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Mercenaries

MERCENARIES

MERCENARIES. Mercenaries were paid soldiers who were bound to their employers by profit motive rather than loyalty. They existed in European armies from antiquity and fought in large numbers in the early modern period.

MERCENARIES IN FOURTEENTH- AND FIFTEENTH-CENTURY ITALY

Fourteenth- and fifteenth-century Italian states took the lead in using mercenaries. The accumulation of wealth by towns in the northern and central part of the peninsula created the means to spend, while incessant wars and weak feudal structures provided the need to hire military power. In the fourteenth century, the Italian military scene was dominated by foreign adventurers. These were mostly Germans, French, and Hungarians who fought in local armies. They coalesced into "free" companies: private armies led by captains elected by their troops, available for hire to the highest bidder. In the absence of pay, these armies roamed the countryside plundering and extorting money. There were several German "Great Companies," but the most famous of the bands was the English "White Company," which descended into Italy in 1361 during a truce in the Hundred Years' War (13371453). Sir John de Hawkwood, a captain of the White Company, became the most successful soldier of the era. When he died in 1394, his last employer, the government of Florence, buried him with high honors in the cathedral.

John Hawkwood's emergence apart from his band was part of a larger process whereby individual mercenary commanders became valuable commodities. This development resulted from the late-fourteenth-/early-fifteenth-century economic and political consolidation on the peninsula that reduced the number of states that could hire mercenaries. This consolidation also strengthened a fortunate few mercenaries, who now sought lasting arrangements with men of assured reputations. Powerful states like Milan and Venice took the lead in granting long-term mercenary contracts and establishing more permanent armies. The new generation of mercenary captains was almost exclusively Italian, and prolonged service had the unfortunate consequence of mercenaries sometimes seizing political power in the states they served. An example is Francesco Sforza (14011466) from the Romagnol town of Cotignola, who took control of Milan in 1450.

Mercenaries were hired in Italy by means of a condotta, 'contract'. The term condottiere, 'contractor', Italian for mercenary captain, derives from condotta. A condotta typically spelled out the number of troops, the conditions of service, and the amount of pay. Most condotte involved horsemen, the most valued troops, but they could also include infantry. In fifteenth-century Italy mercenary cavalry comprised units known as lances, which consisted of three men and three horses. Employers usually retained the right to inspect the brigade; the mercenaries claimed a share of the booty and ransoms. Different kinds of men fought as mercenaries. Some, like Niccolo Piccinino (13801445), came from humble backgrounds; others, like Federigo da Montefeltro (14221482), were learned men from noble families. Niccolò Machiavelli criticized mercenaries as cowardly in battle, "thirsty for power, undisciplined and disloyal," but many were in fact reliable and competent fighters. Musio Attendoli Sforza (13691424) and Braccio da Montone (13281424) were two of the most skilled tacticians of the fifteenth century. Musio exhibited considerable expertise maneuvering large armies and making effective use of his infantry. Braccio distinguished himself for his audacity in battle and his penchant for dividing his army into small units and committing them piecemeal into battle. Many of the captains of the fifteenth century fought under either Musio or Braccio and adopted their methods.

MERCENARIES IN OTHER PARTS OF EUROPE

Mercenaries were used in significant numbers elsewhere in Europe, particularly in wars in France and the Holy Roman Empire. The Swiss emerged in the fifteenth century as a frightening fighting force. Unlike the condottieri in Italy, the Swiss formed infantry units, which were phalanxes of men armed with swords and halberds (a type of battle axe on a pike) for fighting in close order. Their weapons protected them from cavalry charges and gave them considerable counteroffensive striking power. Whereas capture and ransom were a fundamental part of Italian warfare, the Swiss did not take prisoners and often skewered their opponents with their sharp weapons. In the service of the French monarch, the Swiss scored impressive victories against the armies of Charles the Bold of Burgundy in 14761477.

In Germany, Emperor Maximilian I (ruled 14931519) created his own infantry, the Landsknechts, to rival the Swiss. Predominantly drawn from southern Germany, this infantry trained in the Swiss manner and were armed with pikes. They distinguished themselves by wearing loud, colorful clothing, and they incorporated handguns into their units as these weapons became more common on European battlefields. Their battles with the Swiss, whom they hated, were some of the bloodiest of the era.

The sixteenth century saw the rise of what the historian Fritz Redlich has called the "German military enterpriser." This breed of mercenary bore a certain resemblance to the Italian condottiere but operated on a larger scale, raising whole armies, extending credit to large cadres of soldiers and, generally, treating war as a business enterprise. The phenomenon reached its peak in the seventeenth century during the Thirty Years' War (16181648). At one point during the war, more than 400 military enterprisers were active. The most famous was Albrecht von Wallenstein (15831634), a petty nobleman of Protestant background from Bohemia. He fought for the Catholic Habsburgs, raised armies in excess of 100,000 men, and acquired states stretching from Bohemia to the Baltic. He organized arms production on his lands, recruited men, and retained the right to promote officers. His was a highly paradoxical personality: A convert to Catholicism, he remained intensely superstitious. He supposedly disliked noise so much that upon arrival in a town he ordered all the dogs and cats put to death.

