 | Mercenary: Encyclopedia II - Mercenary - Mercenaries and the laws of war
Mercenary - Mercenaries and the laws of war
See also laws of war.
In the Protocol Additional to the Geneva Conventions (GC) 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
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 U.S. are not signatory to the Protocol Additional GC 1977 (APGC77). So although it is the mostly widely accepted, it is not definitive.
Under GC III if a soldier is captured by an enemy, he must be treated as a lawful combatant and therefore a Protected Person which for a soldier is as a Prisoner of War (POW) until the soldier has faced a competent tribunal (GC III Art 5). That tribunal may decide that the person is a mercenary using criteria in APGC77 or some domestic law equivalent. At that point the mercenary becomes an unlawful combatant but they must still 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 they are a national of the authority which is holding them but in which case they would not be a mercenary under APGC77 Art 47.d.
If after a regular trial, a captured soldier is found to be a mercenary, then they can expect to be treated as common criminals and may face execution. As they are not POWs they can not expect repatriation at the end of the war. The best known, post-World War II, example of this was on June 28, 1976 when an Angolan court sentenced three Britons and an American to death and nine others to prison terms ranging from 16 to 30 years. The four sentenced to death were shot by a firing squad on July 10, 1976[1].
The legal status of civilian contractors depends upon the nature of their work and their nationality in respect of the combatants. But if they have not in fact, taken a direct part in the hostilities (APGC77 Art 47.b) they are not mercenaries and are entitled to the protection of the Geneva Conventions.
The situation during the Occupation of Iraq 2003 – shows how difficult it is to define what a mercenary is. While the United States governed the country, any U.S. citizen who worked as an armed guard could not be called a mercenary because they were a national of a Party to the conflict (APGC77 Art 47.d). With the handover of power to the interim Iraqi government it could be argued that unless they declare that they are a resident in Iraq i.e. a resident of territory controlled by a Party to the conflict (APGC77 Art 47.d), they are now mercenaries. If no trial of the people accused of being mercenaries takes place, then the allegations tend to evaporate in a spiral of accusations, denials and counter-accusations. It should be noted that Coalition soldiers in Iraq who are supporting the interim Iraqi government are not mercenaries, because either they are part 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[2]. 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[3].
See also privateer, Letter of marque, private military contractor.
Mercenary - Gurkhas and French Foreign Legionnaires
The two best known units in which nationals of a country serve in another nation's armed forces are the British Brigade of Gurkhas and the French Foreign Legion. Soldiers who serve in these two elite units are not mercenaries.
British Gurkhas are fully integrated soldiers of the British Army. They operate in formed units of the Brigade of Gurkhas and abide by the rules and regulations under which all British soldiers serve[4], (Similar rules apply for Gurkhas serving in the Indian Army.) French Foreign Legionnaires are in formed units of the French Foreign Legion which is deployed and fights as an organized unit of the French Army. This means that as members of the armed forces of Britain or France they are not mercenaries under APGC77 Art 47.e and APGC77 Art 47.f.
Mercenary - Mercenaries and domestic law
Some countries try to stop their citizens fighting in conflicts unless they are under the control of their own 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" which banned citizens, or residents, from any involvement in foreign conflicts except in humanitarian operations unless a government committee gave its approval for a deployment. In 2005 the legislation was being reviewed by the government because of South African citizens working as security guards in Iraq during the Iraq occupation and the fallout of the case against Mark Thatcher for the "possible funding and logistical assistance in relation to an alleged attempted coup in Equatorial Guinea" organised by Simon Mann.
- Under United States law (the "Neutrality Act"), an American citizen who participates in an armed conflict to which the United States is neutral may be subject to criminal penalties. (ADDED NOTE: In actuality, the Neutrality Act only prohibits citizens from participating in conflicts, that the U.S. is involved in, on the side of states that the government has declared war, also, it appears to have been repealed.)
- Switzerland banned its nationals from serving as mercenaries in 1927 with the one exception being the Vatican Swiss Guards.
