Mercenary

Leonardo da Vinci's Profilo di capitano antico, also known as il Condottiero, 1480. Condottiero meant "leader of mercenaries" in Italy during the Late Middle Ages and the Renaissance.

A mercenary[1] is an individual who is hired to take part in an armed conflict but is not part of a regular army or other governmental military force.[2][3] Mercenaries fight for money or other recompense rather than for political interests. In the last century, mercenaries have increasingly come to be seen as less entitled to protections by rules of war than non-mercenaries. Indeed the Geneva Conventions declares that mercenaries are not recognized as legitimate combatants and do not have to be granted the same legal protections as captured soldiers of a regular army.[4] In practice, whether or not a person is a mercenary may be a matter of degree, as financial and political interests may overlap.

Laws of war

Protocol Additional GC 1977 (APGC77) is a 1977 amendment protocol to the Geneva Conventions. Article 47 of the protocol provides the most widely accepted international definition of a mercenary, though not endorsed by some countries, including the United States. The 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 states:

Art 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is especially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, 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.

All the criteria (a – f) must be met, according to the Geneva Convention, for a combatant to be described as a mercenary.

According to the GC III, a captured soldier must be treated as a lawful combatant and, therefore, as a protected person with prisoner-of-war status until facing a competent tribunal (GC III Art 5). That tribunal, using criteria in APGC77 or some equivalent domestic law, may decide that the soldier is a mercenary. At that juncture, the mercenary soldier becomes an unlawful combatant but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered by GC IV Art 5. The only possible exception to GC IV Art 5 is when he is a national of the authority imprisoning him, in which case he would not be a mercenary soldier as defined in APGC77 Art 47.d.

If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. As mercenary soldiers may not qualify as PoWs, they cannot expect repatriation at war's end. The best known post-World War II example of this was on 28 June 1976 when, at the end of the Luanda Trial, an Angolan court sentenced three Britons and an American to death and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on 10 July 1976.[5]

The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" (APGC77 Art 47.b), they are not mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention (GCIII 4.1.4).

On 4 December 1989, the United Nations passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention.[6] Article 1 contains the definition of a mercenary. Article 1.1 is similar to Article 47 of Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermin[e] the territorial integrity of a State;" and "Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation..." – under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.

Critics have argued that the convention and APGC77 Art. 47 are designed to cover the activities of mercenaries in post-colonial Africa and do not address adequately the use of private military companies (PMCs) by sovereign states.[7]

The situation during the Iraq War and the continuing occupation of Iraq after the United Nations Security Council-sanctioned hand-over of power to the Iraqi government shows the difficulty of defining a mercenary soldier. While the United States governed Iraq, no U.S. citizen working as an armed guard could be classified as a mercenary because he was a national of a Party to the conflict (APGC77 Art 47.d). With the hand-over of power to the Iraqi government, if one does not consider the coalition forces to be continuing parties to the conflict in Iraq, but that their soldiers are "sent by a State which is not a Party to the conflict on official duty as a member of its armed forces" (APGC77 Art 47.f), then, unless U.S. citizens working as armed guards are lawfully certified residents of Iraq, i.e., "a resident of territory controlled by a Party to the conflict" (APGC77 Art 47.d), and they are involved with a fire-fight in the continuing conflict, they are mercenary soldiers. However, those who acknowledge the United States and other coalition forces as continuing parties to the conflict might insist that U.S. armed guards cannot be called mercenaries (APGC77 Art 47.d).

National laws

The laws of some countries forbid their citizens to fight in foreign wars unless they are under the control of their own national armed forces.[8][9]

Austria

If a person is proven to have worked as a mercenary for any other country while retaining Austrian citizenship, his or her Austrian citizenship will be revoked.

France

In 2003, France criminalized mercenary activities, as defined by the protocol to the Geneva convention for French citizens, permanent residents and legal entities (Penal Code, L436-1, L436-2, L436-3, L436-4, L436-5). This law does not prevent French citizens from serving as volunteers in foreign forces. The law applies to military activities with a specifically mercenary motive or with a mercenary level of remuneration.

Germany

It is an offence "to recruit" German citizens "for military duty in a military or military-like facility in support of a foreign power" (§ 109h StGB). Furthermore, a German who enlists in an armed force of a state he is also citizen of, risks the loss of his or her citizenship (§ 28 StAG).

