Private military companies and their resemblance to mercenary

Alexandru CAUIA, doctor în drept, conferenţiar universitar, ULIM
Corina ZACON, doctorandă

This article debates the judicial osmosis between Private Military Companies and the traditional concept of “Mercenary”. Throughout a chained chronicle of events, it is well — observed that these combatants have operated privately due to a specific high — financial motivation. As time passed, their judicial aspect suffered an alteration by default, hence endorsing new denominations. The main idea stands in the fact that these actors are ex — law — enforcement combatants, currently as civilians who are recruited as self — contractors. A few remarks pointed out in this paper consist from the State’s null — responsibility and the provision of international immunity to the military operations. Mainly, this document cares to explain the resemblance between the assignments of Private Military Companies and the operations of Mercenaries. Along with a variety of factual examples, the main clue stands in the fact that all legal denotations of them as an entity are completely irrelevant as long as their activity is perfectly identical. Key words: private; mercenary; null-responsibility; international; protection; military

Prezentul articol pune în discuţie similaritatea juridică dintre Companiile Militare Private şi tradiţionalul concept de “Mercenariat”. Prin prisma relatărilor istorice, este clar elucidat factorul pecuniar care de fapt era şi motivaţia acestor combatanţi ilegali în cadrul desfăşurării activităţilor mercenare. O dată cu trecerea timpului, interpretarea lor juridică ca entitate a suferit schimbări la nivel de titlu, respectiv adoptând noi calificative. Un argument esenţial pe care se bazează prezenta cercetare, este că angajaţii respectivi sunt caracterizaţi prin experienţă militară anterioară, actualmente recrutaţi în calitate de civili şi prestatori de servicii în domeniul militar. În urma argumentelor expuse, o serie de neclarităţi controversate, referitor la elementul privat în cadrul companiilor militare rămân a fi elucidate. Fenomenul “responsabilitate — zero” a statului precum şi a beneficiarii protecţiei internaţionale pe parcursul operaţiunilor militare sunt doar câteva puncte de reper ale acestui document. Alături de exemplele relatate în articol, cea mai importantă remarcă e la adresa calificărilor juridice obţinute de-a lungul anilor de către aceşti combatanţi, care prin urmare ramîn a fi percepute ca fiind irelevante atât timp cât rezultatele activităţii de mercenariat sau, mai — nou a “Companiilor Militare Private” ramând a fi identice. Cuvinte cheie: militare; mercenariat; similaritatea; private; internaţional; protecţie; responsabilitate

Introduction

The general concept of Military has been established through historical patterns since early ages, embracing different judicial forms throughout the time. The need of armed forces has been a demand for all nations dating back at their establishment in time. The scope however, differed according to the colonial expansion later in the history. The use of military enforcement prevailed as an apprehension of self-defence as an entity necessity. Nevertheless, as time passed, army refined their labour through the means of criminalization defined by man — slaughtering as private assignments. As noticed in the military precedent, bloodshed enforcement was defined by non — state actors which later were contracted by governmental officials in order to provide their extreme force to particular projects of a State importance. Thus, according to the judicial research on this topic, mercenaries were providing their services all the way till the end of the 20th century, when International Tribunal reviewed their active duty as a breach of legal system, hence unacceptable and forbidden by Domestic and Foreign Regulations.1

As the subsequent years of 2000 speak for themselves, it is well noticed that the use of illicit armed forces it is still a phenomenon to be witnessed to, as well as an installation of the so called “Private Military”. The latter one is the result of the anti-mercenary rule endorsed by the International Arena with the main scope of prohibiting unlawful bloodbaths through exclusive arrangements. As researching backwards in the bygone — times in respect to military’s groundwork, it is apprehended that the Private Military (PM) has amplified its activeness by carrying out most of assignments were by custom, a mercenary would require to be contracted.2

Historical Approach towards the traditional “Mercenary” Concept

Generally, the international approach to the entire concept of Private Military Companies drops on the idea of State Affairs. As chronicles established, each individual nation is a part of mutual propulsion of global collaboration while discussing intergovernmental transactions and interests. In other words, the pace of a particular jurisdictional territory authenticates its armed interference in any potential disputes on a global arena. As stated by Machiavelli himself, Roman and Spartan battalions were formed out of inhabitants willing to use ammunition instructed by the means of the real-life casualties. Usually, those groups of “soldiers” formed a smaller equipped opposition without being frightened to use force and guns for the greater number of civilians who were not consenting with their activity or concepts. However, as the intensity of extreme force emerged as an issue rigorously prohibited, violence ended up to be concentrated among civilians who had no legal or political adherence. These distinct non-combatants remained loyal to their employer awaiting to be financially reimbursed. Since money was always an important factor, once the funds were limited, mercenaries usually shifted to the opposition, whoever was willing to propose the highest offer.

