THE SAGA OF THE MERCENARY SOLDIER, Part I

My intent was to write a brief history of mercenaries throughout the ages. The story of the World's Second Oldest Profession is anything BUT brief, however, and as I researched it the project grew; large and exhaustive. Despite my inside knowledge of the trade, I was still surprised by what I learned.

I tried to organize the information I gained in chronological order, but this is difficult. It seems the role of the private soldier has had far-reaching effects from the Dawn of History into our modern civilization. When you think about it, this only makes sense; War is the punctuation of History.

What follows is Part I; an overview of what a Mercenary is, as defined by the International Law of Land Warfare, and the United State Uniformed Code of Military Justice.

- Sean Linnane, January 2010



Modern mercenary sniper, Siege of Sarajevo, circa 1993

From Webster’s: mer•ce•nary, noun, plural mer•ce•nar•ies: one that serves merely for wages; especially : a soldier hired into foreign service adjective: Function: adjective 1 : serving merely for pay or sordid advantage : venal; also : greedy, 2 : : hired for service in the army of a foreign country, 3: having or marked by an eager and often selfish desire especially for material possessions "a mercenary urge to own the latest and most expensive item in home electronics" Etymology: Middle English, 14th century, from the Latin mercenarius, irregular from merced-, merces wages






A mercenary is a professional soldier hired by a foreign army, as opposed to a soldier enlisted in the armed forces of the sovereign state of which he is a citizen. He takes part in armed conflict on many different scales, and 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" (Additional Protocol I to the Geneva Convention of August 1949). A non-conscript professional member of a regular army is not considered to be a mercenary although he gets remuneration for his service.

As a result of the assumption that a mercenary is essentially motivated by money, the term "mercenary" usually carries negative connotations, though that can be a compliment in some contexts. There is a blur in the distinction between a "mercenary" and a "foreign volunteer", when the primary motive of a soldier in a foreign army is uncertain.




French Foreign Legionnaire, Bosnia circa 1995


For instance, the French Foreign Legion and the Gurkhas are not mercenaries under the laws of war, since although they may meet many of the requirements of Article 47 of the 1949 Additional Protocol I, they are exempt under clauses 47(a)(c)(d)(e)&(f); some journalists describe them as mercenaries regardless.



Nepali Gurkha soldiers in the service of the British Army


The Geneva Conventions of 12 August 1949 provides the most widely accepted international definition of a mercenary, though not endorsed by some countries - including the United States. The Protocol Additional to the Geneva Convention and relating to the Protection of Victims of International Armed Conflicts, (Protocol I), 8 June 1977 states:

Article 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is especially 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 of 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.

According to the Geneva Convention, all of the above criteria (a - f) must be met for a combatant to be described as a mercenary.






According to Geneva, a captured soldier must be treated as a lawful combatant and, therefore, as a protected person with prisoner-of-war status until facing a competent tribunal (GC III Art 5). That tribunal, using criteria in APGC77 or some equivalent domestic law, may decide if that soldier is a mercenary. At that juncture, the mercenary soldier becomes an unlawful combatant but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered by GC IV Art 5. The only possible exception to GC IV Art 5 is when he is a national of the authority imprisoning him, in which case he would not be a mercenary soldier as defined in APGC77 Art 47.d.

If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. As mercenary soldiers may not qualify as PoWs, they cannot expect repatriation at war's end. The best known post-World-War-II example of this was June 1976 when an Angolan court sentenced three Britons and an American to death, and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on July 10, 1976.



Costas Georgiou (Greek: Κώστας Γιώργιου, alias "Colonel Callan") was a Greek Cypriot mercenary executed following the Luanda Trial for activities during the civil war phase of the Angolan War of Independence.



On 4 December 1989 the United Nations passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 1 contains the definition of a mercenary. Article 1.1 is similar to Article 47 of Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermine the territorial integrity of a State;" and "Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation..." — under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.

Critics argue that the convention and APGC77 Art. 47 were directed to mercenary activities in post-colonial Africa and do not adequately address the use of private military companies (PMCs) by sovereign states.