- In Austria anyone who voluntarily serves in the armed forces of another nation automatically looses his 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 which was at war with another state at peace with Great Britain. During the Greek War of Independence a number of British volunteers fought with the Greek rebels, which could have been illegal; however it was unclear whether the Greek rebels were a "state" for the purposes of this Act, but the law was clarified to say that they were. There was some talk of using this Act against British people who fought for the International Brigade in the Spanish Civil War and the FNLA in the Angolan Civil War (see above) but nothing happened.
Other related archives10 September, 1035, 1043, 1066, 11 November, 12 August, 14th Century, 1500 BC, 15th century, 16 April, 16th century, 18th century, 1942, 1949, 1970s, 1976, 1977, 1979, 1989, 1995, 1998, 20 October, 2001, 2002, 2003, 2004, 27 August, 31 December, 333 BC, 334 BC, 380, 4 December, 401 BC, 484 BC, 8 June, Julius Caesar, Alexander the Great, Almogavars, Anabasis, Ancient Egypt, Anglo-Saxons, Angolan Civil War, Aragon, Artaxerxes II, Arthur Conan Doyle, August 25, Austria, BBC, Balearic Islands, Battle of Cunaxa, Battle of Fallujah, Battle of Stamford Bridge, Battle of Thermopylae, Battle of the Granicus River, Battletech, Bertrand Duguesclin, Bessi, Black Sea, Blackwater USA, Bob Denard, Brigade of Gurkhas, British Army, Byzantine Emperors, Byzantine Empire, Cameroon, Carthage, Casablanca, Catalan Company, Catalonia, Childe Cycle, China, City of Heroes, Clearchus, Cloud Strife, Comoros, Congo Crisis, Costas Georgiou, Cyrus the Younger, Darius III, David Drake, Demaratus, Dii, El Cid, Equatorial Guinea, Europe, European, Executive Outcomes, FNLA, Fallujah, Final Fantasy VII, Flight of the Wild Geese, Foreign and Commonwealth Office, France, Frederick Forsyth, French Army, French Foreign Legion, Full Metal Panic!, GC III, GC IV, Gordon R. Dickson, Great Britain, Greece, Greek, Greek War of Independence, Hammer's Slammers, Harald III of Norway, Harold Godwinson, Hoover Institution, Indian Army, International Brigade, Iraq, Iraq occupation, Jagged Alliance, Jerry Pournelle, John Hawkwood, July 10, June 28, Letter of marque, LucasArts, MPLA, Macedonia, Malabo, Mark Thatcher, Memnon of Rhodes, Mercedes Lackey, Mercenaries: Playground of Destruction, Metal Gear, Mike Hoare, Newsweek International, Niccolò Machiavelli, Nick du Toit, Nigerian Civil War, North Korea, Occupation of Iraq 2003 –, Owain Lawgoch, Patrick Sarsfield, Persian Empire, Pharaoh, PlayStation 2, Policy Review, Private military companies, Project Gutenberg, Protocol I, Punic Wars, Punic wars, Ramesses II, Revolutionary United Front, Roger de Flor, Roland the Headless Thompson Gunner, Roman Empire, Romanized, Russian Mafia, Sandline International, Schlock Mercenary, Scottish clan, Seychelles, Shakespeare, Sierra Leone, Simon Mann, Sol Yurick, Soldier of Fortune, Sons of Mars, South Africa, South Korea, Spanish Civil War, Spartans, Splinter Cell, Swiss, Swiss Guard, Switzerland, Syracuse, Taifa, Ten Thousand, The A-Team, The Brookings Institution, The Dogs of War, The Magnificent Seven, The Prince, The Seven Samurai, The Warriors, The World Today, Thomas More, Thracian, Treaty of Limerick, UN, Ubisoft, United Nations, United States, Utopia, Varangian Guard, Varangians, Vatican Swiss Guards, Warren Zevon, Xbox, Xenophon, Xerxes I, anime, apartheid, arquebuses, artillery, barbarians, city-states, civil war, competent tribunal, condottieri, corps, coup, epithet, foederati, genocides, home guard, hovercraft, landsknechts, lawful combatant, laws of war, legions, logistics, magazine, paramilitary, pejorative, piracy, private military contractor, privateer, ronin, science fiction, security guards, slingshooters, soldier, sovereign states, unlawful combatant, video game, yojimbo
 Adapted from the Wikipedia article "Mercenaries and the laws of war", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki |
