(2) The requirement that mercenaries participate directly in hostilities, as required by subparagraph (b), would exclude persons acting as foreign military advisers and technicians. Most security companies, such as the Military Professional Resources Incorporated (MPRI) of the United States, exclude themselves from the definition of mercenary on this basis. 41The problem of definition is clearly linked to the political problems linked to the reluctance of States to exclude the use of mercenaries. The result of this restraint has led to tensions between African states in particular and the West, Europe in particular. While African leaders have been the driving force behind the development of international law regarding mercenaries, the West remains cautious. These tensions are reflected in the definition of Additional Protocol No. 1. Indeed, where OECD countries consider criminal responsibility to arise from the performance of certain acts of war, most countries have sought to incorporate the idea of status solely as a criminal act, thus creating a broader definition. Attempts to resolve these tensions are proving difficult. 27Since 1989, when the Convention against the Recruitment, Use, Financing and Training of Mercenaries was signed, the United Nations General Assembly has consistently adopted resolutions on the activities of mercenaries.
As explained above, these resolutions have generally reflected the limited nature of the prohibition on the use of mercenaries, as well as the traditional concerns expressed by the international community about the activities of individuals engaged in mercenary activities,48 while addressing the actions of mercenaries in various circumstances. These include the destabilization of neighbouring States, the vanguard of a coup d`état in a small State, the obstruction of national liberation movements in their quest for independence and the violation of human rights.  The purpose of these resolutions is to emphasize that the actions of mercenaries violate fundamental principles of international law, including non-interference in the internal affairs of states, territorial integrity and independence.50 This type of mercenary is described by Marie-France Major as “an unlawful international act”.51 3This article examines the legal problems caused by the recent emergence of private military companies in international security. The first part of the article traces the legal argument associated with the use of mercenaries. In particular, the paper examines the complexity of conventions that attempt to establish a clear definition of mercenaries. It shows how the current definition of mercenaries, which served a political purpose during the period of decolonization and continues to do so today, makes it extremely easy for the private security industry to exploit loopholes in international law that allow it to offer its services to responsible leaders of failed States. The paper then explores the argument surrounding the extent of the government`s responsibility to prohibit its citizens from engaging in mercenary activities. More recently, Governments, particularly in Africa, have sought to include individual criminal responsibility and State responsibility in conventions in order to allow a person to be prosecuted only as a mercenary, as well as for illegal acts committed while fighting as a mercenary. Addressing these issues in international law will take time, especially since key political leaders do not know in which direction the use of military force will go in the future. Until then, they are unlikely to act to improve or restrict this part of the private security market.3 Nisour and Haditha were comparable crimes, but the reaction could not have been more different: mercenaries are butchers, while soldiers (or Marines) make innocent mistakes. This is an irrational prejudice. A murder is murder, regardless of the type of fighter pulling the trigger.
Experts justify this bias with Niccolò Machiavelli (1469-1527), a high official of the Florentine Republic and author of the prince. He despised mercenaries as “divided, ambitious, undisciplined, unfaithful; gallant among friends, vile among enemies; no fear of God, no faith in men. 8 This judgment has ossified in orthodoxy. The Peace of Westphalia also changed a lot. All the major continental powers were involved in this peace agreement, which redrew the map of Europe and rewrote the rules of power. Previously, Europe was governed by medieval rules, that is, by no rules. Things were chaotic. All sorts of political actors – popes, kings, city-states, wealthy families and others – have claimed authority over the same lands and serfs. Disputes inevitably erupted and were settled on the battlefield, often by mercenaries on both sides.
Anyone who recruits, deploys, finances or trains mercenaries within the meaning of article 1 of this Convention commits an offence within the meaning of the Convention. The privatization of war distorts war in shocking ways. When conflicts become commodities, the logic of the market and the strategies of the souk apply to war. A souk is an open Arab market, and that`s a good analogy for how private wars work. In a souk, everything is for sale and must be exchanged. Anything goes. Fraud, deception, deception and difficult negotiations are the watchwords. But also value, rare finds and exotic goods. Treasures are available and cheap – if you know what you`re doing. If not, expect to be scammed; This unregulated space is not for amateurs.
There are no refunds, returns or exchanges. Only street-savvy shoppers should get involved and the best advice is also the oldest: caveat emptor, Latin for “let the buyer be careful”. In the context of war, the consequences are serious, as Machiavelli warns. Any person prosecuted for any of the offences set forth in this Convention shall be guaranteed fair treatment at all stages of the proceedings and all the rights and guarantees provided for by the law of the State concerned. Existing norms of international law should be taken into account. […] Four hours later, the mercenaries finally withdrew. Four hours. No Americans were killed, and the Department of Defense (DOD) touted it as a great victory. The elite American troops and advanced planes took 4 hours to repel 500 mercenaries. What if they have to deal with 1,000? 5,000? More? There are two ways to find work as an undercover mercenary. When you make a deal with a client and launch a deal, you first recruit by tapping into your network.
Mercenaries form informal networks based on a common military past, contacts, cultural identity, language, etc. There are now five major mercenary networks: the United States, the United Kingdom, the former Soviet republics, Latin American special forces and the Executive Outcomes network “Alumnae” in Africa. China has a small market share, but could dominate the industry if it becomes an active network. In truth, the distance between declared actors and undercover actors is minimal: if you can do one, then you can do the other. The qualifications are similar and the permanent staff interchangeable. The main difference between them is the type of contract and market conditions. Today`s mercenaries offer a wealth of skills, but they all offer a few basic services: How did we get here? Certainly, the world`s only superpower does not need leased weapons. It has it all: the best troops, training, technology, equipment and resources. But he doesn`t have the will, and that`s why he turns to military contractors. Outsourcing allows bloodless wars, at least from the customer`s point of view. Like super technology, mercenaries are a crutch for a nation that wants to fight but doesn`t want to bleed. This did not happen intentionally, but rather by chance.
There has been an unexpected collision between U.S. domestic politics and the purely voluntary military, a source of national pride. When the U.S. entered the wars in Iraq and Afghanistan, the White House assumed they would be brief conflicts. “Five days, five weeks or five months, but it certainly won`t take any longer,” Defense Secretary Donald Rumsfeld said on the eve of the Iraq war. The U.S. military can “get the job done and finish it quickly.” 25 More than a decade later, America is still entangled in both places, unwilling to admit defeat but unable to claim victory. 40Those who oppose this argument point to the political agenda of those who describe PMCs as nothing more than corporate mercenaries. This is especially true for armed forces that see themselves as victims of PMC success, whether they themselves are legitimately recognized by their own people or not.
Ultimately, it is up to the conscience of the individual, influenced by his or her own political convictions and values, to decide whether a person charged with providing military support to a foreign army is a mercenary, a volunteer or a security adviser. Finally, on the issue of PMC regulation, the alternative is to control it through regulation when the international community is uncertain as to whether PMC actions should be made illegal. Fifth, the weak implementation of treaties and look-alikes is the bane of private warfare. When mercenaries and their masters have a dispute, there are no courts that can sue for breach of contract. Instead, things are ruled by blood and betrayal.