The Thirty Years' War notwithstanding, the seventeenth-century European military trend was toward more centrally organized professional state armies. But governments did not hesitate to employ mercenaries when the need arose. Prussia recruited men from outside its frontier, often from lesser German states. The army of the Prussian ruler Frederick William I (ruled 17131740) was only two-thirds native. One of the most well-known suppliers of mercenaries at the time was Hessen-Kassel, a relatively poor state. Hessian mercenaries served opposing sides the War of Austrian Succession (17401748) and were used by the English in the American Revolution (1776).

See also Italy ; Military ; Prussia ; Thirty Years' War (16181648) ; Wallenstein, A. W. E. von .

BIBLIOGRAPHY

Anderson, M. S. The War of the Spanish Succession, 17401748. London and New York, 1995.

Hale, J. R. War and Society in Renaissance Europe, 14501620. Baltimore, 1985.

Howard, Michael. War in European History. Oxford, 1976.

Mallett, Michael. Mercenaries and Their Masters. London, 1974. Classic account of the Italian condottieri, which reassesses their broader role in society.

Parker, Geoffrey, ed. The Thirty Years War. London and New York, 1984.

Redlich, Fritz. The German Military Enterpriser and His Work Force. 2 vols. Wiesbaden, 19641965.

William Caferro

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mercenaries

mercenaries

Warfare went through an important change in the late Middle Ages. Once the domain of mounted knights who fought in the service of their feudal overlords, war became a matter for professional mercenary armies that fought for powerful kings. The mounted knight was no match for masses of archers and crossbowmen, who dominated the battlefield during the Hundred Years' War in France. This war, which dragged on for generations until the final defeat of the English in the 1450s, demanded permanent armies in the field. A permanent force was an impossibility under a feudal system that demanded only forty days of annual service from a king's vassals.

At the same time, the economy of Europe was expanding through better transportation and communications, and the new international banking system relied on credit, money, and bills of exchange. This made it possible for rulers to borrow and to hire mercenaries to fight their battles. Mercenaries could take the field for as long as they were paid, allowing kings and princes to mount long campaigns against their rivals and undertake sieges of enemy fortresses. The system had its roots in the practice of scutage, or payment by a vassal in lieu of military service. The payment of scutage allowed feudal lords to hire professional soldiers, who trained from a young age in the military arts and often proved more able than hereditary knights who simply fought out of traditional obligation.

Mercenaries came from all corners of Europe, but they were especially numerous in Switzerland, then a poor land where young men looked elsewhere for opportunity. The Swiss infantry enjoyed a reputation as skilled fighters, well disciplined and well armed with fearsome halberds, which could kill an armored knight at a single blow. Mercenary captains assembled small armies, drilling them relentlessly with formation and fighting tactics, in which infantry, archers, and cavalry were carefully coordinated.

The city-states of Italy favored mercenaries as an alternative to levies of the citizens. Bankers, industrialists, and merchants did not want to go to war, and disrupt the commerce that was essential to their prosperity. Instead, they hired condottieri (a word that means contractors) to fight their battles. The best mercenary captains were well paid and in very high demand, and were honored by their patron cities with noble titles and monuments. Not everyone in Renaissance Italy appreciated the service of mercenaries, however. The diplomat and political philosopher Niccolo Machiavelli detested mercenaries as a symptom of a divided and weak Italian nation, one that was losing out while rival societies were organizing themselves into powerful, centralized kingdoms.

The French king Charles VII organized a standing army of mercenaries, organized into compagnies d'ordonnance. These permanent armies of France as well as the Holy Roman Empire invaded Italy in the late fifteenth and early sixteenth centuries, and eventually put an end to the independence of the Italian city-states. By the end of the Renaissance, mercenary armies that were hired for short campaigns were obsolete. They were replaced by standing national armies, which were raised by levies, and permanently garrisoned in strongholds.

