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Treatment of Mercenaries Captured on the Battlefield

March 30, 2012


Howdy, all. While I work on a few posts to put up here, I decided I’d post another paper I had to do for class – this one is *much* smaller than the previous paper I posted. Basically, I had to do an issue brief and a presentation on the subject of how the U.S. should treat mercenaries captured on the battlefield – are they POWs? Unprivileged combatants? How should PMCs and PSCs be considered? Anyways, it’s rather short, but I hope some of you may find it interesting.

I made this into a video, once – and interestingly enough, someone called me a nazi and a fascist because of it. Go figure.

Background:

 

  • States have used mercenaries to complement (or replace) their regular forces for centuries, only falling out of use in the mid-nineteenth century[i]. The post-war decolonization period in Africa saw a revival in the use of mercenaries – primarily to “[hinder] the self-determination efforts of emerging African states”[ii]; however, these mercenaries “were perceived as illegitimate actors violating norms of international relations.”[iii]
  • The widespread disdain for the use of mercenaries led the international community to include a definition of mercenaries in Additional Protocol I[iv] to the Geneva Convention and to attempt to ban their use in the UN Mercenary Convention.[v]
  • Mercenaries are ineligible for Prisoner of War status under the Third Geneva Convention as well as the Additional Protocol I; if captured, they would be classified as unlawful or unprivileged combatants, and “may be prosecuted under the domestic law of the detaining state for such action” and “may be interned for as long as they pose a serious security threat.”[vi]
  • There has been some effort by Private Military Companies (PMCs) and Private Security Companies (PSCs) to establish a global, industry-wide standard of conduct, behavior, and governance via the International Code of Conduct for Private Security Service Providers (ICoC)[vii].
  • Most recently, United Nations Security Council Resolutions 1970 and 1973 against Gaddafi’s Libyan regime specifically condemn and ban his use of mercenaries.  However, the resolutions make no reference to the fact his government was a signatory to both the Additional Protocol I and the UN Mercenary Convention as well as the OAU (Organization of African Unity) Mercenary Convention, signaling that “may indicate that these instruments have been rendered impotent.”[viii]

Main issues:

  • The definition of “mercenary” under international law is so narrow that it is difficult – at best – to define who would actually qualify as a mercenary[ix].  Domestic law is also similarly unhelpful and lacks a coherent definition of what a mercenary is.
  • The legal status of PMCs and PSCs is unclear.  While they may be de facto mercenaries, they are most probably not de jure mercenaries under international law.
  • Current widespread use of both PMCs and PSCs by the United States in its ongoing efforts in both Iraq and Afghanistan would make any definition of “mercenary” that includes PMCs and PSCs problematic for U.S. interests.
  • Treating captured employees of PMCs and PSCs as unlawful combatants would place employees of PMCs and PSCs working for the United States at risk of similar treatment.
  • Current and future conflicts are likely to see increasing use of mercenary forces in theatres of war.  The United States must adopt a standardized policy that reflects both the reality of PMCs/PSCs being a necessary component of modern conflict as well as the necessity of dealing with mercenaries who do not belong to any such organization.

Recommendations:

 

  • The United States should develop a common definition of mercenary to be used by all organs of government.
  • The United States should not confer Prisoner of War status upon any mercenary captured on the battlefield, regardless of whether or not they belong to a PMC/PSC.
  • The United States should avail itself of its right to interrogate any captured mercenary for military or intelligence purposes.
  • The United States should not prosecute employees of PMCs/PSCs who abide by the law of war and sign on to industry-wide agreements such as the ICoC solely for engaging in combat with American or allied forces. This would assist in avoiding any potential reciprocal action being taken against PMCs/PSCs working for the United States or its allies as well as potentially encourage more PMCs/PSCs to abide by the laws of war and abide by industry codes of conduct.
  • Employees of PMCs/PSCs who violate the laws of war or who otherwise commit a crime should be held fully accountable under the laws of the United States or of the territorial state where the crime was committed, as appropriate.
  • Foreign fighters/mercenaries who do not belong to a PMC/PSC should be tried for any crimes they commit under the laws of the United States or of the territorial state where the crime was committed, as appropriate.
  • Any captured mercenary for whom trial is deemed inappropriate should be securely held until they can be safely repatriated to their country of origin without negatively affecting the security interests of the United States and its allies.


[i] (Percy, 2007, p. 372)

[ii] (Scheimer, 2009, p. 614)

[iii] (Percy, 2007, p. 373)

[iv] (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977)

[v] The United States of America is not a signatory to either the Additional Protocol I or the UN Mercenary Convention.

[vi] (International Committee of the Red Cross, 2011)

[vii]A total of 211 companies from 45 different countries have signed on to the agreement as of October 1st (ICoC-PSP, 2010).

[viii] (Liu, 2011, pp. 300-302)

[ix] The definition under Article 47 of Additional Protocol I consists of six component parts, each of which must be true for a person to be considered a mercenary and thus an unlawful combatant.  An oft-quoted statement by Geoffrey Best explains this as: “any mercenary who cannot exclude himself from this definition deserves to be shot-and his lawyer with him!” (Best, 1980, p. 328)

 

Bibliography

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). (1977, June 8). Retrieved from http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079

Best, G. (1980). Humanity in Warfare: The Modern History of the International Law of Armed Conflict. London: Weidenfeld and Nicolson.

ICoC-PSP. (2010, November 9). International Code of Conduct for Private Security Service Providers. Retrieved September 19, 2011, from http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf

International Committee of the Red Cross. (2011, January 1). The relevance of IHL in the context of terrorism. Retrieved September 24, 2011, from ICRC Resource Centre: http://www.icrc.org/eng/resources/documents/misc/terrorism-ihl-210705.htm

Liu, H.-Y. (2011). Mercenaries in Libya: Ramifications of the Treatment of ‘Armed Mercenary Personnel’ under the Arms Embargo for Private Military Company Contractors. Journal of Conflict & Security Law, 293-319.

Percy, S. V. (2007, Spring). Mercenaries: Strong Norm, Weak Law. International Organization, 61(2), 367-397.

Scheimer, M. (2009). Separating Private Military Companies from Illegal Mercenaries in International Law: Proposing an International Convention for Legitimate Military and Security Support that Reflects Customary International Law. American University International Law Review, 24(3), 609-646.

 

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