Hired guns: wrong, but why?

July 10, 2009 3:16 PM

What line of reasoning does the Geneva Convention and international law use to illegitimate the use of mercenaries in war?

I understand that they are outright banned, and that they must be treated as unlawful combatants who are not to be treated as prisoners of war, but I am curious as to the arguments judging what precisely is ethically and legally wrong with their usage. I agree with the convention, but would like to read up on some good explanations as to why it is in place. Are the profit-driven motives of mercenaries in conflict with what should be a soldier's jus in bellum ethical judgment? What about PSCs?

posted by ageispolis to Law & Government (19 answers total)

The reasoning is create a clear demarcation between the combatants of sovereign states, so they can enjoy appropriate privileges, like prisoner-of-war status.

If you don't know who's who, you can't determine who is a lawful combatant, an unlawful combatant and a civilian, and whether they're adhering to a chain of command.

For example, if you captured a mercenary that was committing war crimes, you would have a hard time prosecuting someone from the nation that hired him for his war crimes. "That's a mercenary, I don't know who he is, you can't prove he was directly under my command, so you guys at the Hague can go screw yourselves."
posted by Cool Papa Bell at 3:39 PM on July 10, 2009

One of most important political goods a state must provide in order to be strong is human security (according to Robert I. Rotberg (.pdf)), both from internal and external threats. An absolute monopoly on the legal use of coercive force (i.e. absence of extra armed actors/mercenaries) makes it a lot easier to achieve security. But I am sure there is a lot more to it.
posted by atmosphere at 4:20 PM on July 10, 2009

CPB, the ban doesn't seem limited to clothing options -- dressing up a mercenary in your own uniform is also unlawful, it seems to my reading.

To my eyes, it just seems like a way to ensure that larger states aren't providing smaller states security without treaties. There's no foreign-funded A-Team ready to bail out whatever tiny nation-state without any ties to the country of origin.

So, this results in more defense pacts rather than enormous mercenary armies. The US 7th fleet is representing US interest in East Asia, rather than being a hired gun for Taiwan or Korea at any given time. It leads to less deniability, and fewer puppet-states and -armies.
posted by FuManchu at 5:09 PM on July 10, 2009

Armies can be controlled through diplomacy. Merceneries can only be controlled by money, meaning that rich countries/patrons have a serious competative advantage.
posted by blue_beetle at 5:11 PM on July 10, 2009

Also, I wonder what loopholes are used by the foreign legion, Ghurkas, and other foreign volunteers
posted by FuManchu at 5:12 PM on July 10, 2009

Also, I wonder what loopholes are used by the foreign legion, Ghurkas, and other foreign volunteers

The French Foreign Legion was always a unit of the French Army, commanded by the French. Gurkhas were originally contract mercenaries, but later established a more formal arrangement, similar to the FFL.

Moreover, both of these groups actually pre-date the Geneva Conventions.
posted by Cool Papa Bell at 5:40 PM on July 10, 2009

"That's a mercenary, I don't know who he is, you can't prove he was directly under my command, so you guys at the Hague can go screw yourselves."
This is also, of course, a big "advantage" to the use of private contractors / mercenaries.

Armies can be controlled through diplomacy. Merceneries can only be controlled by money.
It's not quite that clean a distinction. Consider the Army College Fund.
posted by rokusan at 5:53 PM on July 10, 2009

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 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.

So the key is that a mercenary is someone serving for significant monetary gain.

Note that POW is a special protected class with quite a lot of privileges considering their status.

I think the moral thinking behind this wrt mercenaries is that since they're privateers in it for the money, should they become captured they can their secure own special treatment within their own means, without any recourse to the generous provisions of the Conventions.
posted by @troy at 5:58 PM on July 10, 2009 [1 favorite]

This site lists the Geneva Conventions and the international agreements that preceded them. I use it all the time for research and teaching. Your answer is in here along with a lot of other fascinating stuff.
posted by vincele at 8:44 PM on July 10, 2009

The French used to recruit soldiers in one colony and ship them to another colony and vice versa (eg Senegal and Madagascar). That way the soldiers weren't connected to the people and place where they served and would willingly obey orders to commit atrocities that they would not otherwise do at home.
posted by Pollomacho at 8:54 PM on July 10, 2009

I cannot remember whether this book addresses your precise question-- a quick perusal of its index could settle that-- but I highly recommend Gary Bass' Stay the Hand of Vengeance.

Other works by Gary Bass might address the mercenary question if this book does not. His bibliography might also point you in the right direction.
posted by vincele at 9:29 PM on July 10, 2009

The Crimes of War Project has an article discussing the status of mercenaries.

