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Aditya Sharma, “The Status of Gorkhas in International Law,” ORF Issue Brief No. 685, January 2024, Observer Research Foundation.
Introduction
Gorkhas or Gurkhas, a martial race hailing from the hill town of Gorkha in Nepal,[1] are some of the fiercest fighters on the battlefield who have garnered respect for their services in peace and war time. Therefore, the news of Gorkhas joining the Russian Armed Forces[2] becomes a cause of concern not only for the arguably ‘neutral’ Republic of Nepal but also for the United Kingdom (UK) and India, which have engaged Gorkhas in their respective armies since the early 1800s. Perhaps more worrisome are reports of the Gorkha recruitment made by the controversial Wagner Group[a],[3] that seem to place them in a category distinct from the regular armed forces, raising questions not only about its integrity but also on the strategic security of the Indian subcontinent.
There are probable causes that may have encouraged the Gorkhas to join the Russian forces, especially at a time when Russia is a party to an armed conflict.[4] Over 200 years, Gorkhas have served the British Army in numerous wars, including the First and Second World Wars. Since then, they have been deployed as a contingent of the British Army in 14 countries where they work in peacekeeping, provide humanitarian aid, enforce counterterrorism measures, and help combat the international illicit drugs trade.[5] The Gorkhas’ journey in the UK, however, has not been without struggle.
In August 2021, hundreds of protesters marched towards Downing Street in London in support of the Gorkha veterans who sat on a 13-day hunger strike demanding equal pension[6] and treatment at par in every aspect with the British regiment.[7] It was not the first time that Gorkhas protested against the system by which they have historically felt discriminated,[8] but it indicated that the British Army has increasingly become a less favourable destination for the young Gorkhas. That is not to say that the Gorkhas are neither joining nor being recruited by the British Army.
Meanwhile, with India, the engagement of Gorkhas is older than the Tripartite Agreement signed between the UK, Nepal and India in 1947 and traces its roots to the recruitment made by Maharaja Ranjit Singh[9] between 1809-1814.[10] In contrast to the UK, India imposes no restrictions on Gorkhas becoming commissioned officers, with many of them rising to senior positions over time. Factors such as pay scale, pension, and parity have never been contentious for the Gorkhas in the Indian Army, who bring home US$620 million in remuneration, contributing to the rural economy when Nepal’s defence budget is US$420 million.[11]
Even so, two factors could have made the Indian Army a less favourable option for the Gorkhas. The first is attributable to the local political pressure from the leftist forces in Nepal that do not wish to deploy Nepalese Gorkha against the military forces of China.[12] The second factor is related to the Agnipath Scheme[13] of the Indian government that provides for an early discharge from service with a ‘Seva Nidhi’ compensation package, making the Indian Army a less lucrative option for Gorkhas who view the post-retirement pension to be earned from the services as a steady source of life-long income. The K.P. Sharma Oli government saw the Agnipath scheme as an opportunity to close the gap with China—which has come a long way from calling Gorkhas “petty devil”[14] to now actively trying to enlist them in its People’s Liberation Army.[15]
As a word of caution, in the absence of any empirical and statistical analyses, it may be too tempting to conclude that the correlation (between Gorkhas and the problems faced by them in the UK and India) does not necessarily imply causation (of Gorkhas joining the Russian forces or the Wagner Group). However, it will be imprudent to deny that these factors could have influenced the choices of desperate Gorkhas looking for better income opportunities.
But why Russia? The simple reason is that Russia is hiring, given its current conflict, and Gorkhas fit the job description. Recent investigative reports suggest that over a dozen Nepalese youth have already started training in the Russian military complex of Avangard and at a station in the Belarusian city of Baranavichy.[16] Unlike with the UK and India, the engagement of Gorkhas in Russia is not governed by any agreement. According to media reports, Nepal’s embassy in Moscow maintains that the Nepalis joining the Russian army are doing so in their individual capacity.
The loosely knit statement is particularly surprising as it comes months after Nepal voted in favour of the UN Resolution that condemned Russia’s invasion in Ukraine and inter alia demanded the withdrawal of troops, indicating a shift in its ‘neutral’ policy on the conflict in Ukraine.[17] Without measures from the government of Nepal, the situation is only expected to worsen. To top it all, Nepal’s current unemployment rate stands at more than 11 percent,[18] and officials are concerned that the country’s youth would continue to find a lucrative option in serving the Russian forces.[19]
Combatants or Civilians?
