Smoke and Mirrors: An Opportunity for Russian State Responsibility Under the International Convention for the Suppression of the Financing of Terrorism
Vol. 44 Associate Editor
Vladimir Putin’s close connection to billionaire Yevgeny Prigozhin and the Wagner Group is one of many factors chipping away at the illusion of Russian compliance with basic principles of international law. The Wagner Group is a private military company that has been accused of committing war crimes in Ukraine. Historically, the Russian government has employed proxy groups in international conflicts to distance themselves from any responsibility for violations of international law. Under the International Convention for the Suppression of the Financing of Terrorism (ICSFT), the Russian Federation cannot be held responsible for direct state financing of terrorist activities. There is compelling evidence, however, that the Russian Federation has breached its obligations under the ICSFT by failing to prevent and suppress Prighozin’s funding of the Wagner Group. Unlawful Conduct of Prigozhin and the Wagner Group Under the ICSFT Under the ICSFT, an individual has committed the offense of financing terrorism if they, “by any means, directly or indirectly, unlawfully and wil[l]fully, provide or collect funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out [acts of terrorism].” The definition of “funds” under the ICSFT is broad, including many different types of financial instruments and other assets. Terrorism is defined under the ICSFT as any “act intended to cause death or serious bodily injury to a civilian . . . when the purpose of such act . . . is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” Evidence suggests that Prigozhin has provided funds to the Wagner Group. After years of denying any connection to the Wagner Group, Prigozhin has recently admitted to being its founder. Although the Wagner Group’s finances have been a longstanding source of international mystery, Prigozhin is known to be the group’s “key financier.” Anecdotal evidence indicates that Prigozhin’s businesses have been used to funnel money from a variety of sources to the Wagner Group. Furthermore, the alleged actions against the Wagner Group in Ukraine, if proven, fit the definition of terrorism under the ICSFT. On November 1, 2022, Ukrainian refugees initiated a civil lawsuit against Prigozhin and the Wagner Group in London’s High Court. During a presentation to the UK Parliamentary Foreign Affairs Committee, one of the victims’ solicitors offered evidence that Prigozhin and his mercenaries engaged in a “campaign of terrorism” with the aim of “spread[ing] terror and chaos in Ukraine.” They specifically alleged that the mercenaries committed offenses including murder, rape, targeting infrastructure, and planting explosives near nuclear facilities. German foreign intelligence has also alleged that the Wagner Group may have been involved in the massacre of civilians in Bucha, where the United Nations High Commissioner for Human Rights has already documented fifty unlawful killings of civilians. Ukrainian officials have removed 458 bodies from the town, 419 of which appeared to have been “shot, tortured[,] or bludgeoned to death.” Russian State Responsibility Under the ICSFT Ukraine could attempt to hold Russia responsible for these atrocities under the ICSFT. In 2017, Ukraine alleged multiple violations of the ICSFT by the Russian Federation during the 2014 invasion of Crimea. The court issued a judgment establishing its jurisdiction to hear the case, holding that “commission by a State official of an offence described in Article 2 [of the ICSFT] does not in itself engage the responsibility of a State” because state financing of terrorism was outside the scope of the ICSFT. It maintained, however, that “all State parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by . . . person[s].” State responsibility could arise from the breach of that obligation. Ukraine cannot hold Russia responsible for breaches of the ICSFT solely based on a state official’s violation of the treaty. Instead, Ukraine should demonstrate that Russia failed to prevent or suppress Prigozhin’s financing of the Wagner Group, thus breaching its ICSFT obligations. Here, “responsibility” can be understood within the broader framework of state responsibility under customary international law. A state is responsible for an internationally wrongful act or omission when it commits an