An adequate example of the long-established mercenary activity as ancestors to Private Military, dated early as the year 1000, is the William the Conqueror’s army, where, majority of soldiers were trained killers. Following, in the first mid of 1800s, most of India was colonized by legionnaires owned by East India Military Company, where a little over 100 thousands of soldiers were trained assassins.3 Well before the 1900s, lawful regulations were established in the international armed conflicts in respect to prohibition of mercenary. It is well observed that among time, military has performed a certain pace of privatization well noticeable throughout the entire 19th century as well as during the further development in the late 2000. These days, PMs provide their service in most common 3 instances: 1. In such areas where the armed interference is usually low to none, where the military tasks don’t have battle stations set up, or when those territories are highly unstable presenting a tremendous lack of security (post war zones); 2. In those instances where the international body refuses to deploy troops; 3. In high — risk zones of the 3rd World Countries where State isn’t present and the cross-border extractive corporations do not operate.4 Under the turnover of the international criminal law any person becomes a liability should he/she enterprise violent acts of any nature. Nowadays, mercenary is qualified as an international crime just alike to the terrorism.5 As oppose to the domestic/foreign legal perception of mercenaries as non-state actors, as awkward as it might sound, there is no definition by default in respect to private military companies, nor any reference at all. Nevertheless, the evolution of the judicial approach upon private military companies became a tremendous factor within armed conflict of all times. As it is argued, the existence of specific legal bodies and organizations is the result of maintaining alive the variety of ambiguous international law enforcement performers6. Therefore, the legitimacy of the military society among world-wide armed conflicts is perceived as a current issue, disputed on an international arena.

International Interpretation of Mercenaries and PMC

As argued in this paper, the entire battle with mercenary related activity has its origins in the late 21st century which provides codified legal standards regarding neutrality embodied in 1908 Hague Convention, mainly discussing over the idea of rights and assignments of independent forces as well as civilians in the war arena. Hence why, taking a glance at the international interpretation of mercenary, it is well deductable the theory of violence and the “no — intervention” rule. The neutrality principle it is applicable both for domestic as well as for foreign armed disputes. Hence why, in 1928 was decided to establish a relevant number of obligations while enforcing the “Convention regarding the duties and rights of States in the Event of Civil Strife”. Nonetheless, once UN was created in the first mid of 1900s, the International attitude towards abolishing mercenary behavior and recognizing people’s right to self — determination, increased dramatically. As a matter of fact, the prime purpose of the United Nation Charter is as follows: I quote “To develop friendly relations among nations based on respect for the principle of equal rights and self — determination of people, and to take appropriate measures to strengthen universal peace”7. This particular principle was reinforced once more, once signing the United Nations Declaration regarding granting independence to Colonial Countries and People8, where was argued the following: I quote: “All peoples have the right to self — determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”(…), along with I quote: “All armed actions or repressive measures of all kinds directed against dependent people shall cease in order to enable them to exercise peacefully and freely their right to complete independence and the integrity of their national territory shall be respected”. Moreover, it is worth mentioning that along with the above, it is clearly expressed in the same content that any effort in respect to national unity and regional integrity of a particular State shall be qualified as contradictory to the scope and principles set out in the United Nations Charter.

As well — known and expressly set out in the UN Official Documentations, the perception of private military and cumulative security argued in the United Nation Charter it is mainly grounded on the fact that each Member State as an independent regional jurisdiction has the entire supervision over the territory’s law enforcements as well as it’s own responsibility for the use of armed forces both internally and on the outskirts of that particular State, having the sole purpose for self — defense of the country.9

Later in the years, United Nations General Assembly reinstated the above principle during the enforcement of the Declaration of International Law concerning Friendly Relations and Co-operation within Stated in sole accordance with the Charter of the UN. As stipulated in the resolution: I quote: “Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries for incursion into the territory of another State”.10 Following, as stated in the Definition of Aggression from the late 1900s, mercenaries are viewed as act of violence and aggression should they be sent or acting in behalf of a particular country. Therefore, it is obvious that as time passed by, the anti — mercenary regulation started to be forbidden by law and brought to the society’s awareness each day more and more. Hence why, providing all legal means for contracting private combatants which acknowledged increased demand throughout the entire globe.