The situation during the Iraq War and after the United Nations Security Council sanctioned hand-over of power to the Iraqi government shows the difficulty of defining a mercenary soldier. While the United States governed Iraq, no U.S. citizen working as an armed guard could be classified as a mercenary, because he was a national of a Party to the conflict (APGC77 Art 47.d).




The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" (APGC77 Art 47.b), they are NOT mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention (GCIII 4.1.4). This includes armed civilians authorized to use deadly force in self-defense.


BET YOU DIDN'T KNOW THAT DEPARTMENT:

Contrary to widespread popular misconception, Private Military Companies and private security contractors ARE subject to the legal constraints of the
Uniformed Code of Military Justice:


New U.S. law on Private Military Companies:

According to the FY2007 Defense Budget Appropriation Bill, the Uniformed Code of Military Justice (UCMJ) has been amended to allow for prosecution of military contractors who are deployed in a "declared war or a contingency operation."

"SEC. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR. Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the UCMJ), is amended by striking 'war' and inserting 'declared war or a contingency operation'."

Previously, the code applied to "persons serving with or accompanying an armed force in the field" only during a war, which US courts interpreted to mean a war declared by Congress. No such declaration was made in the Iraq conflict. In 2006 Congress amended the code to apply to persons accompanying an armed force during a "declared war or contingency operation."




General Data on the Number of Private Security Contractor Personnel in Iraq and Afghanistan

(Source: Operational Contract Support "State of the Union" May 2009; Office of the Deputy Under-Secretary of Defense, Logistics & Materiel Readiness)

o Private security contractors perform personal security, convoy security, and static security missions. Not all private security contractor personnel are armed.

o USCENTCOM reports, as of 10 May 2009 , the following distribution of private security contractors in Iraq and Afghanistan:

o There was a 23% increase (from 8,701 to 10,743) of armed DoD PSCs in Iraq compared to the 1st quarter FY 2009 census. This increase can be attributed to our improved ability to account for subcontractors who are providing security services.

o There was a 29% increase (from 3,184 to 4,111) of armed DoD PSCs in Afghanistan compared to the 1st quarter FY 2009 census. The increase correlates to the build up of forces in that AOR.

General Conditions Regarding Contracts and Contractor Personnel

The Combatant Commander has provided specific guidance on arming contractor personnel and private security contractors in the USCENTCOM AOR through a series of Fragmentary Orders (FRAGOs) and other authoritative guidance, including the following:

Private security contractor personnel are not authorized to participate in offensive operations and must comply with specific USCENTCOM Rules for the Use of Force (RUF). Under these RUF, private security contractor personnel are authorized to use deadly force only when necessary in: self-defense, defense of facilities / persons as specified in their contract; prevention of life-threatening acts directed against civilians; or defense of Coalition-approved property specified within their contract. The Multi-National Force - Iraq (MNF-I) issues to approved private security contractor personnel a weapons card authorizing them to carry a weapon. This weapons card also contains the guidance for the RUF and the contractor personnel’s signature acknowledging the difference between the RUF and the Rules of Engagement.




Private security contractor personnel in Iraq must be properly licensed to carry arms in accordance with host nation law and must receive USCENTCOM / Coalition Forces’ approval of their operations. Coalition Provisional Authority Order 17 (CPA 17), Status of the Coalition, Foreign Liaison Missions, Their Personnel and Contractors (June 23, 2003), is still in effect. It addresses Private Security Contractors operating in Iraq and requires the contractor’s understanding of and compliance with all applicable:

o U.S., host nation, and third country national laws;

o Treaties and international agreements;

o U.S. regulations, directives, instructions, policies; and

Orders, Standing Operating Procedures, and policies issued by the Combatant and / or Operational Commanders:

o MNF-I forces are authorized to stop, search, seize weapons, and detain civilians armed under MNF –I Fragmentary Order (FRAGO) 07-428 (Armed Contractors / DoD Civilians and PSCs), if MNF-I forces observe a RUF violation, exhibitions of criminal behavior, or conduct that threatens security.

o DoD contractor personnel armed by DoD authority must report any use of force, including the firing of a weapon. This requirement and the required information to be submitted are identified within the terms of the contract and MNF–I FRAGO, 07-428. MNF-I forces must report any use of force by a civilian armed under the requirements of this FRAGO to their chain of command.






To Be Continued . . . . . . S.L.


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