See Also: Macchiavelli, Niccolo; Montefeltro, Federigo da

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Mercenaries

MERCENARIES


Mercenaries are soldiers for hire. They differ from a normal army to the extent that mercenaries fight only for money, or for anyone who will hire them, and not out of allegiance to a flag or their homeland. Sometimes "mercs," as they are also known, will sell their services as individual warriors. At other times a government in need has hired entire armies. The use of mercenaries has a long history. The practice dates back at least to ancient times. Ancient Egyptians and Babylonians used mercenaries. Greeks served as mercenary soldiers in Hellenistic states. In the late Roman Empire, emperors hired tribes from the outer regions of the empire to fight their battles. In the decades since World War II (19391945) mercenaries have fought post-colonial wars in Africa, cocaine wars in South America, and from the deserts of the Middle East to the jungles of Asia. The typical mercenary is a former soldier who took up fighting for pay after his own army no longer needed him. Defeated German soldiers from World War II served as mercenaries in many small wars around the globe. The collapse of the Soviet Union saw many former Russian soldiers plying their trade as mercenaries. Sometimes dictators with an unruly population may hire mercenaries rather than risk arming their own people. The British army has a long history of loaning out its soldiers to former colonial nations to train and command local armies. Former U.S. Army soldiers have also served as mercenaries. There seems little doubt that mercenaries will continue to see a demand for their services in a world so rife with conflict.

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Mercenaries

Mercenaries

Amercenary is a soldier hired to fight for pay for a foreign country. Mercenaries may be employed because of their special skills or their willingness to take part in activities that the state's citizens avoid. Sometimes mercenaries fight alongside a country's own forces. The use of mercenaries began in the ancient world, and by the Renaissance, mercenaries formed the basis of most armies.


Renaissance Mercenaries. The mercenary units of the Renaissance stood out because of their large size—several hundred to several thousand troops. Estimates of the total number of mercenaries in Europe in the 1500s and 1600s range from 100,000 to 1 million. Sometimes mercenaries came from within the state that hired them, but more often they came from foreign countries. During the Middle Ages, a mercenary unit might include people from various lands. However, Renaissance states usually recruited mercenaries as a group from certain regions, such as Germany, Switzerland, or Italy. As warfare became more common and more destructive, the number of mercenaries employed in Europe increased.

The most popular mercenaries were soldiers armed with pikes or primitive guns called arquebuses. Units of artillery filled out the ranks. Heavy cavalry, or mounted knights, and gunners formed the core of Italian armies during the Renaissance.


The Mercenary Life. Men joined mercenary companies for a variety of reasons. Pay was the most obvious reason, although the wages that mercenaries received barely enabled them to make a living. However, other financial opportunities were available to mercenaries. Armies often sacked the towns that they conquered, seizing control over the city and its residents. Troops reportedly looted more than 20 million ducats after the sack of Antwerp in 1576. Taking prisoners and holding them for ransom was another way to earn money.

Mercenary life held other attractions, too. It offered adventure and a sense of freedom from the boredom of everyday life. Some men used mercenary service as an opportunity to indulge in violence and sexual excesses outlawed by civilized society. Although it paid little, mercenary service did offer steady work in an age plagued by underemployment and unemployment.

Mercenaries had a reputation for being undisciplined and difficult to control. In fact, they were usually reliable unless their pay was late or missing. In such cases their behavior could be unpredictable, from taking out their anger on the local population to forcing commanders to attack against their wishes. Even when they received their pay, mercenaries might disobey orders for their own reasons. For example, the leader of the Holy League army at the battle of Fornovo in northern Italy in 1495 ordered his troops to take no prisoners. However, many soldiers ignored this order to profit from ransoming captives.

The Italian political writer Niccolò Machiavelli popularized the image of the undisciplined mercenary who avoided combat and fought only to collect pay. He also accused mercenaries of refusing to engage in real combat when facing foes that came from the same region. Like Machiavelli, many people questioned the loyalty of mercenaries. Critics accused them of changing sides at will and encouraging citizens to avoid military careers. Modern historians have shown that this picture is largely inaccurate. They find mercenaries in general to be loyal and skilled at the art of war.


Contract Fighters. The most effective Renaissance mercenaries were the Italian condottieri, named for their employment contract, or condotta. The condottieri arose from the commercial success of Italian states that could afford to pay others to fight for them. They were also a product of the reluctance of most rulers to arm civilians. Condottieri leaders usually came from the noble classes, and the profits of war often generated much-needed revenue for their principalities.

At first, contracts called for a firm period of employment (the ferma) and an option period, during which the employer could renew the contract. The normal ferma lasted for three months. This system suited the needs of the employer and the seasonal nature of warfare in the Middle Ages, when armies went home during the winter. But as standing armies emerged, states faced a continuous need for soldiers. The terms of the contracts changed to meet this need, and some mercenaries served for extended periods of time. This often led to changes in the relationship between mercenary units and the state that employed them. Venice, for example, offered many benefits, such as property, pensions, and even eligibility for public office, to ensure the loyalty of its condottieri.

