Can the Wagner Group Be Prosecuted Post-Prigozhin?

• Vladimir Putin’s admission that Russia funded the Wagner Group begs a reevaluation of the paramilitary group’s role in Russia’s military and strategic framework.
• Wagner and other Russian paramilitaries are implicated in thousands of war crimes committed in Ukraine, an unprecedented case load far beyond the usual capacity of Ukrainian courts and the International Criminal Court.
• In prosecuting paramilitary war crimes, it may be difficult to meet the high standard necessary to prove state responsibility, but paramilitary members may bear individual criminal liability for atrocity crimes.
• Under universal jurisdiction, a country can prosecute the perpetrators of war crimes—regardless of where the crimes were committed or the nationalities of the people involved.
• Six countries are arguably most conducive for prosecuting atrocity crimes in Ukraine: Germany, Sweden, France, Finland, the Netherlands, and Norway.

In late June 2023, Russia’s President Vladimir Putin made an extraordinary confession. Two days after Wagner Group chieftain Yevgeny Prigozhin abandoned his mutinous “March for Justice” on Moscow, Putin admitted that “the maintenance of the entire Wagner Group was fully provided for by the state.” After nearly a decade of denying that the Kremlin had backed the operations of one of the world’s most notorious paramilitaries, Putin disclosed that Russia’s Ministry of Defense poured nearly $1 billion into support for the Wagner Group’s operations from May 2022 to May 2023.

The admission was as perplexing as it was paradoxical. Putin’s carefully crafted speech seemed designed to draw a bright line between the eight years preceding Russia’s February 2022 invasion and the subsequent period of overt support. On one hand, this public acknowledgment was meant to reshape the narrative around the Kremlin’s backing of irregular forces, a move born out of strategic necessity to preserve the sanctity of a Russian government challenged by its own lawlessness. On the other, it starkly contrasted with years of official denials and disavowals, and raised significant questions about state complicity in the numerous alleged war crimes linked to Wagner’s operations.

Prigozhin’s death, along with those of his right-hand man Dmitry Utkin and Wagner’s chief of logistics Valery Chekalov in a mysterious plane crash in August 2023, capped a tumultuous period of transition for Russia’s irregular forces, removing key figures capable of challenging the Kremlin’s authority. But the decapitation of Wagner’s leadership also left open the question of whether and how the Wagner Group might be held to account for its alleged misdeeds in Ukraine, Syria, and Africa.

Significantly, the period of support Putin outlined in his speech neatly elided a March 2022 mass atrocity incident in Mali in which Wagner forces were implicated in the extrajudicial killings of 500 unarmed civilians. Putin’s careful bracketing of the narrative also seemed to contradict the statements of his subordinates in the defense ministry. Notably, Gen. Vladimir Alekseeyev, deputy chief of Russia’s GRU intelligence wing and lead coordinator of Kremlin-backed irregular forces, said in a June 24 videotaped statement that he had worked closely with Wagner forces in 2014 and 2015.

The Kremlin’s calculated ambiguity had long served to shield it from legal and moral accountability for Wagner’s actions. Putin’s admission pierced this veil, implicating the Russian state directly in the financing and operational support of a group accused of egregious human rights abuses. The disclosure necessitates a reevaluation of the Wagner Group’s role and the extent of its integration into Russia’s military and strategic framework.

In September 2023, New America’s Future Frontlines program embarked on a new phase of research in partnership with the War Crimes Research Office (WCRO) at American University’s Washington College of Law and the Future Security Initiative and Information Competition Lab at Arizona State University. The goal was to identify a viable set of strategies for effectively litigating charges against suspected perpetrators of atrocity crimes linked to the Wagner Group and similar irregular paramilitary forces sponsored by the Russian Federation.

Developed in consultation with our partners at C4ADS and other allies, our approach to accountability is multi-pronged. First, we collected, structured, and analyzed open source data about Wagner Group operations with the aim of mapping its command structure and operational culture. Second, we created a publicly available archive of Wagner Group related social media accounts on Telegram and VKontakte that provide a welter of potential evidence. Third, we conducted a study on the prospects of pursuing criminal charges against members of irregular armed groups through extraterritorial forms of jurisdiction that permit the prosecution of grave crimes committed abroad.

