MILITARY LAW REVIEW
Volume 176 June 2003
OVERCOMING POST-COLONIAL MYOPIA: A CALL TO RECOGNIZE AND REGULATE PRIVATE MILITARY
MAJOR TODD S. MILLIARD1
These, in the day when heaven was falling,
The hour when earth's foundations fled,
Followed their mercenary calling
And took their wages and are dead.
Their shoulders held the sky suspended;
They stood, and earth's foundations stay; What God abandoned these defended,
And saved the sum of things for pay.2
The sovereign's resort to mercenaries is as old as history itself. Ramses II led an army composed largely of Numidian mercenaries in the Battle for Kadesh in 1294 B.C.,3 and King David used mercenaries to drive the Philistines from Israel in 1000 B.C.4 From 800 to 400 B.C., mercenaries played a relatively minor role in the Greek hoplite armies,5 but by the time Alexander the Great crossed the Hellespont to invade Persia in 334 B.C., specialized mercenaries comprised almost one third of his army.6 In 50 B.C., Caesar relied almost entirely on mercenaries for his cavalry,7 and 600 years later, many of the feoderati of Justinian's East Roman Army were mercenaries.8 Mercenary use continued unabated by William's army during the Norman Conquest,9 by Renaissance Italian city-states with their condottieri,10 and by Britain who resorted to Hessian mercenaries to fight American colonists during the Revolutionary War.11 Indeed, the sovereign's use of mercenaries predates the national armies that arose only after
the Treaty of Westphalia.12 Despite the recent success of modern standing armies, however, the mercenary and the sovereign's resort to his services endures.
In the twentieth century's latter half, international law attempted to limit states' practice and individuals' conduct regarding mercenary activities. Regulation of state practice concerned primarily states' recruitment and use of mercenaries for intervention against "foreign"13 self-determination movements, raising questions of the jus ad bellum. Regulation of individual mercenaries concerned their status and conduct during foreign conflicts, raising questions of the jus in bello. Oftentimes, the drafters of international legal provisions affecting mercenaries confused the principles of jus ad bellum and jus in bello, thereby producing questionable and
ultimately tenuous attempts at international regulation.14 More often, the drafters struggled to define adequately the ancient profession.15
An underlying political component further complicated the mercenary issue. This pit First World, former colonial powers wherein most mercenaries originated against Third World, post-colonial African powers that undoubtedly bore the brunt-and occasional benefit-of twentieth century mercenary activities.16 The Cold War's ideological divisions only exacerbated the political taint expressed in the debate and resulting international provisions aimed at mercenaries.17 Unfortunately, the first attempts at mercenary regulation focused on eliminating but one type of mercenary, the indiscriminate hired gun who ran roughshod over African self-determination movements in the post-colonial period from 1960 to 1980.18 As mercenaries evolved, however, mercenary regulations did not.
The focus on post-colonial mercenary activity continued as attempts at mercenary regulation progressed from aspirational declarations by the United Nations (UN)19 and Organization of African Unity (OAU)20 in the
1960s; to defining and discouraging individual mercenaries in Article 47 of Protocol I in 1977;21 to articulating states' responsibilities in regards to mercenary activities when the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries (UN Mercenary Convention) finally entered into force in 2001.22 As a result, today's international provisions aimed at mercenary regulation suffer from myopic analyses23 because, in law and fact, they are still directed at controlling post-colonial mercenary activities in Africa. This flawed approach ignores mercenaries' long history,24 their modern transformation into sophisticated private military companies (PMCs), and their increasing use by-not against-sovereign states engaged in the legitimate exercise of procuring foreign military services.
This article first presents a brief historical overview of mercenary activities. The primary analysis section then demonstrates that existing international law provisions were designed to regulate only one type of mercenary, the unaffiliated individual that acted counter to the interests of post-colonial African states. The article next summarizes the limited liability imposed by existing international provisions upon unaffiliated individuals, state actors, and states themselves. Concluding that these provisions are altogether inadequate to reach modern PMC activities, the article's final section proposes a draft international convention and accompanying domestic safeguards that will serve to recognize and regulate state-sanctioned PMCs, while further marginalizing the unaffiliated me
cenary whose violence offends international law because it is exercised without state authority.
