The case against Russia’s Wagner Group and what it means for Syria

Human rights groups have filed a case at the European Court for Human Rights (ECtHR) against the Russian Wagner Group for violations in Syria. But Russia has already expressed its intent to withdraw from the European Convention of Human Rights (ECHR) and thus the ECtHR’s jurisdiction. This raises the question of whether the Court will even have an opportunity to rule on the case and what Russia’s withdrawal will mean for broader efforts of accountability against the Russian Wagner Group.

Last year, SJAC assessed Syrian pathways to justice at the ECtHR against Russia. SJAC then found that despite new cases raising hopes of holding Russia legally accountable for its military involvement in Syria and violations of the ECHR, Russia’s reluctance to implement any policy or legal changes, or payments to victims, in response to ECtHR rulings, make proceedings before the Court merely symbolic. We now examine the prospects of the Wagner case before the ECtHR in light of Russia’s expulsion from the Council of Europe (CoE) and the practical implications for other Syria-related cases against Russia at the Court.

Wagner’s Role in Syria

‘Plausible deniability’ is probably the most frequently used term to describe the relationship between the Russian government and the Private Military Company (PMC) Wagner Group. Wagner is not officially registered in Russia or elsewhere in the world, and since mercenarism is criminalized under Russian law, the Russian government repeatedly denies any ties to the PMC. The company was founded shortly before the Russian annexation of Crimea and has been involved in Russian military operations in the country ever since. According to Ukrainian intelligence information, Wagner is directly connected to the Russian military. The Wagner Group is also involved in the Syrian conflict. Among others, its members participated in a firefight with U.S. troops in Deir ez-Zor in 2018 and, according to SJAC’s own research with Syrians for Truth and Justice,the Wagner Group has been involved in recruiting and exploiting Syrians as mercenaries to fight abroad.

Video footage from June 2017, circulated on social media in 2019 and analyzed by an independent Russian media agency, shows members of Wagner beating, beheading, and burning the body of a Syrian national. This material is at the core of a criminal complaint against the Wagner Group filed by several human rights organizations supporting the brother of the victim shown in the videos. The NGOs decided to first file the complaint with relevant Russian courts. However, they were not expecting that the Russian judiciary would pursue an investigation. The NGOs decided to go through the Russian judiciary first, in order to exhaust local remedies, a key admissibility criterion for cases to be filed at the ECtHR. Indeed, the Russian judiciary rejected the case, arguing that the evidence, namely the video footage, was not authentic. This holding would likely be rejected by the ECtHR since open-source digital evidence has been admitted in numerous cases arising from the Syrian conflict. However, the question remains if the ECtHR will accept to hear the case at all.

Russia’s Intended Withdrawal from the ECtHR’s Jurisdiction

After the Moscow City Court dismissed the case in early 2022, the NGOs then filed an application with the ECtHR in Strasbourg. However, the submission came only one day after the Russian Parliament, the Duma, passed two bills which provide that, upon signature by President Putin, Russia will withdraw from jurisdiction of the ECtHR and not implement any decisions by the Court rendered after March 15, 2022. This was the date on which Russia announced its withdrawal from the Council of Europe (CoE) simultaneously with the Council’s announcement to expel Russia as a member. This is important in terms of the Court’s jurisdiction, as the CoE not only oversees the Court, but membership in the CoE is a prerequisite of joining the ECHR that lends jurisdiction to the ECtHR.

The Duma’s vote on these bills therefore contradicts an ECtHR resolution from March 22, 2022 in which the Court ruled that following Russia’s expulsion from the Council on March 15, the Court retains jurisdiction over Russia for any potential violations that occurred before September 16, 2022. The Court thereby set a six-month waiting period for Russia to quit the court, applying Art 58 (1) ECHR. Some legal observers have criticized the ruling as contradictory as Russia has been expelled from the CoE with immediate effect on March 15. The ruling has the practical effect of maintaining a non-member of the CoE as subject to the jurisdiction of the ECtHR. In any event, the Duma’s decision to leave the Court’s jurisdiction from March 15, indicates that Russia is not concerned about these technicalities. Russia merely seeks to immediately denounce the Convention and end connected obligations in terms of the Court’s jurisdiction.

Victory by default?

This leads to the question of what will happen with the approximately 18,000 pending applications at the ECtHR against Russia, which now include the application concerning Russia’s obligations in connection with the Wagner Group’s violations in Syria. Based on Russia’s repeated refusal to implement any measures ordered by the Court, and rhetoric of Russian officials in declaring the Court’s decisions as ‘unlawful’ or accusing the Court of having an anti-Russia agenda, Russia will likely stop engaging with the Court immediately. Pursuant to Art. 44C of the Rules of the ECtHR, in cases where a respondent state fails to effectively participate in proceedings, the Court may proceed as it deems appropriate. The Court itself noted in its resolution that there is no precedent governing an expulsion of a contracting state from the CoE and its removal from the ECHR. The outcome is not yet clear. But the Court might choose to render decisions in favor of the applicants and ‘in absentia’ of the respondent state.

The wording of the resolution also indicates that the Court will accept applications against Russia after September 16, 2022, as long as they concern alleged violations that predate Russia’s final expulsion from the Court. This raises more practical uncertainties, at it is not clear how the Court will hear cases concerning Russia if the Russian judge, who participates as a rule in cases concerning Russia, or an ad hoc judge proposed by Russia will not engage in the proceedings. This could mean that the avenue to hold Russia accountable at the ECtHR will effectively terminate on September 16, 2022. That consideration aside, any judgments rendered by the Court without Russia’s participation could damage the Court’s legitimacy and ultimately reduce the symbolic value of decisions.

Conclusion

The case against the Wagner group at the ECtHR may be doomed from the start. The Court itself will have to address uncertainties following Russia’s expulsion from the CoE no later than September 16, 2022, which is the termination date set by the Court. Regardless of the eventual practical implications, even a favorable decision by the Court in the Wagner case would have mere symbolic value for Syrians and not lead to any policy or legal changes by Russia.

Alternatively, Economic sanctions may have a more practical impact on Russian individuals for violations committed in Syria. While sanctions issued by the European Union or other European states, such as the United Kingdom, lack the radiance of ECtHR decisions, they have more practical, imminent effects for alleged perpetrators or those affiliated with alleged perpetrators violating the Convention. For example, in its December 2021 decision to sanction the Wagner Groups, eight affiliated individuals, and three entities, the Council of Europe explicitly referred to Wagner’s grave human rights violations, including intimidation of civilians and arbitrary killings, among others in Syria.

In deciding which accountability measures to pursue, before the ECtHR or elsewhere, Syrians should continue to weigh the symbolic value of a favorable court ruling against the practical consequences for alleged perpetrators. There is room for both in justice and accountability. But Syrians involved in such processes should be fully informed before engaging in such efforts.

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