Mercenary

A mercenary is a soldier who fights, or engages in warfare primarily for private gain, usually with little regard for ideological, national or political considerations. However, when the term is used to refer to a soldier in a regular national army, it is usually considered an insult, epithet or pejorative.

Mercenaries and the laws of war

See also laws of war.

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In the Protocol Additional to the Geneva Conventions (GC) of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 it is stated:

Related Topics:
12 August - 1949 - Protocol I - 8 June - 1977

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Art 47. Mercenaries

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:A mercenary is any person who:

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::(a)  is specially recruited locally or abroad in order to fight in an armed conflict;

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::(b)  does, in fact, take a direct part in the hostilities;

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::(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;

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::(d)  is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

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::(e)  is not a member of the armed forces of a Party to the conflict; and

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::(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.

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It should be noted that many countries including the U.S. are not signatory to the Protocol Additional GC 1977 (APGC77). So although it is the mostly widely accepted, it is not definitive.

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Under GC III if a soldier is captured by an enemy, he must be treated as a lawful combatant and therefore a Protected Person which for a soldier is as a Prisoner of War (POW) until the soldier has faced a competent tribunal (GC III Art 5). That tribunal may decide that the person is a mercenary using criteria in APGC77 or some domestic law equivalent. At that point the mercenary becomes an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5. The only exception to GC IV Art 5 is if they are a national of the authority which is holding them but in which case they would not be a mercenary under APGC77 Art 47.d.

Related Topics:
GC III - Lawful combatant - Competent tribunal - Unlawful combatant - GC IV

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If after a regular trial, a captured soldier is found to be a mercenary, then they can expect to be treated as common criminals and may face execution. As they are not POWs they can not expect repatriation at the end of the war. The best known, post-World War II, example of this was on June 28 1976 when an Angolan court sentenced four mercenaries to death and nine others to prison terms ranging from 16 to 30 years. The three Britons and an American were shot by a firing squad on July 10 1976.

Related Topics:
June 28 - 1976 - July 10

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The legal status of civilian contractors depends upon the nature of their work and their nationality in respect of the combatants. But if they have not in fact, taken a direct part in the hostilities (APGC77 Art 47.b) they are not mercenaries and are entitled to the protection of the Geneva Conventions.

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The situation during the Occupation of Iraq 2003 – shows how difficult it is to define what a mercenary is. While the United States governed the country, any U.S. citizen who worked as an armed guard could not be called a mercenary because they were a national of a Party to the conflict (APGC77 Art 47.d). With the handover of power to the interim Iraqi government it could be argued that unless they declare that they are a resident in Iraq i.e. a resident of territory controlled by a Party to the conflict (APGC77 Art 47.d), they are now mercenaries. If no trial of the people accused of being mercenaries takes place, then the allegations tend to evaporate in a spiral of accusations, denials and counter-accusations. It should be noted that Coalition soldiers in Iraq who are supporting the interim Iraqi government are not mercenaries, because either they are part of the armed forces of a Party to the conflict or they have been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces (APGC77 Art 47.f).

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See also privateer, Letter of marque, private military contractor.

Related Topics:
Privateer - Letter of marque - Private military contractor

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Gurkhas and French Foreign Legionnaires

The two best known units in which nationals of a country serve in another nation's armed forces are the British Brigade of Gurkhas and the French Foreign Legion. Soldiers who serve in these two elite units are not mercenaries.

Related Topics:
Brigade of Gurkhas - French Foreign Legion

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British Gurkhas are fully integrated soldiers of the British Army. They operate in formed units of the Brigade of Gurkhas and abide by the rules and regulations under which all British soldiers serve{{Ref|BritRegs}}, (Similar rules apply for Gurkhas serving in the Indian Army.) French Foreign Legionnaires are in formed units of the French Foreign Legion which is deployed and fights as an organized unit of the French Army. This means that as members of the armed forces of Britain or France they are not mercenaries under APGC77 Art 47.e and APGC77 Art 47.f.

Related Topics:
British Army - Indian Army - French Foreign Legion - French Army

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Mercenaries and domestic law

Some countries try to stop their citizens fighting in conflicts unless they are under the control of their own armed forces:

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• In 2003, France criminalized mercenary activities as defined by the protocol to the Geneva convention for French citizens, permanent residents and legal entities. (Penal Code, L436-1, L436-2, L436-3, L436-4, L436-5).
• In 1998 South Africa passed the "Foreign Military Assistance Act" which banned citizens, or residents, from any involvement in foreign conflicts except in humanitarian operations unless a government committee gave its approval for a deployment. In 2005 the legislation was being reviewed by the government because of South African citizens working as security guards in Iraq during the Iraq occupation and the fallout of the case against Mark Thatcher for the "possible funding and logistical assistance in relation to an alleged attempted coup in Equatorial Guinea" organised by Simon Mann.
• Under United States law (the "Neutrality Act"), an American citizen who participates in an armed conflict to which the United States is neutral may be subject to criminal penalties.
• Switzerland banned its nationals from serving as mercenaries in 1927 with the one exception being the Vatican Swiss Guards.