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The Legal Status Of Mercenaries Under International Humanitarian Law

"Never think that war, no matter how necessary, nor how justified, is not a crime."- Ernest Hemingway

Mercenaries are people who are employed by a state or a private enterprise to conduct military services in exchange for payment. They are sometimes known as "private military contractors" or "security contractors." Mercenaries have been used across history, but the word has gained popularity recently as a result of the growing involvement of private military contractors in violent conflicts throughout the globe. Researching the legal standing of mercenaries is crucial since their usage raises concerns regarding their compliance with international humanitarian law.

Throughout history, mercenaries have been used for a variety of purposes, such as to promote uprisings or revolutions or to augment sovereign armed forces. Due to the growing privatisation of security and military services, the employment of mercenaries has, nonetheless, been increasingly pervasive in recent years, as is evidenced by Russia's use of the Wagner group mercenaries in the Ukrainian war. States have used private military contractors to carry out a variety of duties, including securing diplomatic missions and military sites, educating domestic armed forces, and leading actual combat operations.

Many legal issues are brought up by the employment of mercenaries, including whether they fall within the purview of international humanitarian law and, if so, under what regulations. Whether mercenaries are classified as combatants or civilians under international humanitarian law is one of the most important questions. This difference is crucial because combatants are entitled to certain legal protections and privileges that civilians do not enjoy under the law.

The employment of mercenaries also raises questions regarding responsibility and accountability for transgressions of international humanitarian law. Governments are in charge of making sure that their armed forces abide by international humanitarian law, but because private military contractors don't follow the conventional military chain of command, it may be difficult to hold them accountable for any transgressions.

According to me, It is crucial to investigate mercenaries' legal standing under international humanitarian law given the rise in the employment of private military contractors in armed conflicts across the globe. The findings of this research will assist in elucidating the legal responsibilities of governments and the status of for-profit organisations that use mercenaries. An in depth suggestion will also be provided to curb the rise of this unethical phenomenon.

Status of combatants under the International Humanitarian Law
Since it establishes their legal rights and responsibilities during armed conflicts, understanding the status of combatants within International Humanitarian Law is crucial.

Combatants may be categorised as either privileged or unprivileged under the International Humanitarian Law, often known as the Rules of Armed Conflict. In this context, being privileged entails maintaining one's position as a prisoner of war and receiving no consequences for actions taken before arrest.

As a result, combatants who have broken specific IHL rules may lose their position as privileged combatants either ipso iure (only by doing the act) or by judgement of a court or tribunal with appropriate jurisdiction. It is crucial to note that the applicable treaties do not explicitly distinguish between privileged and unprivileged individuals; rather, international law only utilises the word "combatant" to refer to what is referred to as a "privileged combatant."

According to Article 5 of the Third Geneva Convention (GC III), if there is any dispute as to whether a person qualifies for "combatant" status, they must be kept as a POW until the matter has been decided upon by a "competent tribunal."

Privileged combatants
Upon capture, the combatants in the following groups are eligible for prisoner-of-war status:
  • Members of a Party to the Conflict's military forces, as well as militia or volunteer corps that are a component of those forces.
     
  • Members of other militias and volunteer corps, including those from organised resistance movements, who are affiliated with a party to the conflict and who are operating in or outside of their own territory, even if it is occupied, provided they meet the following requirements: being led by a person who is responsible for his subordinates; having a fixed distinctive sign recognisable at a distance; carrying arms openly; and conducting themselves in a manner that is conducive to the success of the organisation.
     
  • Regular military personnel who declare their loyalty to a power or entity that the Detaining Power does not recognise.
     
  • Residents of an unoccupied territory who, upon the approach of the enemy, take up arms on their own initiative to fend off the invaders without having had time to organise themselves into regular armed units, provided they carry arms openly and adhere to the laws and customs of war; frequently referred to as lev´┐Żes in reference to the widespread conscription that took place during the French Revolution.

Combatants who do not wear a distinguishing mark are still considered prisoners of war in nations that have ratified "Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts" (Protocol I) if they carry arms openly during military engagements and while the enemy is visible when they are deploying to launch an attack against them.

Disadvantaged combatants
Several combatants fall beyond the definition of privileged combatants, including:
  • Combatants who would ordinarily be privileged but have violated the war's regulations and conventions (e.g., feigning surrender or injury or killing enemy combatants who have surrendered). In such situation, the loss of rights only happens after a conviction, or when a competent court has found the action was illegal following a fair trial.
     
