Authored by Nika Salamunić, PhD Candidate, Queen Mary University of London
Introduction
The Russia-Ukraine war has been going on for over two years. Throughout these two years, the risk of the conflict escalating into the next world war has been severe on many occasions. One of these moments took place at the beginning of May 2024, when speculations about France sending its armed forces to defend Ukraine appeared in the news. The Asian Times cited Steven Bryen, the ex-aide to the deputy chief of the Pentagon, saying that one hundred Foreign Legion soldiers stationed in Sloviansk were sent to Ukraine. Ukrainian news channels have since called the claim of direct French military involvement false and being linked to Russian propaganda. Russia’s reported response to any talk about the direct involvement of Western armed forces in Ukraine is tactical nuclear weapons drills. Russian news agency Tass has reported about the possibility of France bringing 1500 military troops to Ukraine in April 2024.
This article begins by introducing France as a member of the NATO Alliance, before discussing the importance of Article 5 of the North Atlantic Treaty and NATO’s approach to armed conflict. The threat of nuclear war is NATO’s biggest concern and is thus included in this article, as well as a brief look into cyber-warfare. However, states are not the only actors participating in the war in Ukraine. Private soldiers represent a unique challenge for the law, while offering a possibility for countries to partake in conflict without causing a political and security disaster. While briefly discussing the role of private soldiers, the article takes the example of the Russian private soldiers network, the Wagner Group, to highlight some of the crucial legal questions brought on by private hire today.
France and the NATO Alliance
France is one of NATO’s founding members. After the Second World War, France’s belief in a Western defence structure was based on its aims to protect its territory and secure the necessary military resources. Robert Shuman, who was the prime minister of France at the time, expressed his vision as: ‘the exclusive concern of France…to make impossible any invasion of her own territory or the territory of peace-loving nations’. However, in 1959, France began to gradually carve out its independence from the NATO Alliance. The process of separation began with France withdrawing from the Mediterranean command and peaked in 1966, when France removed its forces from the integrated command structure. However, General de Gaulle stated that the decision came from wanting to change the form of France’s Alliance, but not its substance.
There were several reasons for France’s change in attitude towards its role in the NATO Alliance in the 1960s. France’s devotion to its interests in Algeria were, on their own, a great contributor to the decision. As France sent its troops to Algeria, the NATO Ally was no longer able to meet its financial requirements or manpower assigned to NATO. However, that soon changed and the commitment to NATO that was previously expressed in General de Gaulle’s words was demonstrated through France’s contributions to NATO military operations, with France contributing the largest numbers of troops to the Alliance after the fall of the Berlin Wall in 1989. France’s support for NATO continually increased, especially in the NATO operations in the 1990s. In 2009, France officially returned to the NATO military command structure. Today, France’s defence policy is self-reliant and centred around their independent nuclear power and its colonial and postcolonial rule in Africa. Alongside France’s strategic autonomy, the country has a leading role in the NATO Alliance.
Invoking Article 5 of the North Atlantic Treaty
The reports in May 2024 about a potential involvement of French troops in the Russia-Ukraine war were significant, mostly because of the consequences that would derive from a subsequent invocation of Article 5. According to Article 5 of the North Atlantic Treaty, an attack on a NATO member will be considered an armed attack against all NATO members. The members will then take any action that the Alliance decides is appropriate to assist the NATO member under attack. An involvement of a NATO member in armed conflict, would therefore immediately bring us on the brink of World War Three. A world war, at this stage of military technology and advancement in weapons, means word-wide destruction. De-escalation is therefore the only possible strategy, and it is also NATO’s approach to armed conflict and particularly nuclear weapons.
Discussing a potential response by NATO to Russia’s aggression takes us back to the beginning, with the founding of the North Atlantic Treaty in 1949. Article 5 of the North Atlantic Treaty contains the promise of mutual assistance in case the Soviet Union would ‘seek to extend its control of Eastern Europe to other parts of the continent’. Discussing the possibility of Putin going after other European countries should he win in Ukraine, is therefore in no way a novelty development for NATO. What is relatively new, however, is the potential for destruction if a full-blown war between Russia and the NATO Alliance would break out.
France, describes its independent nuclear forces as playing a significant role in NATO’s global security.Any potential direct military involvement of a NATO member has to be considered against the backdrop of an imminent threat of nuclear war. With Russia using the threat of a nuclear attack as a deterrent to the West’s participation in the conflict, there have been many speculations about how the NATO Alliance could respond. One response by the NATO Alliance dates back to United States commitment to protecting the allies from Soviet aggression. The first US nuclear weapons were deployed to Europe in September 1954. Today, there are an estimated 100 American B16 gravity bombs deployed in Belgium, Germany, Italy, the Netherlands and Turkey. In the United Kingdom, RAF Lakenheath in Suffolk is speculated to host United States nuclear weapons as it did during the Cold War. NATO’s nuclear power is a key element of its strength and defence capabilities. But despite that, the overall mission of NATO is nuclear disarmament, however, that remains impossible as long as nuclear weapons exist.