Having mentioned all the above, there have been various situations in time qualified as “Aggression Activity”. A few foreign legal researchers consider that the American military attempts from Iraq, in the early 2000s, meet the criteria of the default definition of an “act of aggression”. The War from 2003 is seen as a development of a bloodshed and a breach of international legal system. As the history relates, under those particular circumstances, while USA trespassed Iraqi territory, which was established as an independent State at that time, with the strategic scope to overrun all natural resources as well as taking over the land, disregarded the The Hague as well as The Geneva Conventions, hence assessed as unlawful acts of war with main participation of civilians contracted as soldiers.

As the mercenary was established as acts of violence forbidden by law, UN prefunded its aims through the Peace Keeping Operations. One of the most outstanding operation was in Congo at the beginning of 1960s and subsequently the ones performed in Africa in relation to armed hazards from those territories freshly declared as independent, while previously known as Portuguese colonies. During that time of liberation, UN declared the following: I quote: “the practice of using mercenaries against national liberation movement and sovereign States constitutes a criminal act and that the mercenaries themselves are criminals, and calls upon the Governments of all countries to enact legislation declaring the recruitment, financing and training of mercenaries in their territories, and the transit of mercenaries through their territories, to be punishable offences, and prohibiting their nationals from serving as mercenaries”.11

A decade later were affirmed the ground standards of the legal status of combatants fighting versus dominant and foreign suppression and intolerant reign from which: I quote: “use of mercenaries by colonial and racist against the national liberation movements struggling for their freedom and independence from the yoke of colonialism and alien domination is considered to be a criminal act and the mercenaries should accordingly be punished as criminals”12.

Following, I would like to enlighten a few ideas supported by the United Nations Commission on HR13 regarding the replacement (new Working Group) of the previous U.N. Special Reporter on the Use of Mercenaries, stating that they are: I quote: “convinced that notwithstanding the way in which mercenaries or mercenary — related activity are used or the form they take to acquire some semblance of legitimacy, they are a threat to peace, security and the self — determination of people and an obstacle to the enjoyment of human rights by people”. Hence, it was a request from the side of United Nations Higher Instance to observe the fact that such actions of high — violence of non — state actors are still present in many geographical zones of the globe. The worse thing about it, is that they are endorsing new concepts such as the personnel of Private Military Companies or even all Self — employed Security Guards; alter their manner of activity and adopting new means. Following this settlement, I quote: “it requests its members to pay particular attention to the impact of the activities of private companies offering military assistance, consultancy and security services on the international market in the enjoyment of human rights by everyone and every people (…)”.

1. Specifically, UN asked the new established W.G. (Working Group) to focus their attention particularly on:Redact and pass on specific advisory statements regarding new guidelines, legal boundaries and working — principles that would support the protection of HR, particularly people’s right to self — determination, should be opposed to continuous hazards established by mercenaries or by their intimidating activity,

2. Keep an eye on these contracted assassins as well as on all activity in respect to mercenary manifested in various forms all across the entire world;

3. Identify all undergoing violent — affairs, their form of manifestation and current flow as detrimental factor in protecting HR, specially the right to self — determination;

4. Investigate and research the consequences of the projects under the direct coordination of PMs which provide such services as military support, advisory assistance or international security on the international arena. Especially in such instances when it infringes people’s right to self — determination, as well as affecting the support of HR while developing their military activity.

As a result, this WG deliberately must look for ideas and collaboration from State Officials, transnational organizations and NGOs. They had to continue the labor started by the UN Special Reporter on the legal framework for foreseeing, prevention and banning all manifestations related to mercenary. With this in mind, I would also like to make a note in respect to the International Convention opposed to enlistment, operation, funding and instruction of future private combatants, which was endorsed in 1989 and enforced in late 2001, counting more than a decade of negotiation on this particular matter.14

Geneva Convention Interpretation over Mercenaries and PM status

One of the main periods of the history, when the definition of mercenaries was established, prevailed during African decolonization, which meant that European Sovereigns lost tremendous territories in the African continent. In this manner, the use of contracted battlers became frequently used by European Authorities due to their colonial losses. Following these events, International Commonwealth scrutinized a rocketed increase of request of Private Military Companies as well as other military — experienced non — state actors. These are exactly the factual circumstances under which the International Legal Standards initiated an investigation over the mercenary concept along with all activity related to it.