act or omission that (1) can be attributed to the state and (2) constitutes a breach of the state’s international obligations. An act can be attributed to a state if it was committed by an organ of the state or by a third-party under the “effective control” of the state. However, a state can still be held responsible for the actions of individuals not under its “effective control” by failing to act with due diligence relating to parties it has the capacity to influence. In the Case Concerning Genocide, for example, the court held that certain killings committed by the Bosnian Serb Army (VRS) during the Bosnian War could not be attributed to Serbia, as Serbian support for the VRS did not rise to the level of “effective control.” Even so, the court held that Serbia was responsible for breaching its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; Serbia had failed to take any action to prevent the VRS’s crimes, despite having the capacity to influence the VRS through its close political, military, and financial relationships. State conduct constitutes a breach of international obligations if it “is not in conformity with what is required of [the state] by that obligation, regardless of its origin or character.” The “not in conformity” standard is fairly flexible and does not require a state’s conduct to be fully and completely against the obligation, just partly. Here, to trigger Russian state responsibility via a breach of the ICSFT, Ukraine would only need to prove that Russia’s acts or omissions were not in conformity with its obligations under the ICSFT, just partly against them. Russia has failed to take appropriate measures in the prevention of terrorist financing by failing to punish Prigozhin’s illegal conduct, constituting a breach of its obligations under the ICSFT and likely giving rise to state responsibility. Article 359(1) of the Criminal Code of the Russian Federation proscribes the “[r]ecruitment, training, financing or other material support of a mercenary, as well as his use in an armed conflict or military operations[.]” Despite Russia’s capacity and authority to punish Prigozhin under that law, it has not done so. For instance, videos surfaced in September 2022 of Prigozhin recruiting prisoners to join the Wagner Group at a Russian penal colony. This unlawful act was highly publicized and committed on official government property, but Prigozhin faced no repercussions. The deep political ties between Prigozhin and Putin further evidence Russia’s capacity to influence Prigozhin. According to former oligarch and Putin critic Mikhail Khodorkovsky, “[t]he influence of Mr. Prigozhin is approximately equal to the influence of Mr. [Sergei Shoigu], Minister of Defen[s]e, or Mr. [Sergei] Lavrov, Foreign Minister.” Additionally, there have been meetings between Prigozhin and Putin, during which Prigozhin allegedly aired his concerns about how top Russian military officials have handled the war in Ukraine. Media outlets have also reported that Putin secretly awarded Prigozhin Russia’s highest honor, Hero of the Russian Federation, during the summer of 2022. The strong political links between Prigozhin and the Russian state apparatus illustrate that Russia has the capacity to influence him. Russia could curtail Prigozhin’s funding of the Wagner Group’s terroristic activities. Instead, Russia has bestowed him with political influence and accolades. Russia’s failure to prevent Prigozhin from violating the ICSFT is a breach of its treaty obligations, giving rise to Russia’s state responsibility under the ICSFT: It has the capacity to influence Prigozhin, but has not “take[n] appropriate measures ” to prevent and suppress his treaty violations.
 See Putin’s Proxies: Examining Russia’s Use of Private Military Companies: Hearing Before the H. Oversight and Reform Subcomm. on Nat’l Sec., 117th Cong. 1 (2021) (statement of Catrina Doxsee, Assoc. Dir. and Assoc. Fellow, Transnational Threats Project, Ctr. for Strategic and Int’l Stud.) [hereinafter Putin’s Proxies].  Georgi Gotev, Civil Proceedings Launched in UK High Court Against Wagner Group, EURACTIV (Nov. 2, 2022), http://www.euractiv.com/section/global-europe/news/civil-proceedings-launched-in-uk-high-court-against-wagner-group.  Putin’s Proxies, supra note 1, at 1.  Application of International Convention for Suppression of Financing of Terrorism and of International Convention for Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Judgment, 2019 I.C.J. 558, ¶ 59 (Nov. 8) (holding that State financing of terrorism falls outside the scope of the ICSFT).  