This briefing paper is the first in a series to summarize our initial findings on the question of pursuing criminal charges. It briefly lays out the challenges inherent in pursuing justice when it comes to suspected Wagner atrocities in the current context and sums up insights from the War Crimes Research Office’s assessment of the legal landscape.

From its inception, the Wagner Group was designed to insulate the Kremlin from direct responsibility for its actions. Plausible deniability was the sine qua non of the Wagner Group’s operations, allowing Russia to project power covertly while officially maintaining a distance from the paramilitary group’s often brutal activities. Although the mutiny led to the Wagner Group’s de facto disbandment, the murky legal status of Russia’s premier paramilitary remains a matter of debate, meriting a serious assessment of the implications for international justice.

The international community has struggled to address the legal implications of the blurred line between state and private actors in the conduct of conflict. Traditional frameworks for holding states accountable for the actions of paramilitary groups generally rely on clear evidence that the state empowered the groups to exercise government authority or that the groups were acting under its instruction or under its direction or control. However, the covert nature of these relationships often obscures such evidence, complicating efforts to pursue legal accountability. Putin’s admission, while unprecedented, provides a rare glimpse into the mechanisms of state support for the operations of irregular armed forces, potentially opening new avenues for legal scrutiny and prosecution.

Can justice be served for the victims of Wagner’s actions? Will the Kremlin ever face an accounting for its role in supporting irregular paramilitary forces? What are the prospects for pursuing prosecutions? Answers to these questions depend as much on the alleged crime and available evidence as they do on the international community’s will to confront the profound changes in the global order that have eroded the power of law to constrain the unjust use of force.

Recent developments in the Israel–Palestine conflict make the need for answers all the more urgent. The October 7 attacks on Israel and the subsequent war in Gaza have led to incalculable suffering and destruction, with no seeming end in near sight. While the news that International Criminal Court (ICC) chief prosecutor Karim Khan is seeking arrest warrants for Hamas leader in Gaza Yahya Sinwar and Israeli Prime Minister Benjamin Netanyahu on charges of war crimes and crimes against humanity has provoked controversy, it has also reinvigorated the ICC’s mandate.

At the same time, the heated response from the White House and members of Congress to the ICC prosecutor’s actions is a sobering reminder that the embrace of exceptionalism by powerful states has contributed in no small measure to the decay of international stability. The United States is not alone, of course. Russia’s response to the ICC charges against Putin for crimes against humanity is equally deserving of opprobrium.

States can posture and ignore the actions of tribunals as they see fit. But history shows that accused war criminals take seriously the restrictions implied by the charges against them. There is something to be said for the deterrent effect of international justice when it is applied equally and even-handedly.

Conventional wisdom would seem to suggest that the decapitation of Wagner’s senior leadership renders the question of justice moot. Implicit is the suggestion that the buck stopped at Prigozhin and Utkin when it came to command and control over the paramilitary. But that logic does not scan.

Through words and deeds, Prigozhin made clear that Wagner was substantially dependent on Russia’s defense ministry for supplies and transport from at least 2022 forward. Accounts provided by Wagner Group insiders, current and former Russian officials, and written testimony submitted to the ICC by former Wagner Group commander Igor Salikov indicate that Kremlin support for Wagner’s operations stretched back to the paramilitary’s formation in 2014.

Our own independent analysis of more than 160 leaked personnel records indicates that from 2014 to 2021, some 13,000 individuals were on the payroll of Wagner-linked front companies that contracted with the defense ministry. More than 900 individuals answered to the title “commander,” from squad leaders to tactical chiefs. Of those, we identified at least 22 Wagner commanders whose careers with the organization merit closer scrutiny. Notables include Wagner’s former longtime executive director Andrey Troshev, who was tapped by Putin for a leadership position in Wagner’s competitor, Redut.

While it may be difficult to meet the high standard necessary to prove State responsibility, members of irregular paramilitary contingents found to be involved in the commission of atrocities may bear individual criminal liability for those crimes. Russian government officials contributing to or supporting the criminal activity of such contingents, a concern since the start of hostilities in Ukraine in 2014, may also be liable under international law.