Due to the desperate need of such regulations, in the early June of the the ‘77s, 1949 Geneva Convention, enlarged its boundaries through the addition of Protocol nr. I in respect to the protection of casualties among international armed disputes. As article 47 of the Convention at hand states: I quote “A mercenary shall not have the right to be a combatant or a prisoner of or war”, the second paragraph of the same article determines the core criteria of a mercenary by default. It is also clearly mentioned that the above mentioned contractors must by all means be an active part of the hostilities, as well he has to be personally influenced by financial outcome. I quote: “Mercenary 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 rank and functions in the armed forces of that Party”. I must enlighten the fact that this particular Protocol, makes an effort to delimitate other motivation — criteria from mercenaries’ ones. Financial gain is a main factor in establishing the status of a contracted assassins while all altered motivations such as religious belief or psychological attributions delimitates those people falls in a separate category of combatants, other than mercenaries.

Another point to be made is with regards to the description of that particular reimbursement. In other words, a mercenary must achieve a higher amount of money as a result of his alignment to the conflict as oppose to the remuneration given to a regular soldier having the same status or job contract as the previous one. So here actually the osmosis argued by this paper, meaning that under all the above description perfectly embodies any Private Military Contractor or even any International Security Companies.

Under the same article of the Geneva Convention it is also specified that: I quote “the individual is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict”. Having said all these, it is obvious that should such an individual wish to come clean regarding his assignments and still keeping it within legal standards, it would mean that any contracted combatant would be able to wave off their mercenary position once they would obtain a lawful military status embodied by the armed forces, such as PMCs. Easy as that and noticeable in the Iraqi territory where all the US Soldiers develop their task in conflict zones with full immunity and null legal responsibility. These soldiers are actually private contractors and transnational security guards who are assigned with specific assignments in highly — unsecure areas where extraction operations do not take place, hence mostly hazardous and notorious for US Official Army.

Another interpretation of the statement: I quote “sent by a State which is not a Party to the conflict on official duty as a member of its armed forces” from Protocol I of Geneva Convention, allows all private contractors (such as soldiers of any private company) to be disregarded in accordance with the “mercenary” notion. Meaning that as long as the deployed task force accomplishes the job for a 3rd Party interested State which isn’t one of the Conflicting Parties, the individuals by law will not be considered as a “deployed mercenary”.

The genuine osmosis between current Private Military and Mercenary.

As quoted by Sarah Percy: “What one generation considers being a “mercenary” the next may not”15. Hence why, perhaps the most obvious proof of the manner in which the private military and the so-called security companies took over the costumed duties of typical mercenaries, is the 2004 Equatorial Guinea military operation16. These days, the above named firms supply their services to a world-wide market, gaining legal contracts from international private companies, or governmental as well as intergovernmental projects. Usually they are constrained by legal agreements and have at their disposal latest ammunition as well as well-organized protocols. Nevertheless, in minor armed conflicts instances, in jurisdictions such as Iraq or Afghanistan, all hired personnel were undertaken on a legal basis however operating in breach of law as mercenaries without any accountability, unrestricted and in most cases with full immunity.17 Hence why, it would be fair to admit that the historical precedent is encountered nowadays within lawful armed operations. Controversially enough, these “soldiers” are internationally perceived as de jure international civilians who are operating as de facto contracted armed combatants.

From a different perspective, it is argued that the privatization of the law enforcement has actually clouded the fine lines among the civil assistance of a State and the private profit — making field. Ranking above all, it seems that international security companies followed by philanthropic pro-bono leagues have the most affected performance of their duties.18 These days, all the nonmilitary personnel try to offer their weapon-equipped assistance, thus limiting and in most of the cases implementing the so called “anti-mercenary” legal benchmark. This way, history highlighted an obscure delimitation of lawful drill and distinct armed operations.19

The evolution of private military movement has attracted through the years controversial speculations. As mentioned by the ICIJ20, the activity of the above mentioned armed characters is still to be viewed as dubitable and contentious. Moreover, the definition of private military is just a legal ratification of the mercenary raw concept21. Taking a glance in the history, where England, contracted more than 30 thousand assassin professionals to perform their duties in the U.S. Revolutionary War, followed by the employment of a similar number of troops in the service of George Washington22, hence It is undoubtable that mercenary has strong historical roots and quite impossible to abrogate it.