(See alsoArms and Armor; Warfare. )

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Mercenaries

Mercenaries

The general definition of mercenaries focuses on the following two elements: the foreign nature of the military service provided and the primarily financial motivation in providing combat service. Mercenarism refers to the hiring of foreign individuals or groups of individuals by a state or entity to serve in a combat role for private gain. In 1987 the United Nations Commission on Human Rights appointed Special Rapporteur Enrique Bernales Ballesteros of Peru to analyze, monitor, and report on all forms of mercenarism. Despite growing condemnation, mercenaries continue to exist in many different forms and are involved in diverse activities.

Historical Overview

Mercenarism dates back to antiquity, a time during which armies were predominantly comprised of foreign professional soldiers seeking personal gain. The first account of mercenarism was recorded by Xenophon in Anabasis; there he noted Cyrus's use of ten thousand mercenaries against his brother Artaxexers in a bid for the Persian throne in 401 bce. A large number of these foreign soldiers were Arcadians, Achaeans, and Peloponnesians who had endured economic instability following the Peloponnesian War. In 334 bce the Persians used Greek mercenaries to fight against Alexander the Great, who in turn brought more than 44,000 mercenaries to Asia Minor. His Macedonian successors also used highly trained mercenary armies to wage war, as did Greek city-states in the fourth century bce. The First Punic War between Rome and Carthage (264–261 bce) originated in mercenary activity, and in the second century German mercenaries played a pivotal role in defending the Roman Empire. For more than one thousand years mercenaries were the backbone of the army of the Eastern Roman Empire. The rulers of Byzantium and Carthage also relied on the military expertise of foreign soldiers in defending their respective empires.

Throughout the Middle Ages the phenomenon of mercenaries persisted and their recruitment increased. In the twelfth century mercenaries were mostly used for colonial expansion and for maintaining foreign domination in colonized countries. The Crusades gave rise to a more anarchic form of mercenarism, including postconflict exploits following the emergence of mercenary groups. The formation of coalitions in response to these groups eventually led to their temporary defeat in the twelfth and thirteen centuries. Comprised of a variety of nationalities, including English, French, Flemish, German, Italian, and Catalan fighters, these groups reappeared as Grandes Compagnies during the One Hundred Years War (1337–1453) and were finally disbanded in 1453. Between the thirteenth and sixteenth centuries the condottieri, freelance commanders of Catalan, English, German, and Hungarian troops, were hired in Italy to recruit and arm men and to conduct hostilities within the Italian republics. The rise of the absolute monarchy in the fifteenth and sixteenth centuries led to an enhancement in the status of mercenaries, whom rulers relied on to fight wars and to maintain order within their kingdoms. Mercenarism was thus relatively institutionalized during the feudal period; kings and lords had at their disposal a collection of individuals willing to fight for pay.

Both the progressive extinction of privatized war and the consolidation of the nation-state eventually gave rise to a new form of mercenarism. Traditionally, the mercenary had sold his services to a foreign state or entity. However, in the fifteenth and sixteenth centuries a prescribed number of soldiers were temporarily rented out by one state to another foreign sovereign. This procurement of foreign troops was extensive during the Renaissance and differs from the undisciplined mercenary companies of the Middle Ages. Swiss and German troops were leased regularly between the fifteenth and nineteenth centuries, and played an important role in the religious wars during this period. For example, the Swiss Guard, founded in the sixteenth century, continues to serve the Vatican. Widespread state practice gave mercenaries an international legal status and legitimacy until the eighteenth century, during which the rise of nationalism and the adoption of the standing army to defend the state led to a decline in mercenarism. The development of the law of neutrality in the nineteenth century, which generally prohibited the enlistment of a state's citizens in foreign armies, also prompted a regression of mercenary activities. This evolution was most notable in Europe, for colonial powers continued to rely on the use of local mercenaries in the Americas, Indies, and Africa.

In the twentieth century the practice of mercenarism evolved and reappeared in a different form. Mercenarism intensified within the context of decolonization in the 1960s and the recognition of the right to self-determination. These independent mercenaries, often referred to as "soldiers of fortune," "wild geese," or les affreux (the dreaded/horrible ones), surfaced in post-colonial Africa and were used to destabilize newly independent governments. By the 1960s, however, mercenaries were no longer accepted as an integral component of armed forces. The use of mercenaries nevertheless continued in the following decades, including their active participation in the civil wars in the Congo (1960–1963; 1964–1967), Nigeria (1968–1969), the Sudan (1970), Angola (1975), and Latin America in the 1980s. Also commonly referred to as traditional mercenaries—many of whom came from former colonial armies, including the French Foreign Legion and Belgian army—they threatened weak, newly independent nation-states, often influencing intrastate conflict on the African continent. During this time mercenary activities tended to be disorganized and undisciplined and were comprised of a relatively small number of individuals. Vital economic interests were often at stake and mercenarism involved activities such as insurgencies and counterinsurgencies, regime change, and civil conflicts.

