Published by The Lawfare Institute
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International sanctions to punish Russia for its invasion of Ukraine have overlooked a key component in the Kremlin’s toolbox for international terror and coercion: the private military company (PMC) Wagner Group, which is owned by Vladimir Putin confidant Yevgeny Prigozhin.
In the months since Russia’s invasion of Ukraine, the international community has responded with a wide range of international sanctions intended to isolate Russia’s economy from the industrial world and punish individuals and institutions for their complicity in the war. Yet so far, the United States has missed an opportunity to designate Wagner Group as a foreign terrorist organization (FTO) under the Antiterrorism and Effective Death Penalty Act (AEDPA).
Wagner Group and its military leader, Dmitry Utkin, have been subject to Treasury Department sanctions under the authorities of the International Emergency Economic Powers Act (IEEPA) since June 2017. The specific designation of Wagner as an FTO under the AEDPA would be an appropriate response not only for war crimes that Wagner Group has committed in occupied Ukraine from 2014 until today but also for the documented crimes that it has committed throughout the Middle East and Africa. These crimes have occured as Wagner has enriched the Kremlin and served as a covert instrument of Russian foreign policy in the Middle East and North Africa (MENA) region.
In addition to acting as an overt condemnation of the unlawful acts Wagner Group has already committed, the FTO designation would make it a crime under the U.S. material support to terrorism statutes to provide any form of material support to Wagner Group going forward. This would increase the risk of potential violation of U.S. law to the myriad financial institutions and logistics companies whose support is critical to Wagner Group activities throughout the Middle East and Africa. Treasury Department sanctions that list Wagner Group, Prigozhin, and Utkin as specially designated nationals under the IEEPA do carry a significant bite by freezing and blocking assets in the U.S., but designation as an FTO would bring a critical component of U.S. criminal law into play.
Wagner Group’s activities in Ukraine have been notorious since 2014, but they also have had a persistent presence in Syria, Libya, the Central African Republic (CAR), and—most recently—Mali. In all of these countries, Wagner Group mercenaries have been linked to extrajudicial murders, torture, rape, and other war crimes. Most recently, credible reporting indicates that Wagner Group was involved in murdering Ukrainian civilians in Bucha, while other Wagner Group members were involved in a similar massacre against innocent civilians in Mali. Such persistent violations of the Geneva Conventions and the law of armed conflict by Wagner Group have not resulted in any investigations or punishments by Russian authorities. This lack of enforcement indicates that these persistent violations are not the result of individual criminal actions. Rather, they represent a deliberate policy in which terrorism is used in order to enrich a handful of oligarchs and advance the foreign policy objectives of the Russian Federation.
In many cases, such as in the CAR and Mali, Wagner Group forces are better armed and equipped than any other force in the region. While Wagner Group is ostensibly a private military company, which are banned under Russian law, its business activities align with the Kremlin’s covert and overt foreign policy goals. Wagner Group’s notoriety, however, is based not on its connection to the Kremlin, but on its use of violence to achieve influence through the intimidation and coercion of civilian populations. This fear-driven tactic allowed Wagner Group to obtain critical concessions for exclusive access to the mineral wealth of African states, for example—directly benefiting Wagner Group’s owners, as well as the Kremlin.
These activities, carried out by a self-described private actor that claims to have no formal tie to the Russian state, threaten the national security of the U.S. and its allies. These activities also pose a direct threat to U.S. nationals, such as in the case of Wagner Group’s threats to CNN reporters investigating the murder of three Russian journalists allegedly carried out by Wagner Group members in the CAR. While the group may claim no Russian affiliation, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) has already designated Wagner Group as a “Russian Ministry of Defense proxy force.” And in September 2020, OFAC, which had already sanctioned Prigozhin for interference in the U.S. 2016 presidential elections, sanctioned eight individuals and seven entities directly involved in furthering Prigozhin’s operations in the CAR, assisting the activities of Russia’s Federal Security Service, or engaging in sanctions evasion activities.
Although OFAC added Wagner Group to its list of specially designated nationals in 2017, which blocks U.S. residents from having business or financial dealings with the organization, the designation of Wagner Group (and its related entities) as an FTO and the corresponding link to material support to terrorism statutes would constitute a stronger step that would further denigrate Wagner Group’s ability to operate overseas. Because of the broad reach of U.S. material support statutes, designation as an FTO would impede Wagner Group members’ ability to travel internationally, transfer money, and engage in commercial procurements whether these touch the United States or not. Moreover, these steps would be likely to deter mercenaries from joining the organization’s ranks moving forward.