In the U.S.A example, the use of mercenaries dated from the US establishment back in time, followed by the appeals to the later Private Armed Forces in the development of the US Civil War.23 However, referring to other legal doctrines on this particular subject, international infringement has a statue of limitation and regardless to the grade of implementation, it is still inadequate in the modern society as well as not life-lasting. In fact, in the early 1990s, America reduced more than half a million of its armed contingent. As such, after the Cold War, the activity of such military unlawfulness was slowly abolished, and thus, emerged as a strong private forced entity which is currently at great request and highly demanded in cross-border armed conflicts.24

Closing remarks

Overall, this research attempted to elucidate the idea of the historical development and the fine affinity of the current Private Military Companies and Mercenaries as a demand of International Norms with regards to the unlawful combatant’s abolishment. As argued in the main body of the paper at hand, reality stands in the fact that armed force is subsequently becoming a private service required by the modern society each day more and more. Current International Regulations most likely are as guidance instruments towards abolishing the “mercenary” concept, and give birth to a new lawful trend which de facto meets the same fundamental criteria as the previous one. In other words, Geneva Convention, UN Charter, all Bilateral Agreements, etc., actually facilitate the use of weapons and mercenary — related activities. As they propel these actors in adopting a lawful approach for the lack of legal responsibility in low intensity armed disputes, post — conflict territories or in highly unsecured zones. Most commonly, their undertakings are currently seen as legal actions of protection rather than an offensive armed engagement. Under these circumstances, clearly the current situation of Private Military Companies propels critical problems and forwards huge queries relevant to the political sector as well as to the stability of the international legal system.

As demonstrated in this article, the activity of Private Military Companies is accompanied by insufficient legal clarity and most concerning by no liability for the actions occurred during the service of armed actors. Back in the days, the troops were slightly supervised by the governments, as oppose to nowadays instances where it is proven a high development of unlawful armed guidance by international regulations in respect to mercenary activity. Hence the idea, that in most cases the outcome of the PMC’s operations is equaled to the mercenary — related assignments, involving casualties and lack of responsibility. As established by the current facts, hiring PMCs and other military non — state actors are a well — established trend of the current century which is at high world — wide demand.

After a closely research of a few International Regulations in respect to the Independent Companies involving Armed Enforcement as well as related to the Mercenary topic, it is quite coherent that all domestic and foreign legal codes are far from perfect. Modern non-civilian disputes are becoming harder to govern over and supervise due to the State’s Responsibility on this matter. Therefore, Governments seek for professional independent contractors and issue full immunity for their military — trained staff for the projected armed operations. For instance, there are a few proceedings set up in Afghanistan and other similar countries, where all hired personnel are actually non — combatants, yet military equipped and skilled, due to their previous qualifications and work experience within law enforcement. In such examples, especially in zones with low armed movement, should they front a rebellion situation, the blur line between attack and self — defense would be almost impossible to distinguish.25 Hence, in the unlikely instance that they disobey their orders to implicate themselves in the armed movement, they would be considered as non — combatants due to the International Resolutions, hence they will be granted international protection. Nevertheless, in the scenario where they take part in the military operations, they give up to their international protection. So, as it follows, the main question that remains to be answered is: “How is it possible on God’s green earth to consider all Private Military Personnel as civilians when they are armed up to their teeth and have specific orders to engage within the conflict? “. While high — importance International Documents, such as Geneva Convention would clearly define the Mercenary Concept, unfortunately it does not provide any definition of the independent combatants and neither does any other Foreign Regulation. Hence due to current charters, their status prevails in uncertainty. In other words — they aren’t seen as soldiers and neither are considered as civilians; they are deployed to operations in post — conflict and shallow zones as well as they can be obviously characterized as contracted assassins, mercenaries or merely illegal soldiers as per the articles of Geneva Convention.26 Great gaps, vulnerable rules and the lack of judicial straightforward statues both nationally and internationally, is what characterize the current judicial statements.

Personally, we consider that regardless of noun delimitation: mercenary, solder, or merely as an armed civilian, the raw concept of private military companies and all other armed forces wasn’t and still remains unchanged. From a different angle however, it is argued that the evolution of the private element within military has the raw purpose of defense, while excluding any offense operations at all. Yet, according to the facts, it is obvious that only the simple element of interpretation suffered a diplomatic alteration, engraving armed violence as relevant and legitimate. Hence why, due to the international practice, I would mostly agree that armed conflicts suppositions and all regulatory norms along with the judicial status of Private Military, are just just a concept subject to circumstantial interpretation.