International laws concerning the status of mercenaries and the use of them by warring parties are extremely murky due to the changing political atmosphere in which they have been drafted. Mercenarism is perhaps the second-oldest profession. Back in the days of Italian city-states even the Pope contracted condottieri to hire outside soldiers for defense. In the seventeenth and eighteenth centuries the Swiss were renowned for their free standing battalions hired out to other European countries. It was not until this century, during the turbulent period of decolonization in Africa, that mercenaries gained notoriety as bloodthirsty dogs of war wreaking havoc with the sovereignty of weak, newly independent African States. Such freelance guns-for-hire are accountable to no nation-state and no international laws. They will work for the highest bidder regardless of the cause and are rightly regarded as destabilizing agents. After all, they have no stake in the country’s future and as long as war continues, so do their salaries.

So, in 1968, the United Nations General Assembly and the Organization for African Unity established laws against mercenaries, making the use of them against movements for national liberation and independence punishable as a criminal act. In 1977, the Security Council adopted a resolution condemning the recruitment of mercenaries to overthrow governments of UN member-States. The 1977 Additional Protocol I to the Geneva Conventions, in Article 47, stripped mercenaries of the right to claim combatant or prisoner of war status, thus leaving them vulnerable to trials as common criminals in the offended State. It also left the definition of mercenaries, in the view of many critics, dangerously subjective and partly dependent upon judging a person’s reasons for fighting.

posted by russilwvong at 1:43 AM on July 11, 2009

Armies can be controlled through diplomacy. Merceneries can only be controlled by money, meaning that rich countries/patrons have a serious competative advantage.

Rich countries are always going to have a serious competitive advantage which makes the use mercenaries superfluous.* (Unless you consider a non-draft army mercs, or their foreign legions, which clearly Geneva does not). People join the FFL and the Spanish Foreign Legion not to forget women, but to build resumes. Once they graduate, the freelancers tend to get their jobs in third world countries where their talent is in training and directing raw recruits.



*(Blackwater in Iraq is an interesting aberration, but an aberration still.)
posted by IndigoJones at 6:45 AM on July 11, 2009

Would one reason be that mercenary forces, in and of themselves, are not signatories to conventions governing military conduct during conflicts? Also, presumably mercenaries could complicate the dispensation of the conflict through being available to the highest bidder, making their allegiance theoretically questionable, and therefore unable to validly contribute to a 'Just War'. As I understand it, Just War Theory argues that one of the burdens of establishment is an investiture in the moral outcome of the conflict, which again would be difficult to reconcile with the usage of mercenaries.
posted by planetthoughtful at 11:38 PM on July 12, 2009

Just to be clear, according to the Geneva Conventions states agree not to use mercenaries in their conflicts with one another. The use of private military contractors like Xe by strong and weak states in other circumstances is quite common. There are many reasons for this including skill level, efficiency, lack of political oversight and plausible deniability. The US government's current use of contractors is unprecedented in scale, but is not an aberration.

The prohibition on mercenaries is an anachronism. There is no reason why they could not be regulated in the same way that national forces are when it comes to international law. That said, there would be quite drastic consequences if non-state actors began to contract mercenary armies. There is a good deal of hand wringing about the slippery slope; at least, this is why Kofi Annan opposed their use.
posted by B-squared at 11:00 AM on July 14, 2009

The US government's current use of contractors is unprecedented in scale, but is not an aberration.

I'm always willing to be proven wrong, but I'm really not coming up with other examples of the US hiring mercs. Montagnards during Vietnam is really all I can come up with. and I believe that they already had a dog in that fight. Wanted autonomy, I think. I'd put joining forces and even paying an ally against a common enemy not strictly mercenary. Else we could call Soviet Russia mere mercs in WWII.
posted by IndigoJones at 2:08 PM on July 14, 2009

there would be quite drastic consequences if non-state actors began to contract mercenary armies.

for which see drug lords.

Relevant quote is from the Roman politico Crassus who said you should call no man rich who cannot afford to field his own army.
posted by IndigoJones at 2:10 PM on July 14, 2009

The United States uses contractors, not mercenaries. It is a delicate hairsplitting exercise to distinguish between the two. Blackwater was not engaged in mercenary work (not actively engaged in combat against Iraqi government forces). On the other hand, many private contractors engage in work intimately related to warfare. Off the top of my head, MPRI, DynCorp and Xe have all worked for the US. MPRI's role in Croatia's civil war, pushed by the US, was particularly inauspicious.
posted by B-squared at 4:30 PM on July 14, 2009

Fair enough, and thanks for the quick reply. Interesting that all are of recent vintage. Not that I'm arguing for a return of the draft, mind....
posted by IndigoJones at 6:07 AM on July 15, 2009