We're Not Mercenaries. Oh, Dear

For many years those in the private security contracting industry have argued loudly that the people who carry guns in the field are not mercenaries. And they are exactly right, as I have noted many times in the past.

Words do have specific meaning and when it comes to meaning, the most precise and globally recognized meaning is embodied in three international treaties, namely the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (hereinafter Additional Protocol I); the 1977 Organization of African Unity Convention for the Elimination of Mercenarism in Africa (hereinafter OAU Convention); and the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (hereinafter U.N. Convention).

With regard to Additional Protocol I, Article 47, para. 2, lists six cumulative conditions for a person to be considered a mercenary. It proclaims:

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.

This is such a high hurdle to pass that it is widely recognized that any first-year law student should be able to get off any contractors accused of being a mercenary. Of course, the fact that nobody in places like Afghanistan or Iraq has ever been charged with being a mercenary tells you that people recognize how difficult it would be prosecuting someone for being one.

But that still leaves some definitional pitfalls for security contractors. While what they do may not fulfill ALL of the conditions for the mercenary definition some do, or come very close.

To see what I mean consider this 2010 working paper, Private Military and Security Company Employees: Are They the Mercenaries of the Twenty-First Century? by Marina Mancini.

Security contractors will always emphasize they are not soldiers. They are there to protect clients, not engage in battles. In principle, armed security contractors may not participate in offensive operations. But from the viewpoint of whoever may be attacking them it makes little difference. Mancini writes:

Although armed security contractors are not recruited to conduct offensive operations, they fulfill the requirement of being recruited to fight in an armed conflict, if they are engaged to protect military objectives (e.g. ammunition trucks or military depots), which as such may be lawfully targeted by the enemy. Evidently, armed reaction to enemy attack constitutes fight. In this regard, it has been correctly stressed that 'the phrase "to fight" under international humanitarian law is not synonymous with an offensive attack'.44 The nature of the act of violence, offensive or defensive, is irrelevant. What matters is the subject against which it is committed. Only acts of violence against enemy forces constitute "attacks" within the meaning of Article 49, para. 1, of Additional Protocol I. According to this provision, "'attacks' means acts of violence against the adversary, whether in offense or in defense." Consequently, armed security contractors could not be considered as recruited to fight in an armed conflict if they were hired to protect military objectives against common criminals.45 However, it is unthinkable that, in a situation of armed conflict, those protecting a military objective may be ordered to react only if the attack comes from common criminals. Besides, it may be very difficult to discern the nature of the aggressor on the spot.

Furthermore, acting defensively does not exclude a contractor from having participated in combat operations.

Engaging in defensive combat also constitutes direct participation in hostilities. As has been rightly pointed out, 'international humanitarian law does not draw a distinction between offensive or defensive operations'.58 As a matter of fact, the ICRC interpretive guidance regards 'the defence of military personnel and other military objectives against enemy attacks' as direct participation in hostilities (commentary on recommendation III).59 Several instances of defensive combat involving security contractors in Iraq and Afghanistan have been reported. As regards Iraq, a well-known episode occurred in Najaf on 4 April 2004. Blackwater employees tasked with the protection of the Coalition Provisional Authority headquarters in Najaf repulsed an attack by hundreds of Shiite militia members. The combat lasted about three and a half hours. Blackwater's helicopters had to resupply the employees with ammunition. In order to repel the attack, thousands of rounds and hundreds of grenades were expended.60