NATO identified the Russian Federation as the number one threat to Allied security in its 2022 Strategic Concept. Back in January 2024, Lieutenant General Alexander Sollfrank, commander of NATO’s military logistics centre in southwest Germany, warned against a future attack of Russia on the NATO alliance, where ‘sabotage through electronic warfare and cyber to kinetic possibilities through missiles, drones and so on’ could be expected. The branched out warfare tactics, containing a shift from sole missiles and on-the-ground battle, may appear as a beacon of hope for the environmental impact of war, but that could not be more wrong. Cyber-attacks carry the danger of the attacker accessing sensitive data and affecting or shutting down environmental systems. Through that, a cyber-attack, which may at first glance seem harmless for the environment because there is no smoke or guns fired, can result in an environmental catastrophe. Particularly vulnerable are so-called critical industries, which the United States Infrastructure Security Agency, created by the United States Department of Homeland Security, identified as industries that work with chemicals including hazardous substances, emergency services, defence industry infrastructure, health care and several others.
A collective self-defence by NATO Allies based on Article 5 would be aligned with the right to self-defence under international law, if a NATO member would be attacked. If, in the case of France and Russia, Russia would attack France, France would have the right to respond and a collective response by NATO would be permissible. However, Russia has not targeted France with its attacks. This means that France could legally target Russia if there was an apprehension of imminent danger, of which there has currently been no reports of. The apprehension of imminent danger is where using threats of nuclear war is a particularly dangerous strategy, but the threat needs to be perceived as actual and imminent for self-defence to be legal. For cyber-attacks to trigger Article 5, the threshold of harm would have to be met, which is not impossible based on the harm cyber-warfare can cause.
The Legal Issues of Private Hire: the Wagner Group
The Wagner Group’s leader Yevgeny Prigozhin is presumed to have died in a plane crash in 2023. On the 23rd of June 2023 Prigozhin released a video where he rejected Putin’s justification for invading Ukraine and in a subsequent audio recording, he called for a stop Russia’s ‘evil’ military leadership. Wagner had a crucial role in Russia’s invasion of Ukraine. In May 2023, Wagner captured the city of Bakhmut. According to an estimate by the US in May 2023, around 50,000 Wagner fighters have been killed in Ukraine since December 2022. Since Prigozhin’s death, Wagner Group is said to continue as Africa Corps in 2024. But despite having become well-known and feared, legally, there remains a lot of mystery surrounding the Wagner Group.
The practice of outsourcing war to the private sector is not new, but Wagner adds another layer of complexity to the practice. For one, international legal instruments are accustomed to dealing with mercenaries, but not much more when those partaking in war are not the traditional state armies. Mercenaries are a group of persons under the Geneva Conventions, next to combatants and civilians. A mercenary is defined in Article 47 of Protocol I as ‘a person who takes a direct part in hostilities motivated essentially by the desire for private gain’. The definition of Article 47 expands this definition with a list of criteria, which mercenaries must cumulatively fulfil. The Wagner Group would not fall under Article 47, because while its members were specially recruited to fight in armed conflict and do partake directly in hostilities (condition a. and b. of Article 47), proving they were motivated by financial gain to do so (condition c. of Article 47) is challenging. Since Russia is at war with Ukraine, and Wagner Group consists of Russian nationals among others (disproving conditions d., f. and potentially e.), the group could argue patriotism or national pride as being more important. The International Convention against the Recruitment, Use, Financing and Training of Mercenaries bans mercenaries, but contains the same definition as Article 47.
The question of what Wagner Group are in the language of international law was acknowledged in a paper on the ‘Wagner Group’ published in 2023 by the House of Commons. The paper introduces the term ‘network’ for Wagner, which makes sense considering how the Wagner Group is organised structurally. At the same time, private networks partaking in armed conflict are yet to obtain a status of persons under international law and there is an issue with fitting them under existing terminology. A potential option would be calling Wagner a ‘private military and security company’, but that offers no notable increase in legal certainty or a definition that would accurately describe the Wagner Group. More research into how the group operates would be needed. Hiring private military companies to partake in armed conflict on behalf of a state is not illegal under international law.
Conclusion
As the Russia-Ukraine war goes on, NATO Allies approach achieving an end to the conflict with a tactic of de-escalation. Triggering Article 5 would bring about consequences that would affect life all over the world. But while caution is a political strategy, the law must approach its issues head on. The legal issues exposed by the Wagner Group relate to issues in regulation of private hire that are a general issue in the law. As for the events of May 2024, time has proven that France did not send its troops to Ukraine. Based on international law, this course of action would be unlikely, unless France perceives imminent danger from Russia. While invoking Article 5 is in the hands of anyone who would attack a NATO Ally, the Alliance is leading with an awareness of the consequences a collective response would have with today’s advancement in weaponry.