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The general definition of mercenaries focuses on the following two elements: the foreign nature of the military service provided and the primarily financial motivation in providing combat service. Mercenarism refers to the hiring of foreign individuals or groups of individuals by a state or entity to serve in a combat role for private gain. In 1987 the United Nations Commission on Human Rights appointed Special Rapporteur Enrique Bernales Ballesteros of Peru to analyze, monitor, and report on all forms of mercenarism. Despite growing condemnation, mercenaries continue to exist in many different forms and are involved in diverse activities.

Historical Overview

Mercenarism dates back to antiquity, a time during which armies were predominantly comprised of foreign professional soldiers seeking personal gain. The first account of mercenarism was recorded by Xenophon in Anabasis; there he noted Cyrus's use of ten thousand mercenaries against his brother Artaxexers in a bid for the Persian throne in 401 BCE. A large number of these foreign soldiers were Arcadians, Achaeans, and Peloponnesians who had endured economic instability following the Peloponnesian War. In 334 BCE the Persians used Greek mercenaries to fight against Alexander the Great, who in turn brought more than 44,000 mercenaries to Asia Minor. His Macedonian successors also used highly trained mercenary armies to wage war, as did Greek city-states in the fourth century BCE. The First Punic War between Rome and Carthage (264–261 BCE) originated in mercenary activity, and in the second century German mercenaries played a pivotal role in defending the Roman Empire. For more than one thousand years mercenaries were the backbone of the army of the Eastern Roman Empire. The rulers of Byzantium and Carthage also relied on the military expertise of foreign soldiers in defending their respective empires.

Throughout the Middle Ages the phenomenon of mercenaries persisted and their recruitment increased. In the twelfth century mercenaries were mostly used for colonial expansion and for maintaining foreign domination in colonized countries. The Crusades gave rise to a more anarchic form of mercenarism, including postconflict exploits following the emergence of mercenary groups. The formation of coalitions in response to these groups eventually led to their temporary defeat in the twelfth and thirteen centuries. Comprised of a variety of nationalities, including English, French, Flemish, German, Italian, and Catalan fighters, these groups reappeared as Grandes Compagnies during the One Hundred Years War (1337–1453) and were finally disbanded in 1453. Between the thirteenth and sixteenth centuries the condottieri, freelance commanders of Catalan, English, German, and Hungarian troops, were hired in Italy to recruit and arm men and to conduct hostilities within the Italian republics. The rise of the absolute monarchy in the fifteenth and sixteenth centuries led to an enhancement in the status of mercenaries, whom rulers relied on to fight wars and to maintain order within their kingdoms. Mercenarism was thus relatively institutionalized during the feudal period; kings and lords had at their disposal a collection of individuals willing to fight for pay.

Both the progressive extinction of privatized war and the consolidation of the nation-state eventually gave rise to a new form of mercenarism. Traditionally, the mercenary had sold his services to a foreign state or entity. However, in the fifteenth and sixteenth centuries a prescribed number of soldiers were temporarily rented out by one state to another foreign sovereign. This procurement of foreign troops was extensive during the Renaissance and differs from the undisciplined mercenary companies of the Middle Ages. Swiss and German troops were leased regularly between the fifteenth and nineteenth centuries, and played an important role in the religious wars during this period. For example, the Swiss Guard, founded in the sixteenth century, continues to serve the Vatican. Widespread state practice gave mercenaries an international legal status and legitimacy until the eighteenth century, during which the rise of nationalism and the adoption of the standing army to defend the state led to a decline in mercenarism. The development of the law of neutrality in the nineteenth century, which generally prohibited the enlistment of a state's citizens in foreign armies, also prompted a regression of mercenary activities. This evolution was most notable in Europe, for colonial powers continued to rely on the use of local mercenaries in the Americas, Indies, and Africa.

In the twentieth century the practice of mercenarism evolved and reappeared in a different form. Mercenarism intensified within the context of decolonization in the 1960s and the recognition of the right to self-determination. These independent mercenaries, often referred to as "soldiers of fortune," "wild geese," or les affreux (the dreaded/horrible ones), surfaced in post-colonial Africa and were used to destabilize newly independent governments. By the 1960s, however, mercenaries were no longer accepted as an integral component of armed forces. The use of mercenaries nevertheless continued in the following decades, including their active participation in the civil wars in the Congo (1960–1963; 1964–1967), Nigeria (1968–1969), the Sudan (1970), Angola (1975), and Latin America in the 1980s. Also commonly referred to as traditional mercenaries—many of whom came from former colonial armies, including the French Foreign Legion and Belgian army—they threatened weak, newly independent nation-states, often influencing intrastate conflict on the African continent. During this time mercenary activities tended to be disorganized and undisciplined and were comprised of a relatively small number of individuals. Vital economic interests were often at stake and mercenarism involved activities such as insurgencies and counterinsurgencies, regime change, and civil conflicts.

International Law

Recently, the legal framework to prohibit mercenaries has been envisaged through norms regulating the general use of force between states. Of particular relevance to the question of mercenaries is Article 4 of the 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Convention V), which stipulates that "(c)orps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents." States that have chosen to remain neutral during an armed conflict are obliged under Article 4 to prevent the formation of mercenary groups on their territory for the purpose of intervention in the armed conflict. However, international humanitarian law (the law of armed conflict) made no formal distinction between mercenaries and other combatants prior to the adoption 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. Before that time mercenaries were regarded as respectable professionals and usually accorded prisonerof-war status when captured, thus benefiting from protection under the Third Geneva Convention relative to prisoners of war, provided that they met the conditions of Article 4.

According to Article 47 of Additional Protocol I, mercenaries are not entitled to prisoner-of-war status, although a state may grant them equivalent treatment if it so desires. Under Article 45 any captured combatant is presumed to be a prisoner of war until his or her status has been determined by a competent tribunal. If a mercenary is not granted combatant or prisoner-ofwar status, he or she must be treated as a civilian having unlawfully participated in armed conflict. In qualifying as a civilian, protection is afforded by Article 4 of Convention (IV) relative to the protection of civilians in times of war (Geneva, August 12, 1949), subject to certain conditions enumerated in Article 5. Furthermore, all parties to a conflict must observe the fundamental treatment and judicial guarantees afforded to persons affected by armed conflict and who find themselves in the hands of a party to the conflict (Article 75).

International humanitarian law does not address the issue of the legality of mercenary activities or prohibit the use of mercenaries by states or other entities. The law of armed conflict simply defines the status of mercenaries and the implications in the event of capture. According to the definition contained in Article 47 of Additional Protocol I, 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 or 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.

These requirements are cumulative in that they must all be applicable for an individual to be categorized as a mercenary. The narrow scope of this definition reflects a fundamental tenet of international humanitarian law, which is to ensure that the loss of special safeguards only occurs in very limited circumstances.

The law of armed conflict does not envisage protection in internal armed conflict (civil wars) for persons who would otherwise qualify as mercenaries in international armed conflict, because the status of combatant does not exist in situations of internal conflict. In an international armed conflict a prisoner of war cannot be convicted for having fought in a conflict, whereas in a civil war, no such immunity exists. Nevertheless, civil war mercenaries are entitled, at a minimum, to certain fundamental guarantees such as humane treatment and nondiscrimination (Common Article 3 of the Geneva Conventions). Out of battle mercenaries are also protected by applicable international human rights law and other applicable humanitarian law, especially Articles 4 and 5 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. Mercenaries in situations of internal armed conflict are also subject to the laws of the territory in which the conflict takes place.

In contrast to Additional Protocol I, the Convention for the Elimination of Mercenaries in Africa prohibits both mercenaries and mercenarism, which is considered a crime against peace and security in Africa regardless of whether committed by an individual, a group, an association, a state, or a state representative. Adopted by the Organization of African Unity (OAU) in 1977, the Convention, which came into force in 1985, defines the crime of mercenarism as "the attempt by an individual to enroll, or his enlistment or enrollment as a mercenary; the employment or support of mercenaries in any way; and when a State allows mercenary activities to be carried out within its territory or in any place under its control while intending to overthrow or undermine the constitutional order or territorial integrity of another State." Substantively, the definition of a mercenary contained in the OAU Convention differs little from that of Article 47 of Additional Protocol I. The OAU Convention is significant in that it creates a specific offense of mercenarism and contains a series of corresponding obligations, including the adoption of measures to eradicate mercenary activities, and the prosecution or extradition of those committing an offense under the Convention. Additionally, state representatives may be punished if a state accused of involvement in mercenary activities is brought before any competent OAU or international tribunal and is found to have breached the Convention. Whereas Additional Protocol I is internationally recognized, the OAU Convention is regional in scope, as it is only applicable to states in the African region that have completed the ratification process.

The International Convention Against the Recruitment, Use, Financing and Training of Mercenaries was adopted in 1989 and came into force on October 20, 2001. Its international scope is similar to that of Additional Protocol I, but the International Convention expands the definition of mercenary to cover situations other than armed conflict by including situations in which individuals are recruited to participate in a concerted act of violence for the purpose of overthrowing a government or undermining the constitutional order of a state, or infringing on the territorial integrity of a state. The International Convention identifies specific offenses, including the recruitment, use, financing, or training of mercenaries, or the attempt to do so. It also criminalizes the accomplice of any person who either commits or attempts to commit an offense cited in the Convention, regardless of whether the mercenaries in question have taken part in the concerted act of violence. States are obliged to refrain from taking part in any of the activities designated in the Convention and to prevent such activities by others through the adoption of appropriate measures. The prosecution of offenders at the national level is also set out within a framework established by the Convention. Although the International Convention is a binding instrument of international law, it lacks widespread ratification.

Generally, efforts to deal with the mercenary phenomenon, whether regionally or internationally, have met with little success. The various instruments lend themselves to different and sometimes contradictory interpretations, and a number of legal inadequacies and gaps make it difficult to accurately classify the act of mercenarism and identify those who commit it. According to United Nations (UN) Special Rapporteur Enrique Bernales Ballesteros, questions to which there are no definitive answers include the following: What is the status of foreigners who, following their entry into a country, acquires its nationality in order to cover up the fact that they are mercenaries in the service of either a third state or the other side in an armed conflict? What is the status of a nonresident national paid by a third state to undertake criminal activities against his or her own country of origin? What is the status of those with dual nationalities—one of them being that of the state against which they are carrying out criminal activities—who are paid either by the state of their other nationality or a third party? What are the limits of jus sanguinis, a right by which nationality or citizenship may be conferred to any person born to a parent who is a national or citizen of that state? In particular, what are the limits of jus sanguinis in armed conflict when those paid and sent to fight in the country of their ancestors invoke this right in either a domestic or international armed conflict? The definition of a mercenary contained in Article 47, although failing to address these questions, is almost literally repeated in the definitions adopted in both the OAU and International Conventions. According to the Special Rapporteur, "The relevant international legal instruments are but imperfect tools for dealing with the issue of mercenaries." Furthermore, these definitions fail to address recent changes that have taken place in mercenary activities.

The New Mercenaries

International restructuring and transition following the end of the cold war have revealed the need for alternative security measures in the absence of superpower support. This security vacuum includes, for example, the resurgence of extreme nationalism and separatism and ethnic and religious intolerance, and the inability of smaller states to contain internal security threats. The post–cold war period has thus witnessed the emergence of new categories of mercenaries and mercenary activities. Mercenary activities have increased and diversified in both theory and practice, and are no longer predominantly confined to the African continent. For example, mercenaries were used in wars that took place within the territory of the former Yugoslavia and in wars that affected some states having emerged from the former Union of Soviet Socialist Republics. They were also used in long-term conflicts, such as that in Colombia, and in attempts to destabilize political regimes, including Fidel Castro's communist government in Cuba. The modernization of mercenary activities has significantly altered mercenary practice, which has taken on complex and multifaceted forms in a variety of situations and contexts.

