or, How to go on trial at the International Criminal Court in 1 Easy Lesson
In the comments to my post against using mercenaries to resolve the ongoing tragedy in Darfur, I’ve been asked what laws prohibit the use of mercenaries. I’m not a lawyer but this is pretty basic so I’ll hit a few high spots.
The key thing to understand is that mercenaries have no special standing. When a mercenary army goes actively in pursuit of an enemy, and kills or injures people or destroys property, they’re common criminals.
Protocol I to the Geneva Conventions of 1949, to which the United States is a signatory, governs the treatment and status mercenaries in international conflicts:
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 specially 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.
Once his or her status has been determined a mercenary is treated as a common criminal.
In 1977, the Security Council adopted a resolution condemning the recruitment of mercenaries to overthrow governments of UN member-States.
In any government in the world of which I’m aware mercenaries (private citizens) must surrender to duly-constituted law enforcement and military officers when those officers are operating under official warrant. Consequently, any mercenary force which confronts government regulars operating under proper warrant would be in violation of the law.
In 1989 the UN General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The U. S. is not a signatory to this convention but many African countries are. And more, if threatened by mercenary forces, would be likely to become signatories. This would render any such mercenary force and, in all likelihood, those who hired them subject to criminal prosecution at the ICC.
Let’s take an example. Let’s say a wealthy businessman in Gulfia, outraged by the publication of the cartoons of Mohammed by the New York Moon, hires mercenaries to punish the newspaper, its editors, and employees by destroying the offices of the newspaper. What sorts of crimes might the mercenaries be committing? For a start: destruction of property, murder, assault, battery, arson, various weapons violations, and conspiracy. The wealthy businessman and anyone else who contributed to the fund to hire the mercenaries would, at the very least, be subject to prosecution for conspiracy to commit a felony. Under the general law of conspiracy members of the conspiracy need not be aware of the details of the acts to be performed to be guilty of conspiracy.
There’s an actual example of just such an instance in the United States: take a look at the federal indictment of Zacarias Moussaoui. Those who hired Moussaoui are also subject to prosecution.
There are many grey areas on the use of mercenaries. For example, the status of the use of mercenaries by sovereign states is murky. And mercenaries may be used in self-defense e.g. security guards.
But that’s not what is being discussed when people talk about hiring mercenaries to resolve the situation in Sudan, at least not if they’re talking about the forces seeking out and opposing the janjaweed militias. Such an activity would, in all probability, be a violation of international law, might be a violation of U. S. law, and most certainly would be a violation of Sudanese law. And it could potentially expose the mercenaries and those who hired them to international prosecution.
Hi Dave,
The restrictions are meaningless insofar as mercenaries – with very few exceptions – are usually contracted by states who are parties to a conflict. Chad could hire Blackwater to repel Janjaweed raiders in conjunction with its regular armed forces. Or simply issue Blackwater employees Chadian uniforms. Regular armed forces may employ foreigners at will – not only is there the Foreign Legion example but theUS has 30,000+ foreign citizens serving in the American military.
Additionally, mercs may simply claim ideological motivation or even, residency. Prosecutions are so rare as to be limited to the ” Mad Mike” Hoare freebooter type caught in a privately financed failed coup.
That’s pretty much the case that I’m commenting on, Mark. I’m writing in opposition to the proposal I’ve seen floating around that a bunch of like-minded individuals fund their own private army to solve the situation in Darfur.
You’re right and as I noted above, mercenaries hired by states are in a grey area. But there’s nothing grey about NGO’s having their own armies that go out and execute offensive actions: that’s out-of-bounds.
Good points by Mark. But as a historical example of a “bad” mercenary who did make a lot of money in mid-career, let me cite Rolf Steiner. An allegedly racist German who took up arms for Biafra and ended up spending a lot of his own money in a hopeless fight because he believed in the justice of their cause. And as for Dave’s “there’s nothing grey about NGOs having their own armies…” Right on yer, Mate. It damned sure isn’t a grey area. But would you tell me that in every case an NGO has a military or paramilitary force operating within the territory of a failed state, these people are common criminals and the NGO’s action illegal? Yes, H. Ross Perot was a criminal for recruiting mercenaries to go in and rescue his employees. Bad man, he should go to jail to that the wonderful world of jurisprudence will be back in balance.
In answer to your question, lirelou, I think that our traditional system of justice has it right. It is always a crime for any individual or organization other than a state to wage war but the penalty should be determined by circumstances.
Well, in some ways the entire talk about the”mercenary” option is pointless whanking as (i) if you read the comments by the Blackwater spokesman it is very, very evident (as I very harshly put it to that deluded twit Mary) that they have zero interest in fighting -said so directly actually- in Tchad/Dar Fur but were pimping for business from the donor community for training and aide protection work; (ii) The Fur and Zaghaoua already have militias, they’re not going to pay expensive Westerners to do what they might do with extra munitions and the like – nor do they even have the cash.
This entirely leaves aside the legality issues or the reaction of the Tchadian and French forces regarding the same.
In short, a non-solution being pimped by sub-literates that misunderstood the actual proposition and want a fantasy response to the exagerated conflict of Dar Fur – which in any case they know fuck all about, and are merely using to engage in empty, ideological whanking to support their political fantasies/positions; whanking that has fuck all to do with a real understanding and involvement with Dar Fur.
As I think I’ve noted above I’m just trying to tamp down what I consider the rankest idiocy. You’ve added yet more sensible reasons why it’s idiocy. Thanks.
As to what we (meaning the U. S.) should do re: Dar Fur, I think the answer well may be nothing. I mourn the deaths. But I do not believe it is in the U. S. interests to intervene and I’m skeptical about our responsibility to deal with every evil in the world.
Should we arm those being attacked? Beats me—I know little about either side. But I mourn the deaths.
Well, to be frank, the Fur and Zaghaoua militias are not pretty characters either, and despite the fantasy of the Janjaouide – al-Qaeda connexion, have actual connexions with Islamists. Arming them against the central government might well help tip the country into civil war.
I personally don’t see that sending outside forces ill-equipped to differentiate between the groups fighting will actually do any good at all.
lokk i aint gonna say alot about a mercenarie they dont care who it is or anything top priority money and client thats all that matters and as far as i see it zaghaoua militias have never been great characters actually they are well ill talk about that some other time