International Law

Recently, the legal framework to prohibit mercenaries has been envisaged through norms regulating the general use of force between states. Of particular relevance to the question of mercenaries is Article 4 of the 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Convention V), which stipulates that "(c)orps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents." States that have chosen to remain neutral during an armed conflict are obliged under Article 4 to prevent the formation of mercenary groups on their territory for the purpose of intervention in the armed conflict. However, international humanitarian law (the law of armed conflict) made no formal distinction between mercenaries and other combatants prior to the adoption of the protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977. Before that time mercenaries were regarded as respectable professionals and usually accorded prisonerof-war status when captured, thus benefiting from protection under the Third Geneva Convention relative to prisoners of war, provided that they met the conditions of Article 4.

According to Article 47 of Additional Protocol I, mercenaries are not entitled to prisoner-of-war status, although a state may grant them equivalent treatment if it so desires. Under Article 45 any captured combatant is presumed to be a prisoner of war until his or her status has been determined by a competent tribunal. If a mercenary is not granted combatant or prisoner-ofwar status, he or she must be treated as a civilian having unlawfully participated in armed conflict. In qualifying as a civilian, protection is afforded by Article 4 of Convention (IV) relative to the protection of civilians in times of war (Geneva, August 12, 1949), subject to certain conditions enumerated in Article 5. Furthermore, all parties to a conflict must observe the fundamental treatment and judicial guarantees afforded to persons affected by armed conflict and who find themselves in the hands of a party to the conflict (Article 75).

International humanitarian law does not address the issue of the legality of mercenary activities or prohibit the use of mercenaries by states or other entities. The law of armed conflict simply defines the status of mercenaries and the implications in the event of capture. According to the definition contained in Article 47 of Additional Protocol I, 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 or 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.

These requirements are cumulative in that they must all be applicable for an individual to be categorized as a mercenary. The narrow scope of this definition reflects a fundamental tenet of international humanitarian law, which is to ensure that the loss of special safeguards only occurs in very limited circumstances.

The law of armed conflict does not envisage protection in internal armed conflict (civil wars) for persons who would otherwise qualify as mercenaries in international armed conflict, because the status of combatant does not exist in situations of internal conflict. In an international armed conflict a prisoner of war cannot be convicted for having fought in a conflict, whereas in a civil war, no such immunity exists. Nevertheless, civil war mercenaries are entitled, at a minimum, to certain fundamental guarantees such as humane treatment and nondiscrimination (Common Article 3 of the Geneva Conventions). Out of battle mercenaries are also protected by applicable international human rights law and other applicable humanitarian law, especially Articles 4 and 5 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. Mercenaries in situations of internal armed conflict are also subject to the laws of the territory in which the conflict takes place.

In contrast to Additional Protocol I, the Convention for the Elimination of Mercenaries in Africa prohibits both mercenaries and mercenarism, which is considered a crime against peace and security in Africa regardless of whether committed by an individual, a group, an association, a state, or a state representative. Adopted by the Organization of African Unity (OAU) in 1977, the Convention, which came into force in 1985, defines the crime of mercenarism as "the attempt by an individual to enroll, or his enlistment or enrollment as a mercenary; the employment or support of mercenaries in any way; and when a State allows mercenary activities to be carried out within its territory or in any place under its control while intending to overthrow or undermine the constitutional order or territorial integrity of another State." Substantively, the definition of a mercenary contained in the OAU Convention differs little from that of Article 47 of Additional Protocol I. The OAU Convention is significant in that it creates a specific offense of mercenarism and contains a series of corresponding obligations, including the adoption of measures to eradicate mercenary activities, and the prosecution or extradition of those committing an offense under the Convention. Additionally, state representatives may be punished if a state accused of involvement in mercenary activities is brought before any competent OAU or international tribunal and is found to have breached the Convention. Whereas Additional Protocol I is internationally recognized, the OAU Convention is regional in scope, as it is only applicable to states in the African region that have completed the ratification process.

The International Convention Against the Recruitment, Use, Financing and Training of Mercenaries was adopted in 1989 and came into force on October 20, 2001. Its international scope is similar to that of Additional Protocol I, but the International Convention expands the definition of mercenary to cover situations other than armed conflict by including situations in which individuals are recruited to participate in a concerted act of violence for the purpose of overthrowing a government or undermining the constitutional order of a state, or infringing on the territorial integrity of a state. The International Convention identifies specific offenses, including the recruitment, use, financing, or training of mercenaries, or the attempt to do so. It also criminalizes the accomplice of any person who either commits or attempts to commit an offense cited in the Convention, regardless of whether the mercenaries in question have taken part in the concerted act of violence. States are obliged to refrain from taking part in any of the activities designated in the Convention and to prevent such activities by others through the adoption of appropriate measures. The prosecution of offenders at the national level is also set out within a framework established by the Convention. Although the International Convention is a binding instrument of international law, it lacks widespread ratification.