A. Mercenaries in History
National armies with professional soldiers allegiant to their nation-state represent a surprisingly new phenomenon. Prior to the French Revolution, no dishonor followed the man who fought under a flag not his own.25 Instead, leaders often turned to private soldiers during times of military necessity, and these men were equally willing to soldier for pay on someone else's behalf.26 The oldest use of the term mercenary referred to a "hireling,"27 and today the Oxford English Dictionary defines the term simply as "a professional soldier serving a foreign power."28 Legal commentators typically merge these two ideas, describing the mercenary as someone who provides military services to a foreign power for some compensation.29 From this premise, one might conclude that a mercenary will result only when three fundamental conditions occur: war or prospective war, a person or group willing to pay a foreigner to satisfy their domestic military needs, and an individual "willing to risk his life for a livelihood in a cause that means nothing to him."30
Not until the Franco-German War of 1870 did the "nation-in-arms" concept gain predominance in the world's militaries.31 As Griffith observed, "[I]t is only comparatively recently that whole nations have been cajoled and coerced into arms."32 Mockler explained more delicately,
"The idea, now so widely accepted that a man can be obliged to fight for his country could only be accepted when a man had a country that was more than a geographical expression to fight for."33 This is not to imply that mercenaries fighting for selfish purposes were widely revered before the advent of the modern army built on national loyalties. Even in ancient Greece, contemporary opinion held that having the polis pay for mercenaries was an "unmitigated evil."34 They were tacitly accepted before the twentieth century, however, if not by polite society,35 then by most states, their armies, and international law.36
Mockler separated the historical mercenaries into four classes: (1) the lone adventurer who often appears, but seldom exerts much influence in a single conflict; (2) the elite guards with which heads of state have always surrounded themselves, like the Swiss Guards and their modern-day descendants, the Papal Guards; (3) the bands of professional soldiers, temporarily united, that "reappear . . . in one form or another throughout history; usually at a time of the breakdown of empires, or political anarchy, and of civil war";37 and (4) the "semi-mercenaries" who make up a "respectable element hired out by major military powers to minor allies or client states."38 The second category's close affiliation with the sovereign's authority explains their widespread international acceptance, whether the highly capable Swiss mercenaries of the sixteenth century who were organized into the Swiss Guards,39 the fierce Nepalese Gurkhas who once defeated and were later incorporated into British regiments,40 or the displaced men of the French Foreign Legion who were organized for service "outside of France."41 The first and third categories continue to gen-
erate great controversy, most likely because they lack the second category's sovereign imprimatur. The fourth category, which encompasses many PMCs, rests somewhere in between.
B. The Rise of the Private Military Companies
Private military companies take on many labels today, including, among others, mercenary firms, private armies, privatized armies, private military corporations, private security companies or firms, private military contractors, military service providers, non-lethal service providers, and corporate security firms. Their corporate model can be traced to Harold Hardraade's Norse mercenaries, first offered in support of the Byzantine Empire in 1032.42 This group went on to form the mercenary Varangian Guard, whose Norse-Russian members became the most important component of the Byzantine army for the next 200 years.43 By 1300, Byzantium hired Roger de Flor's small army of Catalan mercenaries,44 known as the Grand Catalan Company, which was the first and longest-lived of the medieval "free companies."45 For the next 150 years, other mercenary free companies arose and flourished in post-feudal Europe.46
Like the free companies, similar corporate characteristics were found in the English Company of the Staple and Merchant Adventurers, first ascendant in 1354,47 whose members rivaled the English nobility in wealth
and influence until their demise in the late sixteenth century.48 The free companies themselves were transformed in the fifteenth century.
The French solution to the problem of free companies . . . was to establish a standing army. . . . These companies [of the...