To effectively end the Kremlin’s use of Wagner Group as a covert tool of terror (while officially and persistently denying any connection with the group), the U.S. secretary of state should designate Wagner Group as an FTO. Under the AEDPA, the secretary of state may designate an entity as an FTO based on a determination that the entity is foreign; the entity engages in “terrorist activity” or “terrorism,” as defined in 8 U.S.C. § 1182(a)(3)(B)(iii); and the terrorist activity threatens the security of the U.S. or its nationals. The secretary may rely on both classified and unclassified information in making the designation.
The designation of Wagner Group as an FTO has four major consequences: First, the Treasury Department may freeze the FTO’s assets; second, FTO members are barred from entering the U.S.; third, those who knowingly provide “material support or resources” are subject to U.S. criminal prosecution; and, finally, civil remedies are available to U.S. persons who are victims of a terrorist act committed by an FTO against both the FTO and any person or entity who knowingly provides substantial assistance to an FTO.
Wagner Group’s current designation under the IEEPA means that these first two consequences already are in effect. The last two, however, are not. FTO designation would make international financial institutions and companies more reluctant to engage with Wagner Group because of the potential for criminal indictment under U.S. law. Indeed, the primary impact of such a designation—potential use of material support to terrorism statutes—would likely have a significant impact on the willingness of a variety of foreign companies to provide continued support to Wagner Group activities.
Traditionally, designations of FTOs have focused on Islamic terrorist groups and non-state actors. The closest analogue to Wagner Group, however, is Iran’s Islamic Revolutionary Guard Corps (IRGC), which was designated as an FTO in April 2019—a designation that drew criticism for several reasons. As reported by the New York Times just a few days later, designation of a state entity as an FTO (as opposed to designating an entire country as a state sponsor of terrorism) was an unprecedented move directed against an organization that would potentially cover 11 million members of the Iranian group. Additionally, the IRGC was already sanctioned under the IEEPA, and the U.S. military expressed concern that such a designation would encourage the IRGC to increase its targeting of U.S. personnel and interests in the Middle East. As discussed in a Lawfare article by Elena Chachko, the IRGC designation also appeared to be timed to give a boost to then-Israeli Prime Minister Benjamin Netanyahu in the impending Israeli election. Further, this move was announced at the same time the Trump administration withdrew the visa of the chief prosecutor for the International Criminal Court, a move that was widely denounced as an abuse of U.S. sanctions authority, particularly after the chief prosecutor was sanctioned under the IEEPA in December 2020. (Those designations were lifted in April 2021 by the Biden administration.)
Would such criticism also apply to an FTO designation of Wagner Group?
We would argue, no. Unlike the IRGC, which is a significant component of the Iranian government, the Russian government consistently denies any formal link between itself and the group, even though reporting suggests otherwise. The group’s existence as a separate, ostensibly commercial entity enables the U.S. government to make this designation without creating the same diplomatic difficulties inherent in designation of a government entity. And unlike the case of the IRGC, which continues to be in a position to attack U.S. personnel and U.S. interests in the Middle East, Wagner Group’s potential ability to do the same is not as likely. Finally, such a designation would be a meaningful intervention toward degrading Wagner Group’s ability to engage in violence-enforced commercial activities in Africa and the Middle East.
While recognizing that Prigozhin, the group’s leader, and a number of entities that he owns or controls have been sanctioned under Treasury Department regulations, the designation of Wagner Group as an FTO, consistent with existing U.S. law, is an important additional step. Critically, this action would make any financial, logistical, or other support to the Wagner Group subject to prosecution by the U.S. for material support to terrorism—thus imposing new difficulty on the group’s MENA operations. As such, this designation would be an important step to protect the U.S. and its allies from the violent and disruptive activities of one of the world’s most notorious organizations.
Where the United States leads, others are likely to follow. The goal of these sanctions, like similar sanctions against other terrorist groups, would be to deny the organization’s members the ability to travel internationally, destroy the group’s financing, derail its recruitment efforts, and discourage foreign governments from employing it. This is an important and necessary step toward ending Wagner Group’s utility to the Kremlin and, therefore, its existence.