Generally, efforts to deal with the mercenary phenomenon, whether regionally or internationally, have met with little success. The various instruments lend themselves to different and sometimes contradictory interpretations, and a number of legal inadequacies and gaps make it difficult to accurately classify the act of mercenarism and identify those who commit it. According to United Nations (UN) Special Rapporteur Enrique Bernales Ballesteros, questions to which there are no definitive answers include the following: What is the status of foreigners who, following their entry into a country, acquires its nationality in order to cover up the fact that they are mercenaries in the service of either a third state or the other side in an armed conflict? What is the status of a nonresident national paid by a third state to undertake criminal activities against his or her own country of origin? What is the status of those with dual nationalities—one of them being that of the state against which they are carrying out criminal activities—who are paid either by the state of their other nationality or a third party? What are the limits of jus sanguinis, a right by which nationality or citizenship may be conferred to any person born to a parent who is a national or citizen of that state? In particular, what are the limits of jus sanguinis in armed conflict when those paid and sent to fight in the country of their ancestors invoke this right in either a domestic or international armed conflict? The definition of a mercenary contained in Article 47, although failing to address these questions, is almost literally repeated in the definitions adopted in both the OAU and International Conventions. According to the Special Rapporteur, "The relevant international legal instruments are but imperfect tools for dealing with the issue of mercenaries." Furthermore, these definitions fail to address recent changes that have taken place in mercenary activities.

The New Mercenaries

International restructuring and transition following the end of the cold war have revealed the need for alternative security measures in the absence of superpower support. This security vacuum includes, for example, the resurgence of extreme nationalism and separatism and ethnic and religious intolerance, and the inability of smaller states to contain internal security threats. The post–cold war period has thus witnessed the emergence of new categories of mercenaries and mercenary activities. Mercenary activities have increased and diversified in both theory and practice, and are no longer predominantly confined to the African continent. For example, mercenaries were used in wars that took place within the territory of the former Yugoslavia and in wars that affected some states having emerged from the former Union of Soviet Socialist Republics. They were also used in long-term conflicts, such as that in Colombia, and in attempts to destabilize political regimes, including Fidel Castro's communist government in Cuba. The modernization of mercenary activities has significantly altered mercenary practice, which has taken on complex and multifaceted forms in a variety of situations and contexts.

In the 1990s private security companies specializing in military services supplemented the use of traditional mercenaries. Groups of professionals have partially replaced the relatively small number of individuals that dominated the mercenary scene between the 1960s and 1980s. Such companies existed prior to the end of the cold war, including the condottieri and Grandes Compagnies of the Middle Ages and Renaissance period. Similar to their predecessors, private security companies contract their soldiers out to foreign entities, but have adapted to the needs and structure of the post–cold war world. Operational methods now include the offer of security services and military advice and assistance on the international market in return for money, as well as mining and energy concessions. The Special Rapporteur notes that private companies offering military, consultancy, and security services are now established on all five continents, and that some of these companies have recently obtained contracts worth tens of millions of United States dollars. Unlike traditional mercenaries, who are mostly covert in nature, private security companies are registered corporate companies. According to the Special Rapporteur, they are generally part of corporate holding companies and subsidiaries and take part in various services through other companies, including transport, communications, economic and financial consultancy, and health and sanitation services. In addition to sovereign governments and government entities, clients range from international organizations, foreign embassies, and nongovernmental organizations (NGOs) to multinational corporations that are usually involved in oil and exploration and mineral prospecting. The Special Rapporteur also notes that some of these private security companies provide training to combat forces or pilots for troop transport, offer specialized technical services, and on occasion actively participate in combat situations.

Some of the most important private security companies include Executive Outcomes (now disbanded), Military Professional Resource Institute, Defense Systems Ltd., and Sandline International. In April 1995 Executive Outcomes was hired by the government of Sierra Leone to confront the threat from a rebel army, the Revolutionary United Front (RUF). Executive Outcomes prompted the RUF to negotiate a peace settlement in November 1996, after having destroyed the rebels' headquarters in the southeastern part of the country. The success of Executive Outcomes in Sierra Leone, however, may be contrasted with the fact that it provided a temporary, short-term solution to the conflict. Once the company had withdrawn from this West African country in January 1997, the peace agreement disintegrated and violence erupted once again. According to the Special Rapporteur, the right to life, security, and peace, including the preservation of both the rule of law and democracy, are not matters that can be entrusted to private security companies. One of the most controversial aspects of this issue includes the claim that security companies operate legally because they sign their contracts with legitimate governments. However, according to the Special Rapporteur, responsibility for the internal order and security of a sovereign state lies with the state itself; it can neither transfer nor renounce these responsibilities. Despite the fact that in recent years security has been partially privatized and the state now shares this function, a number of limits should not be exceeded. According to the Special Rapporteur, companies should not actively participate in armed conflicts or recruit and hire mercenaries. Additionally, the state should retain the right to protect external borders or maintain public order. In short, companies should not attempt to replace the state in defending national sovereignty.

