Campaign on Mercenaries

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A mercenary is a person who takes part in an armed conflict who is not a national of a Party to the conflict and "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".[1][2]

As a result of the assumption that a mercenary is exclusively motivated by money, the term "mercenary" carries negative connotations. There is a blur in the distinction between a "mercenary" and a "foreign volunteer", when the primary motive of a soldier in a foreign army is uncertain. For instance the French Foreign Legion and the Gurkhas are not mercenaries under the laws of war, but some journalists do describe them as mercenaries. In 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 it is stated:

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 specially 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.

It should be noted that many countries, including the United States, are not signatories to the Protocol Additional GC 1977 (APGC77). So although it is the most widely accepted international definition of a mercenary, it is not definitive.

According to the GC III, a captured soldier must be treated as a lawful combatant, and, therefore, is a Protected Person, with Prisoner of War (PoW) status until facing a competent tribunal (GC III Art 5). That tribunal may decide that the soldier is a mercenary using criteria in APGC77 or some equivalent domestic law. 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", because they are still covered by GC IV Art 5. The only exception to GC IV Art 5 is if he is a national of the authority imprisoning him, but, 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 are not PoWs, they cannot expect repatriation at war's end. The best known post-World War II example of this was on June 28, 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 July 10, 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 soldiers and are entitled to Geneva Convention protections.

The situation during the Occupation of Iraq 2003 – shows the difficulty in defining what is a mercenary soldier. While the United States governed Iraq, any U.S. citizen working as an armed guard could not be defined 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, some would say that unless they declare themselves residents in Iraq, i.e. a resident of territory controlled by a Party to the conflict (APGC77 Art 47.d), they are mercenary soldiers, if one does not consider the United States to be a party to the U.S. Occupation of Iraq. However, those who acknowledge the United States to be a party to the conflict would insist that U.S. armed guards cannot be called mercenaries (APGC77 Art 47.d). If no trial of accused mercenaries occurs, allegations evaporate in the heat of accusations and counter-accusations and denials. Coalition soldiers in Iraq supporting the interim Iraqi government are not mercenaries, because they either are of the armed forces of a Party to the conflict or they have been 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).

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]. 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 by sovereign states[7].

See also privateer, Letter of marque, private military contractor.

[edit] Mercenaries and municipal (domestic) law

Most countries forbid their citizens fighting in foreign wars unless they are under the control of their own national armed forces:

• 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).
• 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 Iraq occupation 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.[8]
• The Anti-Pinkerton Act of 1893 (5 USC 3108) forbade the US Government from using Pinkerton National Detective Agency employees, or similar private police companies, as strikebreakers. In 1977, the US Fifth Circuit Court of Appeals interpreted this statute as forbidding the US Government's employing companies offering mercenary, quasi-military forces as strikebreakers and armed guards for hire. United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 462 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978). A 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. 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, et cetera. Otherwise, civilians with US 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 US Comptroller General rejected bid protest arguments that US 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.[9] Yet, on 1 June 2007, the WASHINGTON POST newspaper 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. The contract, worth about $475 million, calls for a private company to provide intelligence services to the US Army and security for the Army Corps of Engineers on reconstruction work in Iraq. The case, which is being heard by the US 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 who operate with little oversight.[10]
• In 1927, Switzerland banned its nationals from serving as mercenaries, except for being the Vatican Swiss Guards.
• In Austria, anyone who voluntarily serves in the armed forces of another country automatically loses Austrian citizenship.
• Great Britain passed the Foreign Enlistment Act in the late 18th century, making it illegal for British subjects to join the armed forces of any state warring with another state at peace with Great Britain. In the Greek War of Independence British volunteers fought with the Greek rebels, which could have been illegal; 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. The 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 (see above); nothing happened. o Note the existence of the Atholl Highlanders, apparently Europe's only legal, private army. By a quirk of history, this is a Scottish regiment, not part of the British Army, commanded by the Duke of Atholl; it is is a primarily ceremonial armed force.
• In Italy, it is illegal to recruit Italians on Italian soil for fighting in behalf of a foreign government without the approval of the Italian government.

Private Military Companies (PMCs)

The Private military company (PMC) is the contemporary strand of the mercenary trade, providing logistics, soldiers, military training, and other services. Thus, PMC contractors are civilians (in governmental, international, and civil organizations) authorized to accompany an army to the field; hence, the term civilian contractor. Nevertheless, PMCs may use armed force, hence defined as: legally established enterprises that make a profit, by either providing services involving the potential exercise of [armed] force in a systematic way and by military means, and/or by the transfer of that potential to clients through training and other practices, such as logistics support, equipment procurement, and intelligence gathering.[12]

Private paramilitary forces are functionally mercenary armies, not security guards or advisors, however, national governments reserve the right to control the number, nature, and armaments of such private armies, arguing that, provided they are not pro-actively employed in front-line combat, they are not mercenaries. That said, PMC "civilian contractors" have poor repute among professional government soldiers and officers — the US Military Command have questioned their war zone behavior. In September 2005, Brigadier General Karl Horst, deputy commander of the Third Infantry Division charged with Baghdad security after the 2003 invasion, said of DynCorp and other PMCs in Iraq: These guys run loose in this country and do stupid stuff. There's no authority over them, so you can't come down on them hard when they escalate force... They shoot people, and someone else has to deal with the aftermath. It happens all over the place.[13]

If PMC employees participate in pro-active combat, the press call them mercenaries, and the PMCs mercenary companies. In the 1990s, four news media-identified mercenary companies, and the wars were:

• Executive Outcomes - Angola, Sierra Leone, and other locations worldwide (closed 31 December 1998)
• Sandline International - Papua New Guinea, Sierra Leone (closed 16 April 2004)
• Gurkha Security Guards, Ltd - Sierra Leone.
• DynCorp International - Bosnia, Somalia, Angola, Haiti, Colombia, Kosovo, Kuwait, Afghanistan (active)
• Defensecurity [1] - Iraq, Afġānistān, Kuwait, Colobia, Kossovo, East Timor (active)

In 2004 the PMC business was boosted, because the US and Coalition governments hired them for security in Iraq. In March 2004, four Blackwater USA employees guarding food shipments were attacked and killed in Fallujah, in a videotaped attack; the killings and subsequent dismemberment were a cause for the First Battle of Fallujah. Afghan war operations also boosted the business, many PMC employees are bodyguards for heads of state such as Hamid Karzai.[citation needed]

The United Nations disapprove of PMCs (still, the UN hired Executive Outcomes for African logistic support work). Controversy arose elsewhere, Dyncorp's pedophiliac sex trafficking in Bosnia during the Balkan war of the 1990s. The question is whether or not PMC soldiers are as accountable for their war zone actions as are the Bosniak armed forces. A common argument for using PMCs (used by the PMCs themselves; Sandline's Corp's whitepapers), is that PMCs may be help combat genocide and civilian slaughter where the UN are unwilling or unable to intervene.[14]

In February 2002, a British Foreign and Commonwealth Office (FCO) report about PMCs noted that the military service demands of the UN and international civil organizations might mean that it is cheaper to pay PMCs than use soldiers. Yet, then, after considering using PMCs to support UN operations, the UN Secretary General, Kofi Annan, decided against it.

source: www.wikipedia.org

UN Annual Reports to the Commission on Human Rights: [[1]]