States, historically, were considered the primary actors on the battlefield and the only ones who could legitimately use force.[20] To defend this position today would entail ignoring the realities of modern warfare and believing that states fight battles with armies comprising their own citizens. This provokes the question: What is the status of fighters from third states like Gorkhas joining the Russian Army and the Wagner Group? Would the status of Gorkhas change in each of these situations?
The distinction between civilian[21] and combatant[22] is the cornerstone of international humanitarian law[23] and constitutes jus cogens norms.[24] A combatant is statutorily defined as a member of the armed forces of a party to the conflict. The juridical status of a combatant provides immunity from criminal prosecution for acts that do not violate the laws and customs of war but which might otherwise be common crimes under municipal law,[25] thus allowing combatants to participate directly in hostilities. Furthermore, in an international armed conflict, any individual participating directly in hostilities—including civilians, who otherwise constitute a protected class—is vulnerable to direct attack. Therefore, for the Gorkhas to qualify as combatants and enjoy the combatant privilege or prisoner-of-war status, they need to be members of the armed forces[26] of a party to the conflict. If Gorkhas join the Russian army and take active part in hostilities, they will be treated as combatants, irrespective of their nationality or an agreement between Nepal and Russia.
As for the Wagner Group, it claims to be a private military company operating at a strength of at least 25,000 soldiers,[27] including Russian army veterans. It is important to understand that not all private military companies operate in a setup similar to that of the Wagner Group; this plays a crucial role in determining their status. The use of private military in combat is not new for Russia, which has built on the Soviet Union’s history of engaging proxy forces abroad.[28] While individuals are not allowed to serve as mercenaries as per the Criminal Code of Russia, state-run enterprises are permitted to have private armed forces and security foundations.[29] This gives rise to two inextricably linked questions: whether the Wagner Group falls within the ambit of the armed forces; and whether its members qualify as combatants.
The answer to the first question may seem to be in the affirmative, however, this may not be the case for all private military and security companies. While the direct participation of the Wagner Group has been apparent in the Ukraine–Russia conflict, the Kremlin has never previously acknowledged its links with the group, which led to challenges while making calls for establishing accountability. Be that as it may, in the aftermath of the failed coup, the world witnessed the piercing of the corporate veil of the Wagner Group when President Vladimir Putin acknowledged that, though registered as a private entity, the Wagner Group has been funded by Moscow.[30] The admission is definitely of a high corroborative value (if not conclusive) in establishing the link between Russia (as a belligerent party) and the Wagner Group (as a private military company). Having said that, in the contemporary international humanitarian law, the armed forces refer not only to regular state armed forces but encompass all organised armed actors whose function is to conduct hostilities on behalf of the belligerent party.[31]
Within this context, a private contractor who does not directly participate in hostilities is considered to be a civilian and lacks the combatant privilege.[32] Therefore, it is essential to establish that the private military company acting on behalf of a party to the conflict is also directly participating in hostilities. This, in turn, also reflects that the status of private military companies and their personnel (irrespective of the fact that they are nationals of third countries) is thus highly dependent on the facts of each situation.[33] In the Ukraine–Russia conflict, given the evidence, if it is agreed that the Wagner Group had been conducting hostilities on behalf of Russia, it will be considered as the irregular (or proxy) armed forces of Russia, and the group’s members, including Gorkhas, who take direct part in the hostilities, will be legitimate military targets and entitled to the prisoner-of-war status.[34]
Mercenaries?
The use of modern weaponry and artificial intelligence have added to the legal complexity of the battlefield. Additionally, the high-standards of the legal lexicon, that provides a leeway to belligerent parties also prompt questions around their actual relevance and practical application. One such lacuna is the definition of ‘mercenaries’, whose use in describing the Wagner Group is a legal misnomer. To be called a mercenary, a person, by definition, needs to cumulatively satisfy six essential conditions.
According to Article 47(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Additional Protocol I), a mercenary is any person who: (a) is specially recruited locally or abroad to fight in an armed conflict; (b) directly participates in the hostilities; (c) is motivated by private gain to take part in the hostilities and is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party; (d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (e) is not a member of the armed forces of a party to the conflict; and (f) has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces.[35]
Article 47(1) of the Additional Protocol I adds that a person who qualifies as mercenary, i.e., who fulfils all the six conditions stipulated under Article 47(2) of the Additional Protocol I, shall not have the right to be a combatant or prisoner-of-war.[36] However, the unlikelihood of a private military company qualifying as mercenary owing to the number of requirements as well as the fact that some of the requirements can be circumvented renders Article 47[37] to be of little relevance.[38]
Prima facie the Wagner Group, by virtue of the fact that it includes Russian nationals, i.e., nationals of a party to the conflict, does not satisfy or meet one of the six conditions, and therefore, cannot be categorised as mercenaries. By way of extension, any foreign national joining the group will also not be considered a mercenary. To further simplify, the Gorkhas, serving as members of the armed forces of a party to the conflict, by virtue of them joining the Russian Army or the Wagner Group (which, as we saw above, includes Russian nationals), cannot be referred to as mercenaries.
Adding to the legal incongruence, while Article 47(2) of Additional Protocol I states that mercenaries cannot be part of the armed forces of the party to the conflict, Article 43(1) of the Additional Protocol I stipulates that the armed forces include all organised armed forces, groups, and units which are under a command responsible to that party. A joint reading of Article 43(1) and Article 47(2), in effect, exempts individuals and groups from being categorised as mercenaries. After all, the raison d’être of mercenaries is to participate in hostilities on behalf of a belligerent party, and a group (for example, the Gorkhas) is more likely to be organised and under a command that is responsible to the belligerent party for whom they are fighting.
The apparent beyond-reasonable requirements stipulated in the definition of ‘mercenaries’ like under Article 47(2) sub-clause (c) that requires evidence that a person accused of being a mercenary is “motivated to take part in the hostilities essentially by the desire for private gain” and that the “material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces” renders the article infructuous. Indeed, during the Diplomatic Conference leading to the adoption of the Additional Protocols, several states voiced their concerns against the requirement to prove the payment of exorbitant sums of money to the person accused of being a mercenary.[39] It is for this high threshold and the restrictive scope that Article 47 of Additional Protocol I is being considered impractical.
Conclusion
The current situation in Nepal is of concern for the entire subcontinent. With its expansionist ambitions, China is anticipating the recruitment of Gorkhas to safeguard its interests in occupied Tibet as well as establish strategic control in the Himalayas. While previous overtures by China to recruit Gorkha soldiers were rebuffed, the ongoing imbroglio and the presence of a favourable dispensation in Nepal is paving the way for Gorkha soldiers in the People’s Liberation Army.[40]
Media reports suggest that some of the fighters recruited by Russia are retired veterans from the Nepal army[41] and possess the expertise to carry out operations without additional training. That the Gorkhas have been fighting on both sides of the Ukraine–Russia conflict[42] further attests to their primarily monetary rather than moral motivations. If Gorkhas are joining belligerent parties for their citizenship policy[43] or lucrative pay,[44] and if it is true that the Nepal government is unable to control the Gorkhas who have been signing contracts in an individual capacity,[45] it does make Gorkhas appear more like mercenaries than soldiers.
The problem of foreign fighters is not new to Central Asia,[46] although this is the first time that the Indian subcontinent has been confronted by these issues in this manner. It is true that Nepal’s inaction may prompt a questioning of the country’s foreign policy of ‘constructive neutrality’. In order to prevent its citizens from being used as cheap stock in battles to which they are not parties, by foreign countries with whom Nepal has not entered a bilateral agreement, Nepal needs to act expeditiously.
India, owing to its people-to-people relationship, cultural similarities, and spiritual ties with Nepal, undoubtedly, also has a role to play. The Gorkhas play a significant part in the shared history of both countries and have made significant contributions in the various wars that India fought against Pakistan in 1947–48, 1965, and 1971 and against China in 1962.[47] India must act in order to placate the concerns of the Gorkhas, who continue to serve in the Indian Army.
Gorkhas possess a legacy built on their fierce warcraft and cannot be equated to any other individual or group motivated to join any conflict. They carry a brand name that has been built over the years; their “Kukri” is a sign of resilience and bravery. It is true that the shifting realities of the Ukraine–Russia conflict are resulting in several other nations being directly or indirectly drawn towards it, and the issue of foreign fighters joining an unrelated conflict is expected to further aggravate with the rise of a new conflict in the Middle East. Even as international law grapples with the transition in how modern-day wars are being fought, it warrants an urgent revisit to legal understanding and definition of the term ‘mercenaries’, which in its current form has been rendered useless. Until then, if someone is looking for the valiant Gorkhas under the ambit of international law, they are to be found somewhere between being fighters and mercenaries.
Endnotes
[a] Founded in 2014, the Wagner Group or the PMC Wagner has been registered as a private military company in Russia since 2022. It was led by a Russian oligarch Yevgeny Prigozhin before he died in a plane crash in 2023.
[1] “Who are the Gurkhas?,” BBC, July 27, 2010, https://www.bbc.com/news/uk-10782099.
[2] “Investigation Reveals Nepali Soldiers Undergoing Training At Russian Military Camps,” Outlook, June 26, 2023, http://www.outlookindia.com/international/investigation-reveals-nepali-soldiers-undergoing-training-at-russian-military-camps-news-298099.
[3] Manish Kumar Jha, “Nepali Gurkhas rush to join Wagner group amid citizenship offer and opportunities,” Financial Express, June 30, 2023, https://www.financialexpress.com/business/defence-nepali-gurkhas-rush-to-join-wagner-group-amid-citizenship-offer-and-opportunities-3147825/#.
[4] Article 2, Geneva Conventions, 1949 read with Article 2, Paragraph 4 of the Additional Protocol I.
[5] The Gurkha Brigade Association, Brigade of Gurkha History, https://www.gurkhabde.com/history/.
[6] “Gurkha group ends Downing Street hunger strike after talks agreed,” BBC, August 19, 2021, https://www.bbc.co.uk/news/uk-england-hampshire-5827426.
[7] “Gurkha veterans on hunger strike outside Downing Street,” BBC, August 11, 2021, https://www.bbc.co.uk/news/uk-58159773.
[8] Tim I Gurung, “Why the Gurkhas are once again staging a hunger strike in the heart of London,” The Record Nepal, July 30, 2021, https://www.recordnepal.com/why-the-gurkhas-are-once-again-staging-a-hunger-strike-in-the-heart-of-london.
[9] Vijaya Kumar Tiwary and Vijay Kumar Tiwary, “The Recruitment of the Gurkhas in the British Army, their role in British Empire,” Proceedings of the Indian History Congress 70 (2009): 802–13, https://www.jstor.org/stable/44147727.
[10] “8 interesting facts about Gorkha Rifles,” The Times of India, November 9, 2017, https://timesofindia.indiatimes.com/india/8-interesting-facts-about-gorkha-rifles/articleshow/61575704.cms?frmapp=yes&from=mdr.
[11] “China‘Keen’ To Recruit Gurkha Soldiers Into PLA; Will It Become 3rd Country After UK & India To Hire The Fearless Men?,” The EurAsia Times, May 3, 2023, https://eurasiantimes.com/china-keen-to-recruit-gurkha-soldiers-into-pla-will-it-become/.
[12] Vijay Gokhale, “India’s Fog of Misunderstanding Surrounding Nepal–China Relations,” Carnegie India, October 4, 2021, https://carnegieindia.org/2021/10/04/india-s-fog-of-misunderstanding-surrounding-nepal-china-relations-pub-85416.
[13] Terms and Conditions: Agnipath Scheme for service in Indian Army, June 2022, https://joinindianarmy.nic.in/writereaddata/Portal/Notification/861_1_Terms_and_Conditions_for_Agnipath_Scheme.pdf.
[14] Vijay Gokhale, “India’s Fog of Misunderstanding Surrounding Nepal–China Relations”.
[15] “Explained: Is China trying to recruit Nepal’s famed Gorkhas into its army?,” Firstpost, May 5, 2023, https://www.firstpost.com/explainers/explained-is-china-trying-to-recruit-nepals-famed-gorkhas-into-its-army-12551502.html.
[16] Maxim Edwards, Youri van der Weide, Michael Sheldon, Aric Toler and Dennis Kovtun, “Russia's Foreign Fighters: Geolocating the Nepalis Training in the Russian Army,” Bellingcat, June 23, 2023, https://www.bellingcat.com/news/2023/06/23/russias-foreign-fighters-geolocating-the-nepalis-training-in-the-russian-army/.
[17] Lekhanath Pandey, “Ukraine war: Why Nepal chose to go against Russia, Lekhanath Pandey,” DW, March 23, 2023, https://www.dw.com/en/ukraine-war-why-nepal-chose-to-go-against-russia/a-61234019.
[18] International Labour Organization, “ILO Modelled Estimates and Projections database ( ILOEST )”, the World Bank Group, 2022, https://data.worldbank.org/indicator/SL.UEM.TOTL.ZS?locations=NP.
[19] Ritu Sharma, “Fierce Gurkhas Are Joining PMC Wagner In Lure Of Russian Citizenship; Ex-Nepal Army General Says ‘Concerning Trend’,” The EurAsia Times, June 25, 2023, https://eurasiantimes.com/gorkha-soldiers-joining-pmc-wager-in-lure-of-russian-citizenship/.
[20] Chia Legnardt, “Chapter 12-Private Military Companies” in Research handbook on international conflict and security law: jus ad bellum, jus in bello and jus post bellum, ed. Christian Henderson and Nigel D. White, Edward Elgar Publishing Limited, 2013, 421.
[21] Article 50 of the Additional Protocol I - ‘1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian; 2. The civilian population comprises all persons who are civilians; 3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character’.