Moreover, the premise underlying the claim that security companies fill a critical void in offering an alternative security model cannot be confused with the effectiveness of the services offered and the nature of the acts that they carry out, according to the Special Rapporteur. For example, some activities conducted by mercenaries and the hiring of this type of professional services extend to other illicit activities, including arms trafficking, drug trafficking, terrorism, attempts to destabilize legitimate governments, and acts to take forcible control of valuable natural resources. According to the Special Rapporteur, the involvement of mercenaries in other criminal activities has also led to their participation in the commission of serious violations of human rights and of international humanitarian law. The concern thus lies with companies offering military security services on the international market that recruit, hire, and use mercenaries and the instances when these companies become involved in armed conflict.

The restrictive approach adopted by the UN in linking mercenaries with concerted acts of violence aimed at violating the right of peoples to self-determination and undermining the constitutional order of a state or its territorial integrity, while seeking substantial personal gain and material compensation, is such that private security companies, as presently constituted, do not fall within this definition. Although they do have some mercenary traits, the personnel that work for private military, advisory, training, and security companies, and the contracts concluded between such companies and states, cannot be described as completely mercenary, according to the Special Rapporteur. Loopholes encountered in the definition of mercenaries led the General Assembly to request, in December 1999, that the United Nations High Commissioner for Human Rights convene several expert meetings to study the current forms of mercenary activities and to propose recommendations for an updated legal definition that would provide a more effective prevention mechanism for and punishment of mercenary activities. This the Office of the High Commissioner did at two meetings where amendments to the 1989 International Convention were proposed.

Experts from various regions attending the first meeting in 2001 recommended that the review of the legal definition include the elements of motive, purpose, payment, type of action, and nationality, with particular attention given to the purpose for which a mercenary is hired. In relation to private security and military companies, the group of experts recommended that states introduce specific laws and regulations prohibiting these companies from participating in armed conflicts, creating private armies, engaging in illicit arms trafficking, recruiting mercenaries, and partaking in the illegal extraction of natural resources. Efficient firms offering a widespread range of services do exist, according to the experts. Opposition to such firms offering their services on the international market lies in their participation in armed conflicts through mercenary groups forming private armies, rather than in their operation per se or the private nature of such companies.

At the second meeting held in 2002, the experts analyzed issues concerning recent events related to mercenary activities, the mandate of the Special Rapporteur, the criminalization or penalization of mercenary activities, the definition of mercenary, state responsibility for mercenary activities, the relationship between terrorism and mercenary activities, and the regulation of private security companies that offer military assistance and consultancy services. In particular, analysis focused on the definition of mercenary, including aspects related to the legal framework within which the question arises and the difficulties in taking into consideration the various forms of mercenary activities. The experts did not, however, reach a consensus regarding the legal definition of mercenary, most notably with regard to the constituent elements, international treatment of the mercenary question, and identifying the nature of mercenary activity that required criminalization from activities which already constitute crimes under international law.

The Special Rapporteur has considered these elements in his own formulation of a new legal definition for a mercenary in his report to the United Nations General Assembly in its fifty-eighth session. In its resolution on the use of mercenaries as a means of violating human rights and impending the exercise of the right of peoples to self-determination, the General Assembly noted with appreciation the proposal of a legal definition of mercenaries by the Special Rapporteur, and requested that the Secretary-General seek member states' comments to include them in the report of the Special Rapporteur to the General Assembly. It also requested that the Special Rapporteur include specific recommendations to the General Assembly in its fifty-ninth session.

In his final report submitted to the United Nations Commission on Human Rights, the Special Rapporteur recommends that the Commission support the decision to circulate among states his new proposal, which consists of amendments to the first three articles of the 1989 Convention Against the Recruitment, Use, Financing, and Training of Mercenaries. The alternative definition covers unlawful acts, including the following: trafficking in persons, arms, and drug trafficking and other illicit trafficking, terrorism, transnational organized crime, actions to destabilize legitimate governments, and actions aimed at taking forcible control of valuable national resources. It also considers that mercenaries who directly participate in the commission of the crime be criminally responsible, and extends criminal liability to those who recruit, finance, employ, or train mercenaries to participate in criminal activities. Rather than limiting itself to the mercenary as an individual agent, the proposed definition includes mercenarism as a concept related to the responsibility of the state and to other organizations and individuals. The alternative definition also considers the participation of mercenaries in international and internal armed conflict, as well as concerted acts of violence. Given both that the definition of mercenary contained in Article 1 of the 1989 International Convention is difficult to apply in practice, and the consensus that a new definition should be established, the Special Rapporteur believes that the definition must be modified by amending the International Convention if mercenary activities are to be prevented, eradicated, and punished.