In early February 2023, Ukraine’s Office of the Prosecutor General (OPG) brought criminal charges against Prigozhin, saying that he and the Wagner Group are responsible for thousands of war crimes. A month later, a Ukrainian court convicted and sentenced a Belarusian national fighting as a mercenary for the Wagner Group, marking a major development that could serve as a model for future cases. The OPG has also charged Wagner Group fighters with committing atrocity crimes in the rural town of Motyzhyn, not far from Bucha and about a 45-minute drive west of Kyiv. Atrocity crimes have been alleged across Ukraine in areas where Wagner operated, including near Popasna, Kharkiv, Mariupol, Lysychansk, Bakhmut, and Soledar.

But Ukraine’s prosecutors are facing a brutal onslaught: More than 122,000 war crimes were under investigation as of February 2024, including murder, torture, rape, child abduction, and forced deportation; the number of cases will only grow with time. Authorities are investigating these cases not only during a war, but with limited options under Ukrainian law and significant capacity constraints within its judicial system.

The ICC, traditionally a venue for prosecuting war crimes, has the capacity for a limited number of cases. In the case of Russia, it has focused its attention on the highest levels, issuing a very rare arrest warrant for Putin, a sitting head of state, and more recently in March 2024 against two Russian military officers implicated in attacks on civilian infrastructure. Moreover, the prosecutor’s intervention in the Israel-Palestine conflict suggests that it will be under particular pressure to prioritize efficient allocation of its resources.

Efforts to pursue accountability for atrocities committed by irregular armed groups like the Wagner Group have been stymied in part by a shortage of viable judicial venues. Given the limited number of cases that the ICC can pursue and the barriers to pursuing cases in Ukraine, neither option “is enough to address the unprecedented scale or complexity of atrocity crimes committed in the conflict” in Ukraine.

There is a third path. Under universal jurisdiction, a country can prosecute the perpetrators of war crimes, regardless of where they were committed or the nationalities of the people involved. Several countries, including Germany, Sweden, and Norway, have started structural investigations into atrocities committed in Ukraine—investigations focused on a particular conflict or situation, even before the perpetrators have been identified. How the investigations and prosecutions proceed, and the outcomes they reach, will be shaped by the legal system and procedures of each country, as well as each country’s interest and institutional capacity to prosecute atrocity crimes. The following issues will be key for extraterritorial investigations of atrocity crimes involving irregular Russian forces.

• Liability: Countries recognize and define different ways to attach criminal liability to individuals, which affects the prosecution of atrocity crimes. Many countries, including Germany, Finland, France, and Sweden, recognize the liability of commanders and superiors for the actions of their subordinates, with notable variations among them. Finland, France, the Netherlands, and Norway, among others, also recognize corporations as entities that can be charged with crimes, with national variations.
• Evidence: A firehose of evidence is coming out of Ukraine. Crucial evidence may involve testimony by experts, child witnesses, or via video-link to distant witnesses. Much of the evidence is digital; some was posted on social media, some obtained under questionable circumstances, and some collected by NGOs. Protocols for digital evidence are evolving along with the technology. Ukraine’s Prosecutor General has endorsed the 2022 Berkeley Protocol on Digital Open Source Investigations, and Ukrainian investigators, prosecutors, and police are putting it to use to ensure that evidence is admissible in international courts. Countries with broad standards for evidence will be more conducive for prosecution.
• Jurisdiction: Most countries impose certain limits on universal jurisdiction, requiring, for example, political approval or some sort of connection (nexus) to their own country, such as involvement of a citizen. In addition, most countries can prosecute their own citizens for crimes committed abroad (known as active personality jurisdiction) and, when conditions are met, prosecute foreign nationals for crimes committed abroad against their own citizens (passive personality jurisdiction).
• Institutional capacity and experience in prosecuting and trying atrocity crimes: Certain countries, such Germany, Sweden, France, the Netherlands, and Norway, have dedicated war crime units and significant experience investigating, prosecuting, and trying such crimes.

Political support and public sympathy for Ukraine, as well as financial resources, will be necessary to carry out and complete the significant investment of time, money, and effort to investigate, prosecute, and try war crimes. Litigation strategies will need to consider legal procedures that vary by country, including laws concerning trial in absentia, immunity for state officials, rules pertaining to sexual and gender-based crimes, and penal sanctions for war crimes.