In the 1990s private security companies specializing in military services supplemented the use of traditional mercenaries. Groups of professionals have partially replaced the relatively small number of individuals that dominated the mercenary scene between the 1960s and 1980s. Such companies existed prior to the end of the cold war, including the condottieri and Grandes Compagnies of the Middle Ages and Renaissance period. Similar to their predecessors, private security companies contract their soldiers out to foreign entities, but have adapted to the needs and structure of the post–cold war world. Operational methods now include the offer of security services and military advice and assistance on the international market in return for money, as well as mining and energy concessions. The Special Rapporteur notes that private companies offering military, consultancy, and security services are now established on all five continents, and that some of these companies have recently obtained contracts worth tens of millions of United States dollars. Unlike traditional mercenaries, who are mostly covert in nature, private security companies are registered corporate companies. According to the Special Rapporteur, they are generally part of corporate holding companies and subsidiaries and take part in various services through other companies, including transport, communications, economic and financial consultancy, and health and sanitation services. In addition to sovereign governments and government entities, clients range from international organizations, foreign embassies, and nongovernmental organizations (NGOs) to multinational corporations that are usually involved in oil and exploration and mineral prospecting. The Special Rapporteur also notes that some of these private security companies provide training to combat forces or pilots for troop transport, offer specialized technical services, and on occasion actively participate in combat situations.

Some of the most important private security companies include Executive Outcomes (now disbanded), Military Professional Resource Institute, Defense Systems Ltd., and Sandline International. In April 1995 Executive Outcomes was hired by the government of Sierra Leone to confront the threat from a rebel army, the Revolutionary United Front (RUF). Executive Outcomes prompted the RUF to negotiate a peace settlement in November 1996, after having destroyed the rebels' headquarters in the southeastern part of the country. The success of Executive Outcomes in Sierra Leone, however, may be contrasted with the fact that it provided a temporary, short-term solution to the conflict. Once the company had withdrawn from this West African country in January 1997, the peace agreement disintegrated and violence erupted once again. According to the Special Rapporteur, the right to life, security, and peace, including the preservation of both the rule of law and democracy, are not matters that can be entrusted to private security companies. One of the most controversial aspects of this issue includes the claim that security companies operate legally because they sign their contracts with legitimate governments. However, according to the Special Rapporteur, responsibility for the internal order and security of a sovereign state lies with the state itself; it can neither transfer nor renounce these responsibilities. Despite the fact that in recent years security has been partially privatized and the state now shares this function, a number of limits should not be exceeded. According to the Special Rapporteur, companies should not actively participate in armed conflicts or recruit and hire mercenaries. Additionally, the state should retain the right to protect external borders or maintain public order. In short, companies should not attempt to replace the state in defending national sovereignty.

Moreover, the premise underlying the claim that security companies fill a critical void in offering an alternative security model cannot be confused with the effectiveness of the services offered and the nature of the acts that they carry out, according to the Special Rapporteur. For example, some activities conducted by mercenaries and the hiring of this type of professional services extend to other illicit activities, including arms trafficking, drug trafficking, terrorism, attempts to destabilize legitimate governments, and acts to take forcible control of valuable natural resources. According to the Special Rapporteur, the involvement of mercenaries in other criminal activities has also led to their participation in the commission of serious violations of human rights and of international humanitarian law. The concern thus lies with companies offering military security services on the international market that recruit, hire, and use mercenaries and the instances when these companies become involved in armed conflict.

The restrictive approach adopted by the UN in linking mercenaries with concerted acts of violence aimed at violating the right of peoples to self-determination and undermining the constitutional order of a state or its territorial integrity, while seeking substantial personal gain and material compensation, is such that private security companies, as presently constituted, do not fall within this definition. Although they do have some mercenary traits, the personnel that work for private military, advisory, training, and security companies, and the contracts concluded between such companies and states, cannot be described as completely mercenary, according to the Special Rapporteur. Loopholes encountered in the definition of mercenaries led the General Assembly to request, in December 1999, that the United Nations High Commissioner for Human Rights convene several expert meetings to study the current forms of mercenary activities and to propose recommendations for an updated legal definition that would provide a more effective prevention mechanism for and punishment of mercenary activities. This the Office of the High Commissioner did at two meetings where amendments to the 1989 International Convention were proposed.

Experts from various regions attending the first meeting in 2001 recommended that the review of the legal definition include the elements of motive, purpose, payment, type of action, and nationality, with particular attention given to the purpose for which a mercenary is hired. In relation to private security and military companies, the group of experts recommended that states introduce specific laws and regulations prohibiting these companies from participating in armed conflicts, creating private armies, engaging in illicit arms trafficking, recruiting mercenaries, and partaking in the illegal extraction of natural resources. Efficient firms offering a widespread range of services do exist, according to the experts. Opposition to such firms offering their services on the international market lies in their participation in armed conflicts through mercenary groups forming private armies, rather than in their operation per se or the private nature of such companies.

