"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
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.
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."
Upon capture, the combatants in the following groups are eligible for
- 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�es in
reference to the widespread conscription that took place during the French
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.
Several combatants fall beyond the definition of privileged combatants,
- 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
A mercenary is any person who:
- Art 47. Mercenaries
- A mercenary shall not have the right to be a combatant or a prisoner of war.
- Is especially recruited locally or abroad in order to fight in an armed
- Does, in fact, take a direct part in the hostilities;
- 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
- Is neither a national of a Party to the conflict nor a resident of
territory controlled by a Party to the conflict;
- Is not a member of the armed forces of a Party to the conflict; and
- 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
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
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
B. The following shall likewise be treated as prisoners of war under the present
- 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.
- 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:
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and
customs of war.
- Members of regular armed forces who profess allegiance to a government
or an authority not recognized by the Detaining Power.
- 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
- 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
- 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.
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.
- 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
- 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.
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
- 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.
- The following acts are and shall remain prohibited at any time and in
any place whatsoever, whether committed by civilian or by military agents:
- violence to the life, health, or physical or mental well-being of persons,
- torture of all kinds, whether physical or mental;
- corporal punishment; and
- outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
- the taking of hostages;
- collective punishments; and
- threats to commit any of the foregoing acts.
- 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.
- 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:
- 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;
- no one shall be convicted of an offence except on the basis of
individual penal responsibility;
- 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;
- anyone charged with an offence is presumed innocent until proved guilty
according to law;
- anyone charged with an offence shall have the right to be tried in his
- no one shall be compelled to testify against himself or to confess
- 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;
- 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;
- anyone prosecuted for an offence shall have the right to have the judgement
pronounced publicly; and
- 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.
- 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.
- 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.
- 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:
- 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
- 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.
- 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
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
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
- 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
- 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.
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