  • According to Article 44 (3) of Additional Protocol I, combatants who are captured without meeting the minimal requirements for standing out from the general populace, such as openly carrying weapons during military engagements and the deployment immediately prior to them, forfeit their right to be treated as prisoners of war without being subjected to a trial.
     
  • Spies are those who gather information covertly in the area of the opposing belligerent. As long as they are wearing their uniform, members of the military performing special operations or reconnaissance behind enemy lines are not regarded as spies.
     
  • Mercenaries, child soldiers, and non-classified citizens who engage in direct combat but do not fit into one of the categories specified in the preceding paragraph.
The Fourth Geneva Convention (GCIV), which protects civilians, is often used to provide protection for unprivileged combatants who do not meet the requirements of the Third Geneva Convention until they have undergone a "fair and regular trial." They may be punished under the civil laws of the detaining authority if proven guilty in a normal trial.

International Laws With Regard To Mercenaries

The employment of mercenaries in armed conflict and certain peaceful circumstances is forbidden under international law. Because of its unique characteristics, the law of armed conflict (international humanitarian law) does not examine the legitimacy of mercenary operations or define the accountability of individuals who engage in mercenarism. Instead, it outlines a mercenary's position and the consequences of being captured.

The 1977 amendment protocol towards the Geneva Conventions is called as Protocol Additional GC 1977 (APGC77). While not being approved by all nations, including the United States, Article 47 of the protocol offers the most commonly recognised international definition of a mercenary.

According to Protocol I of the Additional Protocol to the Geneva Conventions of 12 August 1949 for the Protection of Victims of International Armed Conflicts, which was adopted on 8 June 1977:
  • Art 47. Mercenaries
  • A mercenary shall not have the right to be a combatant or a prisoner of war.

A mercenary is any person who:
  1. Is especially recruited locally or abroad in order to fight in an armed conflict;
  2. Does, in fact, take a direct part in the hostilities;
  3. 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;
  4. Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
  5. Is not a member of the armed forces of a Party to the conflict; and
  6. 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.
All the criteria (a-f) must be met, according to the Geneva Convention, for a combatant to be described as a mercenary.

Conforming to the GC III, a soldier who has been detained must be considered as a legitimate combatant and given prisoner-of-war status until they may appear before an appropriate tribunal (GC III Art 5):

Article 5 - Beginning and end of application
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 , such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The tribunal may determine that the soldier is a mercenary based on standards in APGC77 or any comparable local law. The mercenary soldier therefore becomes an illegal combatant but is still safeguarded by GC IV Art 5 and must be "treated with compassion and, in case of trial, must not be stripped of the entitlement to a fair and regular trial:

Article 5 - Derogations
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The only situation in which GC IV Art 5 may not apply is if the prisoner is a citizen of the institution housing him, in which case he would not qualify as a mercenary soldier under APGC77 Art 47.d, as mentioned above.

If a captured soldier is identified as a mercenary during a normal trial, he may expect to be treated like an ordinary criminal and may even be put to death. Mercenary troops cannot anticipate being sent home after the conflict since they could not be considered prisoners of war.

Civilian contractors' legal standing is based on the nature of their employment and how closely related their nationalities are to that of the combatants. They aren't really mercenaries if they haven't "in reality, taken a direct part in the hostilities" (APGC77 Art. 47.b), but rather citizens who are performing non-combat support functions and are therefore protected by the Third Geneva Convention (GCIII 4.1.4):

Article 4 - Prisoners of war
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
  1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
  2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
    1. that of being commanded by a person responsible for his subordinates;
    2. that of having a fixed distinctive sign recognizable at a distance;
    3. that of carrying arms openly;
    4. that of conducting their operations in accordance with the laws and customs of war.
  3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
  4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
  5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
  6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:
  1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
     
  2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8 , 10 , 15 , 30, fifth paragraph [ Link ] , 58 -67, 92 , 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
To be a mercenary is not a particular offence within international humanitarian law. The International Criminal Court's Statute is no different. Mercenaries who are detained do not automatically have the status of prisoners of war, but the arresting authority is free to chose to treat them as such. According to the basic protections of humanitarian law, as outlined in Article 75 of API, they must always be treated with compassion:

Article 75 - Fundamental guarantees
  1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
     
  2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
    1. violence to the life, health, or physical or mental well-being of persons, in particular:
      1. murder;
      2. torture of all kinds, whether physical or mental;
      3. corporal punishment; and
      4. mutilation;
    2. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
    3. the taking of hostages;
    4. collective punishments; and
    5. threats to commit any of the foregoing acts.
       