After considering 14 countries as potential jurisdictions for initiating investigations and prosecuting members of irregular armed groups for atrocity crimes committed in Ukraine, we argue that six offer the most conducive context: Germany, Sweden, France, Finland, the Netherlands, and Norway.

All share flexible universal jurisdiction laws, while their broad standards for criminal procedure and evidence allow prosecutors to introduce most forms of evidence. All have supportive sociopolitical and economic environments. Most have specialized war crimes units, and some have already launched structural investigations into potential war crimes in Ukraine.

Germany

Germany may be the strongest candidate: It attaches few restrictions on its exercise of universal jurisdiction. In cases involving atrocity crimes, investigations may be structural, and the accused does not have to be physically present during the investigation (but must be for the trial). A connection (nexus) to Germany is not necessary; nevertheless, without such a connection, the prosecutor is not required to investigate and prosecute and in practice is far less likely to do so. Germany’s laws allow prosecutors to introduce a wide variety of evidence, including digital evidence, evidence collected from NGOs, illegally obtained evidence (under certain circumstances), video-link testimony, and expert opinion, subject to a judge’s approval.

The broad scope of German liability, which recognizes the liability of aiders and abettors and those who commit crimes indirectly through others, gives prosecutors a wide net under which to investigate and prosecute members of irregular armed groups for their actions in Ukraine. With calls to live up to its national policy of preventing atrocities and improving accountability, Germany has dedicated an estimated 18 prosecutors to war crimes and consistently investigated and prosecuted individuals of different nationalities for war crimes, especially since 2017, which marked the start of a sharp increase. Germany’s minister of justice has made it clear that their structural investigation is intended not only to assist Ukraine and the ICC but also to identify suspects for potential prosecution in German courts.

Sweden

Placing few restrictions on universal jurisdiction, Sweden also has a strong track record of prosecuting war crimes, with an experienced war crimes team of 10 prosecutors and 18 police officers. The Swedish Prosecution Authority opened a structural investigation into “grave war crimes” in Ukraine in April 2022, just weeks after Russia’s invasion began.

France

With an experienced war crimes prosecution unit, France is another strong candidate, particularly regarding atrocity crimes committed against French citizens. Some paramilitary members fought with the French Foreign Legion and may be French citizens, which would allow prosecution under active personality jurisdiction. While France used to restrict the use of universal jurisdiction more tightly than other countries, those restrictions have eased recently. For instance, the requirement that the suspect reside in France has been interpreted flexibly to allow consideration of factors that can prove a sufficient tie to France. In addition, France has repealed the previous requirement that the crime be criminalized in both France and the country where it occurred.

France has opened multiple investigations into atrocity crimes in Ukraine—two of them following the deaths of French–Irish journalist Pierre Zakrzweski near Kyiv and French journalist Arman Soldin in a Russian rocket attack near Bakhmut. Among the countries under discussion, France imposes what may be the toughest sanctions on perpetrators and has the most expansive approach to corporate criminal liability. Finally, France has been actively attempting to counter Russian influence in francophone Africa, focusing on the Wagner Group in particular.

Finland, the Netherlands, and Norway

All three have broad universal jurisdiction laws, with some conditions that vary by country. The Netherlands has a strong history of utilizing universal jurisdiction and investigating and prosecuting atrocity crimes. Norway has commenced a structural investigation into atrocities committed during the conflict in Ukraine, based on interviews with refugees. Finland does not conduct structural investigations into atrocity crimes. But in December 2023 authorities in Helsinki launched an investigation into the actions of former Wagner fighter and Rusich paramilitary commander Jan Petrovsky in Ukraine after detaining him at the Helsinki airport on a visa violation.

The Wagner Group’s implosion has exposed the inner workings of its command structure and operational culture and shed light on the paramilitary’s relationship with the state, opening the way for more serious legal inquiry.

Pursuing accountability for war crimes committed by Russia’s irregular forces in Ukraine and globally will be a complex and prolonged endeavor, likely to span years. But bolstered by a robust network of NGOs, university legal clinics, and international bodies, the increasing role of national courts in trying atrocity crimes offers a promising way forward. Justice is possible.