Alec Casey
The presence of mercenaries in modern conflicts has garnered media attention. From Blackwater in Iraq to the Wagner Group in Ukraine, mercenaries have become a ubiquitous presence in 21st century conflicts.[1] This raises important questions—What does international law have to say about mercenaries? Have state actors and other entities actually respected the law surrounding their deployment?
First, Additional Protocol I to the Geneva Convention defines mercenaries as people recruited for and taking part in an armed conflict that are: motivated by private gain, neither a national of a conflicting party nor a resident of an occupied territory, not a member of the armed forces of a conflicting party, and have not been sent by a nonparty state as a member of its armed forces.[2] Article 5 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries prohibits state parties from recruiting, using, financing, or training mercenaries; specifically prohibiting the recruitment, use, financing, or training of mercenaries in order to oppose the right of peoples to self-determination.[3] Article 6 calls on state parties to cooperate in taking “all practicable measures” to prevent the use of mercenaries in a way that contravenes the convention, as well as cooperate in taking administrative action to prevent offenses from being committed.[4] Like other conventions, these are more important than mere guidelines due to the fact that they are binding on ratifying states.[5] As for specific importance, The International Convention against the Recruitment, Use, Financing and Training of Mercenaries’ importance lies in its pertinence to the use of mercenaries and the belief of contracting states that the convention will help eliminate their proliferation.[6] Protocol I’s specific importance lies in its close relationship to the Geneva Convention and international humanitarian law.[7]
Non-binding documents include the Montreux Document, a multi-national agreement which lays down guidelines on the use of “private military and security companies” (PMSCs).[8] The guidelines include, inter alia, requirements for home and contracting states to ensure both PMSCs from a state and PMSCs contracted by a state respect International Humanitarian Law.[9] For example, Section IV of “Good Practices for Home States” calls upon states where PMSCs are from to ensure the PMSC has no reliable record of serious crimes, including violations of international humanitarian law.[10] It should be noted that the Montreux Document considers PMSCs as usually not being mercenaries, but that PMSC employees can be mercenaries in some cases.[11]
Overall, mercenaries and the state actors that employ them have not followed international law and guidelines. There are several examples. For example, the 2007 Nisour Square incident involved four Blackwater private security guards firing on Iraqi civilians, killing 14.[12] As noted by the UN Human Rights Council, their conviction in a US court was an anomaly, and they were pardoned in 2020.[13] Another example is the indiscriminate killing of civilians by Dyck Advisory Group, who Mozambique hired to combat al-Shabaab insurgents in the country.[14] Both of these incidents were found by the Human Rights Council to impinge upon the right to life, and they stated that the aforementioned companies were not operating in support of humanitarian actors.[15] The overturning of convictions for Blackwater personnel highlights the lack of respect states hold for the international law and guidelines in this area.
The quintessential example of mercenaries opposing a people’s right to self-determination—as prohibited by Article 5 of the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries–is Russia’s Wagner Group. Russia has relied on Wagner to support its invasion of Ukraine.[16] This, coupled with statements by Russian officials that Russia intends to depose the current Ukrainian government, shows that Wagner is interfering with Ukraine’s right to self-determination and is thus violating the aforementioned Article 5.[17] There is also evidence of Wagner arming militias battling the Sudanese government.[18] It should be noted that many Wagner Group personnel may not always be considered mercenaries under Article I, at least in the Ukraine context, because they were Russian nationals.[19] In other words, Wagner Group’s activities and Russia’s use of them once again highlights the lack of respect states (and mercenaries) hold for the pertinent international law and guidelines.
One reason as to why states do not follow the conventions and guidelines on mercenaries may have to do with whether the state is party to the international agreement. Major military players tend not to be parties. The United States never ratified Protocol I.[20] Russia revoked its ratifying statement in 2019.[21] Currently, 37 states are parties to the convention, with seventeen having signed.[22] Neither the US, Russia, nor China is a party to the convention.[23] As for the Montreux Document, governmental experts from China and the US participated in its creation, but these are merely guidelines.[24]
Major world powers may have violated international law and guidelines surrounding mercenaries and/or PMSCs, but this does not mean that no one is committed to following them. For example, Cote d’Ivoire has been committed to ratifying the 1989 Convention mentioned earlier.[25] In reaction to mercenaries perpetrating human rights violations within its borders, the country has criminalized involvement in mercenary activities.[26] It has also attempted to prevent mercenary and private security recruitment by way of implementing policies that spur productivity in other employment sectors.[27] However, Cote d’Ivoire has witnessed an increase in private security companies with an absence of corresponding framework to regulate their actions.[28] Still, the UN Working Group that addresses mercenaries noted the country’s progress in areas such as stability and social cohesion.[29] In short, although major military powers tend to ignore international law and agreements in this field, there are examples of smaller states stepping up to the plate.