At the second meeting held in 2002, the experts analyzed issues concerning recent events related to mercenary activities, the mandate of the Special Rapporteur, the criminalization or penalization of mercenary activities, the definition of mercenary, state responsibility for mercenary activities, the relationship between terrorism and mercenary activities, and the regulation of private security companies that offer military assistance and consultancy services. In particular, analysis focused on the definition of mercenary, including aspects related to the legal framework within which the question arises and the difficulties in taking into consideration the various forms of mercenary activities. The experts did not, however, reach a consensus regarding the legal definition of mercenary, most notably with regard to the constituent elements, international treatment of the mercenary question, and identifying the nature of mercenary activity that required criminalization from activities which already constitute crimes under international law.

The Special Rapporteur has considered these elements in his own formulation of a new legal definition for a mercenary in his report to the United Nations General Assembly in its fifty-eighth session. In its resolution on the use of mercenaries as a means of violating human rights and impending the exercise of the right of peoples to self-determination, the General Assembly noted with appreciation the proposal of a legal definition of mercenaries by the Special Rapporteur, and requested that the Secretary-General seek member states' comments to include them in the report of the Special Rapporteur to the General Assembly. It also requested that the Special Rapporteur include specific recommendations to the General Assembly in its fifty-ninth session.

In his final report submitted to the United Nations Commission on Human Rights, the Special Rapporteur recommends that the Commission support the decision to circulate among states his new proposal, which consists of amendments to the first three articles of the 1989 Convention Against the Recruitment, Use, Financing, and Training of Mercenaries. The alternative definition covers unlawful acts, including the following: trafficking in persons, arms, and drug trafficking and other illicit trafficking, terrorism, transnational organized crime, actions to destabilize legitimate governments, and actions aimed at taking forcible control of valuable national resources. It also considers that mercenaries who directly participate in the commission of the crime be criminally responsible, and extends criminal liability to those who recruit, finance, employ, or train mercenaries to participate in criminal activities. Rather than limiting itself to the mercenary as an individual agent, the proposed definition includes mercenarism as a concept related to the responsibility of the state and to other organizations and individuals. The alternative definition also considers the participation of mercenaries in international and internal armed conflict, as well as concerted acts of violence. Given both that the definition of mercenary contained in Article 1 of the 1989 International Convention is difficult to apply in practice, and the consensus that a new definition should be established, the Special Rapporteur believes that the definition must be modified by amending the International Convention if mercenary activities are to be prevented, eradicated, and punished.

According to the Special Rapporteur, the amendment should be debated and approved within the existing text of the International Convention, without prejudice to Article 47 of Additional Protocol I to the 1949 Geneva Conventions. He also makes a number of suggestions, including the fact that domestic and international law must clearly differentiate between military consultancy services on the international market from participation in armed conflict, and from activities that could be conceived as intervention in matters of public order and security that are the exclusive responsibility of the state. Such companies should be regulated and placed under international supervision, according to the Special Rapporteur. He also suggests the refining of legal instruments that allow the effective legal prosecution of both the mercenary and the company that hires and employs him. The various United Nations bodies and regional organizations that combat the presence and use of mercenaries must also be strengthened, and should include the link between mercenaries and terrorism, and their participation in organized crime and illegal trafficking.

The Special Rapporteur also states in his formulation of a proposal that mercenary activity must be considered a crime in and of itself and must therefore be internationally prosecutable. According to the Special Rapporteur, states are not authorized to recruit and employ mercenaries, and must be punished if they use mercenaries to attack another state or to commit unlawful acts against persons. A factor that should also be taken into account is that existing norms of international law and customary international law referring to mercenaries and their activities condemn mercenary acts in the general sense of paid military services that often lead to the commission of war crimes and human rights violations, because such services are not subject to humanitarian norms applicable in armed conflict. The Special Rapporteur also states that the foreign nationality requirement be reviewed in order for the definition to rest primarily on the nature and purpose of the illicit act with which an agent is connected by means of monetary gain.

SEE ALSO Humanitarian Law; Sierra Leone

Natalie Wagner