[22] Article 43(2) of the Additional Protocol I - ‘Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities’.
[23] Nils Melzer, “Chapter 12-The Principle of Distinction Between Civilians and Combatants,” in The Oxford Handbook of International Law in Armed Conflict, ed. Andrew Clapham, and Paola Gaeta, Oxford University Press, 2015, 296–331.
[24] International Law Commission, “Report on State Responsibility,” Yearbook of the International Law Commission, 2001, vol II, part 2, Draft Article 40, Commentary, 112.
[25] American University Law Review, ‘The status of Combatants in Non-International Armed Conflicts under Domestic Law and Transnational Practice’, W.A. Solf, 1983.
[26] Article 43(1) of the Additional Protocol I - ‘The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict’.
[27] Paul Kirby, “Wagner chief's 24 hours of chaos in Russia,” BBC, June 24, 2023, https://www.bbc.co.uk/news/world-europe-66006880.
[28] “Band of Brothers: The Wagner Group and the Russian State,” Center for Strategic and International Studies, September 21, 2020, https://www.csis.org/blogs/post-soviet-post/band-brothers-wagner-group-and-russian-state.
[29] “Band of Brothers: The Wagner Group and the Russian State”
[30] Pjotr Sauer, “Putin tells security staff they prevented civil war as Prigozhin lands in Belarus,” The Guardian, June 27, 2023, https://www.theguardian.com/world/2023/jun/27/jet-linked-yevgeny-prigozhin-flies-belarus-fsb-drops-investigation-russia-wagner.
[31] Melzer, “Chapter 12-The Principle of Distinction Between Civilians and Combatants”
[32] ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities, 2009.
[33] Ramin Mahnad, “The status and protection of third-country nationals in international armed conflict,” Humanitarian Law and Policy, October 6, 2022, https://blogs.icrc.org/law-and-policy/2022/10/06/third-country-nationals-international-armed-conflict/.
[34] James Cockayne, “Chapter 25-Private Military and Security Companies” in The Oxford Handbook of International Law in Armed Conflict, ed. Andrew Clapham, and Paola Gaeta, Oxford University Press, 2015, 624–655.
[35] Article 47(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[36] Article 47(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[37] Article 47, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[38] Legnardt, “Chapter 12-Private Military Companies”
[39] Customary Law, Rule 108, International Humanitarian Law Database, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule108#title-1.
[40] Vijay Gokhale, “India’s Fog of Misunderstanding Surrounding Nepal–China Relations”
[41] Sharma, “Fierce Gurkhas Are Joining PMC Wagner In Lure Of Russian Citizenship; Ex-Nepal Army General Says ‘Concerning Trend’”
[42] Birat Anupam, “Why Nepalis Are Fighting on Both Sides of the Russia-Ukraine War,” The Diplomat, June 17, 2023, https://thediplomat.com/2023/06/why-nepalis-are-fighting-on-both-sides-of-the-russia-ukraine-war/.
[43] The Russian Federation, "The Federal Assembly of the Russian Federation, Foreign citizens serving in the Russian army under contract to be able to obtain citizenship of Russia under a simplified procedure,” The State Duma, September 20, 2022, http://www.duma.gov.ru/en/news/55276/.
[44] “Nepali Gurkhas enlist as contract soldiers for Russia's Wagner Group in Ukrainian conflict,” MyIndMakers, June 27, 2023, https://www.myind.net/Home/viewArticle/nepali-gurkhas-enlist-as-contract-soldiers-for-russias-wagner-group-in-ukrainian-conflict or “Investigation Reveals Nepali Soldiers Undergoing Training At Russian Military Camps,” Outlook, June 26, 2023, http://www.outlookindia.com/international/investigation-reveals-nepali-soldiers-undergoing-training-at-russian-military-camps-news-298099.
[45] “Nepali Gurkhas Joining Ukraine War as Contract Soldiers for Russia Under Wagner: Reports,” Statecraft, June 28, 2023, https://www.statecraft.co.in/article/nepali-gurkhas-joining-ukraine-war-as-contract-soldiers-for-russia-under-wagner-reports#:~:text=According%20to%20reports%2C%20Nepali%20Gurkhas,opportunities%20in%20the%20Indian%20Army.
[46] William B. Farrell, “Central Asia’s New Foreign Fighters Problem: The Russia-Ukraine War,” United States Institute of Peace, September 8, 2022, https://www.usip.org/publications/2022/09/central-asias-new-foreign-fighters-problem-russia-ukraine-war.
[47] Vijay Gokhale, “India’s Fog of Misunderstanding Surrounding Nepal–China Relations”
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