

That is a central argument for Stein: "You can always say it wasn't us, break the direct chain of responsibility. PMCs can always be contracted if a parliament cannot be convinced to deploy an army."

Still, it is not always advantageous for the state to relinquish its monopoly on power, as was shown by Wagner troops marching through Russia toward Moscow last weekend — with a PMC mutinying against its own country for the first time.

Can private military companies be held criminally responsible for their actions?

As a rule, PMCs are difficult for states to control as they often operate in murky legal waters and feel less obligated to uphold norms or conduct themselves according to international laws of war.

One of the best examples of such behavior was the 2007 massacre of 17 Iraqi civilians by fighters from the private US security company Blackwater in Baghdad. Four of the men responsible for carrying out the killings were pardoned by US President Donald Trump in 2020.

"The criminal prosecution of PMCs in the countries where they are deployed almost never happens. Over the past few decades, the only known criminal convictions stemmed from the failed 2004 coup d'état in Equatorial Guinea," says Stein. "Among others, Simon Mann, co-founder and CEO of Executive Outcomes and Sandline International, was sentenced to 34 years in prison, first in Zimbabwe and then Equatorial Guinea after he was extradited. He was pardoned by [Equatorial Guinea's] President Obiang in 2009."

The case drew attention above all because it involved Mark Thatcher, the son of former British Prime Minister Margaret Thatcher. Thatcher had given Mann financial support and ultimately paid $590,000 to avoid going to prison.

Could Wagner start a new debate about private military companies?

Stein said she hopes the case of the Wagner Group will force a fundamental shift in thinking about PMCs, and that pressure from society will lead to international regulations governing their deployment. To date, however, any attempts to do so have failed. "There have been several international attempts to create binding contracts for PMCs at the UN level. But these were all blocked, mostly by the US, the UK, South Africa and Israel. Those are the four states that use PMCs most."

Many states like to point to the so-called Montreaux Document passed on September 17, 2008, when it comes to such initiatives. It is the first-ever internationally developed paper — created with the participation of Germany, Ukraine and the US — to define basic rules regulating how states deal with private military and security companies (PMSCs).        

Yet Stein says the document, which seeks to uphold international humanitarian law and human rights, has one major flaw: "It is widely celebrated because it claims to provide some type of regulation. But it is non-binding. It is repeatedly emphasized that no rights or obligations can be inferred from the document. The Montreaux Document is simply about appearances."

This article was translated from German.