International Convention for the Suppression of the Financing of Terrorism art. 2(1), opened for signature Jan. 10, 2000, T.I.A.S. No. 13,075, 2178 U.N.T.S. 197 [hereinafter ICSFT].  See id. art. 1(1).  Id. art. 2(1)(b)  Cora Engelbrecht, Putin Ally Acknowledges Founding Wagner Mercenary Group, N.Y. Times (Sept. 26, 2022), http://www.nytimes.com/2022/09/26/world/europe/russia-wagner-group-prigozhin.html; see also Amy Mackinnon, ‘Putin’s Chef’ Steps Out of the Shadows, Foreign Pol’y (Oct. 3, 2022) http://www.foreignpolicy.com/2022/10/03/yevgeny-prigozhin-wagner-group-putin (reporting that Prigozhin wrote on social media “I myself cleaned the old weapons, looked into bulletproof vests[.] From that moment . . . a group of patriots was born.”)  Nathaniel Reynolds, Putin’s Not-So-Secret Mercenaries: Patronage, Geopolitics, and the Wagner Group, Carnegie Endowment for Int’l Peace (July 8. 2019), http://www.carnegieendowment.org/2019/07/08/putin-s-not-so-secret-mercenaries-patronage-geopolitics-and-wagner-group-pub-79442.  Alexander Rabin, Diplomacy and Dividends: Who Really Controls the Wagner Group?, Foreign Pol’y Rsch. Inst. (Oct. 4, 2019), http://www.fpri.org/article/2019/10/diplomacy-and-dividends-who-really-controls-the-wagner-group.  Gotev, supra note 2.  Id.  Id.  Melanie Amann, Matthias Gebauer, and Fidelius Shmid, German Intelligence Intercepts Radio Traffic Discussing the Murder of Civilians, Der Spiegel (Apr. 7, 2022), http://www.spiegel.de/international/germany/possible-evidence-of-russian-atrocities-german-intelligence-intercepts-radio-traffic-discussing-the-murder-of-civilians-in-bucha-a-0a191c96-634f-4d07-8c5c-c4a772315b0d.  Off. of the High Comm’r for Hum. Rts., Rep. on the Situation of Human Rights in Ukraine in the Context of the Armed Attack by the Russian Federation, ¶ 80 (June 29, 2022).  Liz Sly and Kostiantyn Khudov, Accounting of Bodies in Bucha Nears Completion, Wash. Post (Aug. 8, 2022), http://www.washingtonpost.com/world/2022/08/08/ukraine-bucha-bodies.  Ukr. v. Russ., 2019 I.C.J. 558, ¶¶ 1, 23.  Id. ¶ 61.  Id.  Id.  See, e.g., Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 2, U.N. Doc. A/56/10 (Oct. 24, 2001), reprinted in  2 Y.B. Int’l Law Comm’n 31, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter Draft Articles].  Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 115 (June 27); see also Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 43, ¶¶ 399-400 (Feb. 26) (establishing that the conduct in question must be carried out under the instruction, direction, or control of the state to fit within the definition of “effective control”).  See Draft Articles, supra note 21, art. 2; Case Concerning Genocide, 2007 I.C.J. 43, ¶ 430.  Case Concerning Genocide, 2007 I.C.J. 43, ¶¶ 413-15.  Id. ¶ 438 (“it is sufficient that [the state] had the means to [prevent the treaty violation] and that it manifestly refrained from using them”); see also id. ¶ 430 (holding that capacity to influence “depends, among other things . . . on the strength of the political links . . . between the authorities of that State and the main actors in the events.”)  Draft Articles, supra note 21, art. 12; see also Rainbow Warrior (N.Z. v. Fr.), 20 R.I.A.A. 215, ¶ 75 (Fr.-N.Z. Arb. Trib. 1990) (holding that “any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation.”)  See Draft Articles, supra note 21, at 55.  Foreign Aff.’s Comm. Inquiry into the Wagner Group and Beyond: Proxy Private Military Companies., HC Inquiry (Sept. 26, 2022) (statement of Dr. Stepan Sepanenko, Rsch. Fellow, Russ. and Eurasia Ctr., Henry Jackson Soc’y).  Id.  Russia’s Wagner Facing UK Court Action over Ukraine ‘Terrorism’, France 24 (Nov. 1, 2022), http://www.france24.com/en/live-news/20221101-russia-s-wagner-facing-uk-court-action-over-ukraine-terrorism.  Katie Bo Lillis, Natasha Bertrand, Zachary Cohen, and Alex Marquardt, Russian Mercenaries Jockey for Influence Amid Struggles in Ukraine, CNN (Nov. 2, 2022), http://www.cnn.com/2022/11/02/politics/yevgeny-prigozhin-ukraine-putin-kremlin-war-ukraine.  Mackinnon, supra note 8.  See Case Concerning Genocide, 2007 I.C.J. 43, ¶ 430 (noting that “political links” are a factor indicating a state has the capacity to influence another actor).  See Ukr. v. Russ., 2019 I.C.J. 558, ¶ 61. The views expressed in this post represent the views of the post’s author only.