Hyder Gulam
U.N. declared that every state had the duty to prevent the organization of armed groups for incursion into other countries. The 1970 Declaration represented an important transition in international law, as mercenaries became ‘outlaws’. However, it still placed the burden of enforcement exclusively on state regimes, failing to take into account that they were often unwilling, unable, or just uninterested in the task.24 Additional Protocol 1: The 1977 First Additional Protocol to the Geneva Conventions did not legislate against mercenary activity, but rather acknowledged the existence and practice of such persons within warfare and sought to define their legal status and codify their standing within the context of international humanitarian law.25 The Additional Protocol contained two principle paragraphs: Paragraph 1: excluded the mercenary from the category and rights of recognised combatants and prisoners of war. Paragraph 2: defined the cumulative and concurrent requirements that must be met in order to determine who is a mercenary and who is not. Article 47 defined a mercenary as someone who: (a) is specifically recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take 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 the armed forces. It should be noted that this definition is cumulative, ie a mercenary is defined as someone to whom all of the above apply. A number of governments including the UK Government regarded this definition as unworkable for practical purposes. In particular it would be difficult to prove the motivation of someone accused of mercenary activities. Contracts could also be drafted so that those employed under them fell outside the definitions in the Protocol: for example, in its aborted contract with Papua New Guinea (1997), Sandline International’s employees were to be termed ‘Special Constables’ and thus not have been classified as mercenaries since (under (e) above) they would have been members of the armed forces of a party to the conflict. There are also cases of foreign nationals providing military services who have been granted or have applied for local citizenship with the effect that – under (d) above – they could not be described as mercenaries. 24
ibid at 527. Scott Goddard, ‘The Private Military Company: A legitimate international entity within modern conflict’, A thesis presented to the Faculty of the U.S. Army Command and General Staff College, Fort Leavenworth, Kansas 2001, p.32. 25
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The rise and rise of Private Military Companies