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April, 2023

The babushka had been dead for about two days. With no visible wounds, the evacuation team concluded that her death was likely the result of a lack of food and water during an already brutal Ukrainian winter. Just over a kilometer from the front line in heavily contested Bakhmut, a small city in Donetsk Oblast, the woman's house was continually subject to Russian artillery and mortar fire—rounds from which now
began to explode overhead. The impacts followed the team as they rushed to their vehicles, landing as close as 50 meters.1

They were being tracked.

Andy Milburn's Mozart Group evacuated hundreds of civilians from the Donbas in 2022. However, in an article published in The Atlantic in April of that year, journalist Graeme Wood misguidedly labeled Millburn as a foreign fighter.2 Despite his extensive American special operations background, Hong Kong roots, and British accent might make him foreign to Ukraine, Milburn was by no means a fighter in the country. He and his team were civilian volunteers, not mercenaries for hire.

Notwithstanding the domestic legal ramifications posed to Milburn under the Neutrality Act, which prescribes up to a three-year stint in prison for fighting governments at peace with the United States, the term foreign fighter and its disparaging close cousin, mercenary, carry severe implications under international humanitarian law (IHL).

Under IHL, mercenaries fight without a license to kill, making them unprivileged combatants who forfeit civilian and prisoner-of-war protections. Accordingly, they risk lethal targeting—or, if captured—are subject to criminal prosecution under domestic courts. Nevertheless, soldiers of fortune understand the risks inherent to their profession.

However, when civilian noncombatants like Milburn are repeatedly mischaracterized as mercenaries, an adversary can weaponize IHL to justify targeting otherwise protected individuals. After all, "repeat a lie often enough, and it becomes the truth."3  While the Mozart Group has become defunct as of February 2022, Milburn and his volunteers have been actively working to restart the group, albeit under a new, undisclosed name.

Milburn started Mozart with businessman Andy Bain in March 2022 after arriving to cover the early days of the invasion for Task and Purpose. Witnessing Nike-clad teenagers trade in their books for Kalashnikovs, Milburn wrote his "four obligatory articles" for the publication and decided that he "didn't want to be [just] an observer" anymore.4  Given their unique risk calculus, he realized that special operations veterans could venture closer to the front lines than other do-gooders to give fresh-faced recruits and stranded denizens a fighting chance.

Accordingly, Mozart's mission was to provide medical care and survival training, perform evacuations, and deliver life-sustaining supplies to those who refused to abandon their homes in ravaged frontline communities. While his volunteers wore body armor and helmets for safety, they were unarmed. Milburn made this aspect of the job abundantly clear to new prospects, stating that, "If you're looking to get your gun on, you're not working for me."5 As a result, he recruited individuals with high emotional intelligence and not gunslingers.6

Nevertheless, the Russian Defense Ministry considers "all foreign volunteers in Ukraine" mercenaries, essentially greenlighting attacks on foreign groups.7 After going viral on social media for their daring rescues in Bakhmut, members of the Mozart Group became media darlings in the West—a sui generis organization of selfless heroes who, according to Milburn, were filling a niche no one else was.8 Combined with its newfound celebrity, Mozart's namesake—a clever jab at the infamous Wagner Group—aroused the ire of Wagner leader and Putin confidant Yevgeny Prigozhin, placing Milburn and his volunteers in his crosshairs.9

But why did Prigozhin care? It was not that Mozart was physically threatening, after all; Wagner was armed, and Mozart's volunteers weren't. Aside from satisfying the affront to his ego, the answer lies within the Russian emphasis on information warfare. Despite Wagner's laundry list of war crimes, Prigozhin realized the value of weaponizing IHL to shape a narrative of Mozart as mercenary, thereby sowing confusion over their civilian protections against direct attack.

Posting on his Telegram channel in November 2022, Prigozhin alleged that Milburn had assumed direct command of the 4th Ukrainian National Guard Brigade and was "participat[ing] in the conflict" in Bakhmut10.  Russian state-owned disinformation networks like Russia Today and TASS also echoed this unfounded narrative, referring to Mozart as a "mercenary group" and "private military organization" in their stories.11 The same day, Mozart's website suffered a sustained distributed denial of service (DDoS) attack, presumably to hinder a rebuttal.12

Article 47 of Additional Protocol 1 to the 1949 Geneva Convention, to which Russia and Ukraine are parties, defines a mercenary as a person recruited to engage in direct hostilities motivated by material compensation in substantial excess of the amount given to a party to the conflict's armed forces members. In addition, this individual is neither a national, resident, member of the armed forces, or on some official duty for a party to the conflict.13

Although Ukraine is a party to the more recent 1989 International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries, Russia is not.14 Therefore, Russia is not subject to its obligations, which criminalize mercenary offenses and remove the requirement that a mercenary participates directly in hostilities. As a result, this article references the Additional Protocol 1 definition.