  3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
     
  4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
    1. the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
    2. no one shall be convicted of an offence except on the basis of individual penal responsibility;
    3. no one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
    4. anyone charged with an offence is presumed innocent until proved guilty according to law;
    5. anyone charged with an offence shall have the right to be tried in his presence;
    6. no one shall be compelled to testify against himself or to confess guilt;
    7. anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    8. no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
    9. anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
    10. a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.
       
  5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.
     
  6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.
     
  7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:
    1. persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
    2. any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.
       
  8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.
Only if the arresting power's national legislation has laws recognising mercenarism as a separate crime may someone be tried for being a mercenary.

Conclusion And Suggestions
The employment of mercenaries, or those paid to take part in armed conflicts, is usually regarded as immoral and prohibited under international law.

The fact that mercenaries are driven more by financial gain than by any feeling of duty, loyalty, or national responsibility is one of the fundamental reasons why using them is immoral. Due to the fact that they lack the same degree of responsibility, training, or discipline as regular military troops, mercenaries may be more liable to engage in wrongdoings such war crimes or human rights violations.

The utilization of mercenaries also violates the rights to sovereignty and self-determination since it permits non-state actors to take part in hostilities without being held responsible by the governments or populations they proclaim to represent. Finally, the use of mercenaries may prolong and exacerbate conflicts, as they may have little or no interest in achieving a peaceful resolution to the conflict, and may even have financial incentives to perpetuate the conflict.

As a result, using mercenaries is often seen as immoral and against international law. They are more prone to commit violations and undermine the values of sovereignty and self-determination because of their motivated by financial gain, lack of training, lack of discipline, and lack of responsibility.

Nevertheless, in my opinion, mercenaries still ought to be tried fairly under international humanitarian law if they are charged with committing war crimes or other infractions of the rules of war, despite the fact that they are immoral and unlawful under international law.

Whether one supports or opposes the employment of mercenaries, it is a requirement of justice and the rule of law that those accused of crimes get a fair trial and are held responsible for their conduct. Mercenaries who may have engaged in war crimes or other transgressions of international humanitarian law fall under this category.

Denying mercenaries a fair trial would violate not only their fundamental human rights but also the integrity and trustworthiness of the judicial system and the fundamental foundations of justice. It is crucial to hold everyone responsible for their conduct, including mercenaries, and to guarantee that they get a fair trial in conformity with international legal norms.

My suggestion is for countries to curb the rising phenomenon of mercenaries. Since it may result in human rights abuses, instability, loss of sovereignty, proliferation of armaments, and criminal activity, countries should restrict the expansion of mercenaries. As a result, initiatives to support peace, stability, and respect for human rights in areas afflicted by armed conflict are undermined. A coordinated and all-encompassing strategy that includes border controls, legal frameworks, public awareness campaigns, and addressing the root causes of conflict is necessary to prevent the employment of mercenaries.

Many actions may be taken by nations to slow or halt the growth of mercenaries:
  • Ratify and enforce international treaties and conventions:
    States can ratify and enforce international treaties and conventions that prohibit the use of mercenaries, such as the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. By doing so, states can demonstrate their commitment to preventing the use of mercenaries and provide a legal basis for prosecuting those who violate the prohibition.
     
  • Improve domestic laws:
    States might make their domestic laws more stringent to prohibit the hiring, employment, funding, or instruction of mercenaries inside their borders. This may include making participation in mercenary activities unlawful and imposing sanctions on individuals who do so.
     
  • Increase border security:
    Governments may increase border security to stop mercenaries from entering their countries. This may include more stringent visa and immigration regulations, improved screening processes, and more information and intelligence sharing with other governments.
     
  • Public education:
    Governments may educate the general public on the hazards and perils involved with mercenary work. To emphasise the detrimental effect of mercenaries on peace and security, this might involve educational efforts, public awareness campaigns, and media outreach.
     
  • Promote peace and stability:
    In areas where there is armed conflict, states may work to foster peace and stability. Supporting peace talks, offering humanitarian assistance, and encouraging economic growth are all examples of this. States can contribute to lower the need for mercenaries by addressing the underlying causes of war.
In general, a comprehensive and coordinated strategy that includes international collaboration, legal frameworks, border restrictions, public awareness campaigns, and initiatives to address the root causes of conflict is needed to avoid the growth of mercenaries.

Bibliography
  1. https://casebook.icrc.org/glossary/unprivileged-belligerent
  2. https://en.wikipedia.org/wiki/Mercenary
  3. https://casebook.icrc.org/glossary/mercenaries
  4. https://guide-humanitarian-law.org/content/article/3/mercenaries/
  5. https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949
  6. https://www.ohchr.org/en/node/3383/international-standards

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