The Rights of Mercenaries as Prisoners of War

• Author: Captain John Robert Cotton
• Pages: 04

1. INTRODUCTIOX

   In June 19i6 thirteen meicenaries aho had been captured while participating in the cirii war in Angola were placed on trial. The tribunal trying them assumed that the mercenaries were var mimi-wale, and proceeded to determine an appropriate sentence for each individual. Three of the mercenaries were sentenced to death anil were eubsequentl) executed.' These and other recent events have raised significant questions about the nay captured mercenaries are to be treated under international

   ResoiLing the present confusion concerning the treatment to be accorded mercenaries has become increasingly necessary, if onl) because mercenaries' involvement in unconventional wars and ' ' ~ v ~ P s of national liberation" has proliferated since World War I1 These ill-defined conflicts often take place againat a backdrop of extreme political instability, anil are accompanied by revolutionary rhetoric disclaiming allegiance to the norms traditionally applied during armed conflict^.^ Wirh this combination of elements. the risk that

   " The oplniars and eancluiioai prererted I" this article are thole of the author and do not meersiarl!? repreiert the views of The J u d p idiocare GenersYr School or

   combatants captured in such conflicts iiill be mistreated 15 much greater than in conventional \\us

   The primary mles of international I

   This comment seeks to define the term "mercenary" and looks at the historical role of the mercenary and his treatment uhen taken prisoner during a conflict. It will analyze how mereeiiariee are to be t Genera Convention and zill determine hoiv the United Nations, certain individual governments, and the Diplomatic Conference an the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts propose that mercenaries be treated in future conflicts. Final!!, the note will propose recommendations on how the law should be clarified and expanded to cope with problems peculiar to mer-cenaries.

   11. BHO ARE XERCESARIES?

   One of the major problems involved iiith an? d cenaries is defining ehactly what a rnercenar? IS.

   comes especially importanr when determining ii he

   qualify for protection under the Third Genera Convention. Because vwy little has been witten about confusion has re-sulted mer what rights belligerents must accord such combatants and what duties the mercenaries' natire states hare to protect them.'"

   .i

   mercenary has been rariaualj characterized as: 1. One who serves merely for ivages." 2. A soldier serving in the arm? of a countr) other than his OWII.'~

   Into farelg" Serme.'3.

   Sone of these definitions is entirel? adequate for the purposes of analyzing who mercenaries are ani1 how the? should be tieared when they are captured. i s iwith any label used in toda!'' multi-

   "

   1s subject to various mteipretaits meaning is complicated by smen moral o~e~.tones.'~

   Thus. several que swereil in or~lei IO reach a atanterm "mercenar)."

   First, must a mercenary be a foreigner? If this criterion is a p r e ~ requisite, may the soldiers of a former colonial poatr be deemed to be foreigners? Historically. those categorized as mercenaries hare aliiays been of a different nationalit! than their hosts A problem arises, howerer, when an ~niliriilual. for some reason, feels himselfto be a member of a "~eo~le"which is oarticioatine in an armed

   distinctions in nationality in separatist struggles n here a geagiaphic or ethnic subgroup attempt; to break away from a mother countr? (7 e , Ukrainians from the U.S.S.R.) 01 hhere a colon! seeks to secure ita independence from ethnically distinct rleicenrl-ante of ealanizera who nonetheless share common nativity uith rhe

   Perhapr in light of these analytical difficulties. the

   eensriei should be f be B eeneral eonie De\ e1opment or 1nte that mercenaries are

   on& viable test for determining who is "foreign" ij a determination of how the contracting party nea-ed the status of the hired soldier at the time of contract.

   A related ISSUP 1s the determination of the parti- to irhom the allegiance Although he mas be a national of a neutral aith respect to the conflict in ahich he is first duty is to the state with which he has contracted "

   Secondly. must mercenaries be valunteerc? This question appears simple, and should be ansirered in the afflrmatire Honever, the question becomes more complex when 11 involves individuals u ho hare been coerced by their government into "volunteering." Is As volunteers, mercenaries zhould be free to contract to serve fox any set period of time, or far no specified period. Thus the! should be able to teiminat? then employment at a specified time, or at will, depending upon the agreement.1e

   Thirii, must nier~eiiaiies be paid ai a higher rate than indigenous tian arises because moat view mercenaries as mdii promises of high pay; indeed, the term "soldier aidered by many to be synonomoue iiith the term fact, rnercenaiiei need not be highly paid profeaA mercenary may fight for an? compensation he de. there is no requirement that B mercenary be

   am *ere not rrerre

   n8 the Frereh Fore

   m e foupht a i mereeiariea in Spain during the Spanish C i w Rar

   for :he iaaee, for lift P or PO cmpensarion Borrhnrd. s u p w note

   paid more than a regular soldier of comparable tank 111 the army for which he is

   The fourth and final queition is whether a mercenary ma)- fill only specified roles for his employer. Hietoncall), mercenaries have fought in separate units, as individuals, and as leaders anti men in native units.2J In addition, they have performed many functions both on and off the battlefielrl, serving as combatants, aciriiors and guarrls 24 In short, the particular militaq role the mercenari fills 16 melevant to his status ae a mercenary.

   At the eoiicl~sion of a conflict. mercenaries serring aith the "ICtonous faction are "heroes," \$ hile those captured during hoerilities or after the defeat of their ann? are iubject to punishment ~n their

   This definition is certainly not free of all problems and ambiguities, but it wili aid in determining ahar posture the international cammunity should take towards mercenaries.

   111. HISTORICAL BACKGROUSD

   1. TREATMEST OF .MERCE,VARIES ASD

      POWs PRIOR TO 1900

      The historical background of the concepts "mercenary" and "pria-mer of war'' must he...