[1] Steve Fainaru & Saad al-Izzi, U.S. Security Contractors Open Fire in Baghdad, Wash. Post (May 27, 2007), https://www.washingtonpost.com/wp-dyn/content/article/2007/05/26/AR2007052601394.html; Nathan Luna, et al., What is the Wagner Group? The ‘Brutal’ Russian Military Unit in Ukraine, ABC News, (Aug. 23, 2023, 1:07 PM), https://abcnews.go.com/International/International/wagner-group-brutal-russian-military-group-fighting-ukraine/story?id=96665326.
[2] Protocol additional to the Geneva Conventions of 12 Aug.1949, and relating to the protection of victims of international armed conflicts (Protocol I), art. 47, June 8, 1977, 1125 U.N.T.S. 3.
[3] International Convention Against the Recruitment, Use, Financing and Training of Mercenaries art. 5, Dec. 4, 1989, 2163 U.N.T.S.
[4] Id. at art. 6.
[5] Frequently Asked Questions regarding the Convention on the Rights of Persons with Disabilities, UN Enable (2007), https://www.un.org/esa/socdev/enable/convinfofaq.htm#:~:text=An%20international%20convention%20or%20treaty,the%20commitment%20of%20each%20country (providing a definition for conventions and when they are binding on states).
[6] International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, supra note 3, at 1.
[7] The Geneva Conventions and their Commentaries, Int’l Comm. of the Red Cross (last visited Oct. 5, 2024), https://www.icrc.org/en/law-and-policy/geneva-conventions-and-their-commentaries#:~:text=The%20Geneva%20Conventions%20and%20their%20Additional%20Protocols%20are%20international%20treaties,an%20end%20to%20all%20breaches. (stating that the Geneva Conventions, additional protocols, and international treaties are at the core of international humanitarian law and limit the barbarity of war).
[8] The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, Int’l Comm. of the Red Cross (Sept. 17, 2008) https://www.montreuxdocument.org/pdf/document/en.pdf.
[9] Id. at 16–17, 25–26, 33–34.
[10] Id. at 26 (§ 60 (a) calls upon home states authorizing PMSCs to make sure that the PMSC has “…no reliably attested record of involvement in serious crime (including organized crime, violent crime, sexual offences, violations of international humanitarian law, bribery and corruption) and, insofar as the PMSC or its personnel had engaged in past unlawful conduct, has appropriately dealt with such conduct…”)
[11] Id. at 40.
[12] Hum. Rts. Council, Rep. of the Working Grp. on the use of Mercenaries as a Means of Violating Hum. Rts. & Impeding the Exercise of the Rt of Peoples to Self-determination, U.N. Doc. A/HRC/48/51, at 13 (Jul. 2, 2021).
[13] Id. at 13–14.
[14] Id. at 14.
[15] Id.
[16] Jonathan Beale, Russia-Supporting Wagner Group Mercenary Numbers Soar, BBC (Dec. 22, 2022), https://www.bbc.com/news/world-europe-64050719.
[17] Russia Will Help Ukrainians ‘Get Rid of Regime’, Says Lavrov, Al Jazeera (Jul. 25, 2022), https://www.aljazeera.com/news/2022/7/25/in-pivot-russia-says-goal-in-ukraine-is-to-oust-zelenskyy?traffic_source=KeepReading.
[18] Nima Elbagir, et al., Exclusive: Evidence Emerges of Russia’s Wagner Arming Militia Leader Battling Sudan’s Army, CNN (Apr. 21, 2023, 7:57 PM), https://amp.cnn.com/cnn/2023/04/20/africa/wagner-sudan-russia-libya-intl/index.html.
[19] Jim Sleesman and Emma Kingdon, Unconventional Warfare Under Additional Protocol I, 42 B. U. Int’l. J. 59, 112 (2024).
[20] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), United Nations,) https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800f3586&clang=_en (last visited Sept. 26, 2024.
[21] Russia’s Putin Revokes Geneva Convention Protocol on War Crimes Victims, Reuters, (Oct. 17, 2019), https://www.reuters.com/article/world/russias-putin-revokes-geneva-convention-protocol-on-war-crimes-victims-idUSKBN1WW2J3/.
[22] See International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, U.N. Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-6&chapter=18&clang=_en, (last visited Sept. 29, 2024).
[23] See Id.
[24] The Montreux Document, supra note 6.
[25] End-of-mission statement by Carlos Salazar Couto, Chair of the United Nations Working Group on the use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination, and Ravindran Daniel, Member of the Working Group on Their Visit to Côte d’Ivoire, UN HRC (Mar. 13, 2024) https://reliefweb.int/report/cote-divoire/end-mission-statement-carlos-salazar-couto-chair-united-nationsworking-group-use-mercenaries-means-violating-human-rights-and-impeding-exercise-right-peoples-self-determination-and-ravindran-daniel-membe.
[26] Id. at 2.
[27] Id. at 3.
[28] Id. at 4–5.
[29] Id. at 6.