According to the Special Rapporteur, the amendment should be debated and approved within the existing text of the International Convention, without prejudice to Article 47 of Additional Protocol I to the 1949 Geneva Conventions. He also makes a number of suggestions, including the fact that domestic and international law must clearly differentiate between military consultancy services on the international market from participation in armed conflict, and from activities that could be conceived as intervention in matters of public order and security that are the exclusive responsibility of the state. Such companies should be regulated and placed under international supervision, according to the Special Rapporteur. He also suggests the refining of legal instruments that allow the effective legal prosecution of both the mercenary and the company that hires and employs him. The various United Nations bodies and regional organizations that combat the presence and use of mercenaries must also be strengthened, and should include the link between mercenaries and terrorism, and their participation in organized crime and illegal trafficking.

The Special Rapporteur also states in his formulation of a proposal that mercenary activity must be considered a crime in and of itself and must therefore be internationally prosecutable. According to the Special Rapporteur, states are not authorized to recruit and employ mercenaries, and must be punished if they use mercenaries to attack another state or to commit unlawful acts against persons. A factor that should also be taken into account is that existing norms of international law and customary international law referring to mercenaries and their activities condemn mercenary acts in the general sense of paid military services that often lead to the commission of war crimes and human rights violations, because such services are not subject to humanitarian norms applicable in armed conflict. The Special Rapporteur also states that the foreign nationality requirement be reviewed in order for the definition to rest primarily on the nature and purpose of the illicit act with which an agent is connected by means of monetary gain.

SEE ALSO Humanitarian Law; Sierra Leone

BIBLIOGRAPHY

Major, M.-F. (1992). "Mercenaries and International Law." Georgia Journal of International and Comparative Law 22:103–150.

Musah, A.-F., and J. K. Fayemi, eds. (2000). Mercenaries: An African Security Dilemma. London: Pluto Press.

Nossal, K. R. (1998). "Roland Goes Corporate: Mercenaries and Transnational Security Corporations in the Post–Cold War Era." Civil Wars 1:16–35.

Peter, C. M. (1984). "Mercenaries and International Humanitarian Law." Indian Journal of International Law 24:373–392.

Zarate, J. C. (1998). "The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder." Stanford Journal of International Law 34:75–162.

ORGANIZATION PUBLICATIONS

Gaultier, L., et al. (2001). The Mercenary Issue at the UN Commission on Human Rights: The Need for a New Approach. London: International Alert.

United Nations Commission on Human Rights (2002). The Impact of Mercenary Activities on the Right of Peoples to Self-Determination. Fact Sheet No. 28. New York: United Nations.

INTERNATIONAL INSTRUMENTS

Convention Relative to the Protection of Civilian Persons in Time of War (August 12, 1949). 6 UST 3516, 75 UNTS 287.

Convention Relative to the Treatment of Prisoners of War (August 12, 1949). 6 UST 3316, 75 UNTS 135.

Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1910). Hague Convention No. V, Regulations Concerning the Laws and Customs of Land War, 3 Martens (3rd) 461, 2 AJIL Supplement 20 TS 9.

International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989). ATSD 3714.

Protocol Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977). 1125 UNTS 3, reprinted in 16 ILM at 1391.

Protocol Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977). 1125 UNTS 606, reprinted in 16 ILM at 1142.

REGIONAL INSTRUMENT

OAU Convention for the Elimination of Mercenaries in Africa (1972). OAU Document CM/433/Rev.L, Annex 1.

REPORTS OF THE SPECIAL RAPPORTEUR

Bernales Ballesteros, Enrique (February 20, 1997). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/1997/24.

Bernales Ballesteros, Enrique (October 16, 1997). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document A/52/495.

Bernales Ballesteros, Enrique (January 13, 1999). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/1999/11.

Bernales Ballesteros, Enrique (August 30, 2000). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document A/55/334.

Bernales Ballesteros, Enrique (January 11, 2001). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/2001/19.

Bernales Ballesteros, Enrique (February 14, 2001). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/2001/18.

Bernales Ballesteros, Enrique (July 27, 2001). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document A/56/224.

Bernales Ballesteros, Enrique (January 10, 2002). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/2002/20.

Bernales Ballesteros, Enrique (November 29, 2002). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document E/CN.4/2003/16.

Bernales Ballesteros, Enrique (July 2, 2003). Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-Determination. UN Document A/58/115.

Natalie Wagner

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