South Africa

In 1998, South Africa passed the Foreign Military Assistance Act that banned citizens and residents from any involvement in foreign wars, except in humanitarian operations, unless a government committee approved its deployment. In 2005, the legislation was reviewed by the government because of South African citizens working as security guards in Iraq during the American occupation of Iraq and the consequences of the mercenary soldier sponsorship case against Mark Thatcher for the "possible funding and logistical assistance in relation to an alleged attempted coup in Equatorial Guinea" organized by Simon Mann.[10]

United Kingdom

In the United Kingdom, the Foreign Enlistment Act 1819 and the Foreign Enlistment Act 1870 makes it unlawful for British subjects to join the armed forces of any state warring with another state at peace with Britain. In the Greek War of Independence, British volunteers fought with the Greek rebels, which could have been unlawful; it was unclear whether or not the Greek rebels were a "state" per the Foreign Enlistment Act, but the law was clarified, saying that the rebels were a state. In 1896, a Privy Council report noted that there had been no prosecutions under the Foreign Enlistment Acts and considered them unenforceable.

The British government considered using the Act against British subjects fighting for the International Brigade in the Spanish Civil War and the FNLA in the Angolan Civil War, though in the end it chose not to on both occasions.

United States

The Anti-Pinkerton Act of 1893 (§ 3108) forbade the U.S. government from using Pinkerton National Detective Agency employees, or similar private police companies. In 1977, the United States Court of Appeals for the Fifth Circuit interpreted this statute as forbidding the U.S. government from employing companies offering "mercenary, quasi-military forces" for hire (United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 462 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978)). There is a disagreement over whether or not this proscription is limited to the use of such forces as strikebreakers, because it is stated thus:

The purpose of the Act and the legislative history reveal that an organization was "similar" to the Pinkerton Detective Agency only if it offered for hire mercenary, quasi-military forces as strikebreakers and armed guards. It had the secondary effect of deterring any other organization from providing such services lest it be branded a "similar organization." The legislative history supports this view and no other.

— United States Court of Appeals for the Fifth Circuit, Weinberger v. Equifax, 1977

In the 7 June 1978 Letter to the Heads of Federal Departments and Agencies, the Comptroller General interpreted this decision in a way that carved out an exemption for "Guard and Protective Services".

A U.S. Department of Defense interim rule (effective 16 June 2006) revises DoD Instruction 3020.41 to authorize contractors, other than private security contractors, to use deadly force against enemy armed forces only in self-defense (71 Fed. Reg. 34826). Per that interim rule, private security contractors are authorized to use deadly force when protecting their client's assets and persons, consistent with their contract's mission statement. One interpretation is that this authorizes contractors to engage in combat on behalf of the U.S. government. It is the combatant commander's responsibility to ensure that private security contract mission statements do not authorize performance of inherently governmental military functions, i.e. preemptive attacks or assaults or raids, etc.

Otherwise, civilians with U.S. Armed Forces lose their law of war protection from direct attack if and for such time as they directly participate in hostilities. On 18 August 2006, the U.S. Comptroller General rejected bid protest arguments that U.S. Army contracts violated the Anti-Pinkerton Act by requiring that contractors provide armed convoy escort vehicles and labor, weapons, and equipment for internal security operations at Victory Base Complex, Iraq. The Comptroller General reasoned the act was unviolated, because the contracts did not require contractors to provide quasi-military forces as strikebreakers.[11] Yet, on 1 June 2007, The Washington Post reported: "A federal judge yesterday ordered the military to temporarily refrain from awarding the largest security contract in Iraq. The order followed an unusual series of events set off when a U.S. Army veteran, Brian X. Scott, filed a protest against the government practice of hiring what he calls mercenaries, according to sources familiar with the matter." Though Scott had filed the protest at the Court of Federal Claims, the court order was the result of other bidders intervening in the case. Scott did not submit a bid; however, when the bidders who did submit a bid tried to protest at the GAO, their GAO bid protests were dismissed due to the fact that Scott had filed a case at the court and deprived the GAO of further jurisdiction in the matter. Scott's case had been dismissed at the GAO and was eventually dismissed at the court. The court order was in response to one of the legitimate contractors and Brian X. Scott had no role in obtaining that order.[12]

The contract, worth about $400 million, calls for a private company to provide intelligence services to the U.S. Army and security for the Army Corps of Engineers on reconstruction work in Iraq. The case, which is being heard by the U.S. Court of Federal Claims, puts on trial one of the most controversial and least understood aspects of the Iraq war: the outsourcing of military security to an estimated 20,000 armed contractors.[12]