As defined by the International Committee of the Red Cross (ICRC) interpretive guidance of Additional Protocol 1, participating directly in hostilities involves directly inflicting death, injury, or destruction on the enemy.15 The separation between direct and indirect hostilities predicates the principle of distinction between combatants and civilians—the cornerstone of IHL. Civilians, immune from direct attack, are classified as such until they directly partake in hostilities and lose their protections. Because they do not have the "privilege" of engaging in direct hostilities, they may also face criminal prosecution.16

Kremlin disinformation outlets might incorrectly insinuate that by training recruits who, through an "uninterrupted chain of events," will go on to kill Russian soldiers upon reaching the front; Milburn's volunteers engage in direct hostilities and are, therefore, mercenaries.17 However, because harm is not "brought about in one causal step," their efforts amount to mere indirect participation.18 In the ICRC's words, even if "indispensable to its causation ... acts that merely build ... the capacity of a party to harm its adversary" do not amount to direct hostilities under IHL.19

Mozart provided its services at no cost, compared to predatory companies and individuals that charge up to $10,000 a head for their evacuation services.20 With fifty volunteers from around the world, they burned through $175,000 each month to fund food, fuel, equipment, and stipends to cover volunteers' basic living expenses, according to Milburn.21 Despite repeated requests for Western governments to contribute, Mozart received no government funding, likely due to concerns that increasing involvement could result in an escalation spiral.22

Consequently, by the end of 2022, Mozart had operated off of a million dollars in donations from several private sources. These included Bain's Ukraine Freedom Fund, Milburn's Task Force Sunflower, charity Allied Extract, Safehouse Global, and funds from Milburn's personal Venmo and PayPal accounts.23 However, with the loss of Allied Extract in September 2022, Mozart allegedly looked into paid opportunities outside of Ukraine to keep operations running.24 Struggling to make ends meet, Mozart's media-generated façade of perfection fell apart as the whiskey flowed, and deep-seated personality differences generated fissures between the "two Andy's".25

Their spat climaxed when Bain filed his lawsuit, alleging that Milburn diverted funds from the company via Task Force Sunflower, insisted on personal compensation payments of $35,000 per month, and violated of Department of State International Traffic in Arms Regulations (ITAR) by providing military training to a foreign entity without a license from the  State Department.26 Subsequently, Milburn levied counter-accusations against Bain's integrity, citing audio recordings that purportedly reveal an attempt to sell his majority stake in the company to the Taliban.27 A nasty divorce is underway, with Mozart as the child caught in the middle.

In an interview with Newsweek in October 2022, Milburn proudly asserted, "Any mercenary would scoff at what we pay our guys ... the Ukrainian soldiers we train get paid more." While this standard may have held for his volunteers, if Bain's claims are valid, Milburn's monthly salary amounted to about 20 percent of Mozart's monthly expenses—a selfish profit compared to the evacuations the money could have funded. Bain's accusations only fuel the narrative that the group's members are motivated by material compensation. Both he and Milburn have handed the Russian information warfare machine extra ammunition, at the expense of common Ukrainians.

In an interview with author Peter Maguire, Milburn once remarked that being limited by a stipend "ensures that we don't have people risking their lives for money," since "your most valuable asset is your reputation."28 With his reputation tarnished, one might expect Milburn to lay low to escape the biting teeth of the news cycle. Instead, he is eager to continue evacuations, and so are his loyal volunteers, who still view him as an inspiring leader, despite his flaws.29

This is what makes Mozart's volunteers unique—an undying dedication to their humanitarian mission at a great personal sacrifice—and the exact opposite of Wagner. If Milburn truly believes that reputation is paramount, he should actively work to undo the damage the lawsuit has done and return to his roots. The author recommends that he focus on the humanitarian side of his business to avoid ITAR and accusations by Russia of participation in hostilities. Milburn should also stick to pro-bono work to cement his altruistic intentions and double down on fundraising, lest he and his volunteers become yet another government contractor in the milieu.

In 1977, the ICRC remarked, "There are few words which suffer greater misuse these days than the term mercenary."  Nearly 40 years later, this statement still holds. Undoubtedly, Russian disinformation efforts will continue to label Milburn and his volunteers as mercenaries to distort reality. Consequently, Milburn must learn from his past missteps to minimize his organization's exposure to information warfare. In addition, mischaracterizations of Milburn and his volunteers by Western media may also unintentionally give Prigozhin and Russian disinformation outlets credibility. Words matter, and journalists must also do their part to ensure their writing is accurate in an informatized age.



About the Author

Alex Choy is an Army Officer stationed in Hawaii. He obtained his undergraduate degree in Political Science with a Concentration in International Relations at the University of California, Los Angeles in 2021.

The views expressed are those of the author and do not reflect the official policy or position of the US Army, Department of Defense, or the US Government.


Footnotes

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