The Legality of Mercenaries in International Conflicts

Mercenaries are Here to Stay: Time Now for International Law to Provide a Set of Rules

At the end of August, Blackwater’s founder Erik Prince gave a candid interview about advice he gave to the White House. The White House meeting arose after he posted a May op-ed piece in the Wall Street Journal advocating for a private mercenary force to handle the on-going conflict in Afghanistan. Prince advocates that by using private contracted soldiers alongside U.S. Special Forces, the cost of the Afghanistan campaign can be reduced to just 7% percent of the current overhead. In addition to the economic benefits, Prince further argues there is a strategic advantage to using mercenaries as well.  

But one cannot help but mention Blackwater’s Nisour Square massacre, where seventeen Iraqi civilians were killed through the course of a U.S. Embassy escort. How exactly would mercenaries be legally accountable in the same manner as members of a nation’s armed force? This question becomes more important given that the Nisour Square murder convictions were overturned at the start of August on technicalities.

The idea of private contractors and war is not new, and mercenaries played a huge role during medieval times. However, the international laws and protections afforded to traditional soldiers do not extend to mercenaries. International law specifically denies a mercenary the right to be a combatant or a prisoner of war (APl I, Art. 47). This means that all mercenaries, regardless of national contract, are unlawful combatants. In other words, mercenaries are murderers as defined by the laws of war and subject to a controlling party’s domestic laws (and technicalities of law as seen above with Blackwater). As such, mercenaries have no legal standing to operate in international law. But we know that they do, so how do you know if a combatant you have is a mercenary?

According to the Geneva Conventions, all captured soldiers must be treated as lawful combatants with POW status until facing a competent tribunal deciding otherwise (GC III Art. 5). Depending on the holding nation, the United Nations Mercenary Convention might apply, defining a mercenary slightly different than AP I, Art. 47. Further complicating the matter is the legal attachment of private military companies and civilian logistical support staff in military units (GC III, Art. 4.1.4). Private individuals legally can support war operations, and be protected by the rules of war. The distinction would need to be determined by a competent tribunal. But all this probably does not matter given the nature of today’s wars.

All over the world mercenaries are currently participating in armed conflict such as in Syria and Yemen. Their lack of accountability seems to be their main selling point. Mercenaries can be whisked in and out (much like Blackwater did) in the event of mistakes and abuses. There is no responsibility on the country employing mercenaries to enforce discipline as they would with the traditional military force. And most countries employ a “self-monitoring” system. Any accountability comes only in the face of publicity, and only under the domestic laws. While the international community has recourse for addressing mistakes and abuses by armed forces, none exist (absent physically capturing the individuals) for mercenaries. And, given the amorphous nature of today’s armed conflict, they have major appeal as an option against insurgent groups like ISIS.

All these factors speak towards the need internationally to readdress the status and expectation of mercenary forces. Today, NGOs (who frequently act and address problems traditionally overseen by nations) are employing private military companies to provide security and support. These relationships have further cemented mercenaries as a permanent feature in the international community. Addressing the laws and expectations surrounding mercenary forces is critical to ensure accountability. Further, as more and more nations use mercenary forces as a screen to prevent the outbreak of international armed conflicts, countries will continue to abandon their responsibilities under the law of war. This undermines the fundamental purpose of humanitarian law. Until mercenaries are addressed more comprehensively under international law, the laws of war can be avoided. Mercenaries are here to stay—the international community must get serious about making sure they play by a set of rules.

Author: Matthew Goepfrich