By Youngreen Peter Mudeyi*
There has been a great proliferation of private military companies (PMCs) with states increasingly hiring them to act in zones of warfare.[i] The increase in private military companies is largely due to weakened state and military structures and the rising number of conflict zones, prompting governments to seek cost-effective solutions from the private sector.[ii] Private military companies at times violate principles of international humanitarian law (IHL). This calls for the need to evaluate their status to know who will bear responsibility in cases of breach. This article seeks to examine whether private military companies fall into the category of mercenaries, combatants or civilians and if their employees can be accorded the status of prisoners of war once captured. It then establishes the kind of responsibility that the private military companies will bear depending on their categorisation.
Peter Singer categorises private military companies into three: one, military provider firms supplying direct and tactical military assistance which may include front line combating, two, those providing strategic advice and training and, three those that provide logistics, maintenance and, intelligence services to the armed forces.[iii] These three classifications will inform the categorisation and the party that will bear responsibility. The next question to explore is who is a mercenary and what category of the private military companies can be classified as mercenaries.
A mercenary is defined by a six throng test.[iv] The first is one who is specifically recruited locally or abroad to take part in an armed conflict. Second, a mercenary who actually takes part in the armed hostilities. Third, a mercenary who is motivated to take part in the armed hostilities with the desire of self-gain. Fourth, one who is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict. Fifth, a mercenary who is not a member of an armed force in the conflict, and lastly, one who is not sent by a state which is not a party to the conflict on official duty as a member of its armed forces.[v] For members of the private military companies to fall into the category of mercenaries, they need to meet all the six tests. This does not extend to employees who provide support and logistics as they are not considered to be taking part in direct hostilities.[vi] If they do meet the tests, they shall not have the right to be a combatant or a prisoner of war.[vii] Mercenaries are denied the prisoner-of-war status because of the shameful nature of military activity that is only aimed at achieving a private gain.[viii] This category of persons thus unlawfully take part in the conflict and the only protection that they will receive is under Article 75 of Additional Protocol.[ix]
The next question is, is it a crime to be a mercenary? Under the UN Convention,[x] if states parties thereto have adopted implementing legislation related to mercenaries, persons who fulfill the definition of a mercenary can be prosecuted for the distinct crime of being a mercenary though under international humanitarian law. On the other hand, a person does not violate the Geneva Conventions or the Additional Protocols for being a mercenary by its very nature and does not bring about international criminal responsibility.[xi] Though it is important to note that they may only be punished if the individual state has a separate legislation designating mercenarism as a distinct crime.[xii] Notably, the above applies irrespective of whether these mercenaries act in the offensive or in defence.[xiii] Thus, the companies will be classified as combatants if they meet the six elements and their members who provide services other than logistics and supply of food do actually take part in direct hostilities.
What then happens to private military companies employees who do not take part in direct hostilities or do not meet all the six elements? Can they be classified as combatants? Cameron states that there are three reasons that we should know whether private military companiesare combatants or not.[xiv] In establishing whether they are combatants, they should be incorporated as members of an armed group that is party to the conflict (contracted by a party to the conflict).[xv] This is because combatant status is tied to membership in the armed forces of a party to a conflict[xvi] or to membership of a militia group.[xvii]
Schimitt notes that the element of incorporation is purely a matter of internal law since international humanitarian law does not prescribe the steps to be taken during incorporation into an armed group as most armed forces have set procedures for enlistment or conscription.[xviii] The only requirement is that during incorporation, the incorporating party must inform the opposing party.[xix]
The attempt of classifying private military companies as combatant's has faced a lot of problems such as the Article 4(A)(2) conditions applying to groups, not individuals and such groups cannot consist of government employees, except in the unusual circumstance that they become resistance fighters upon isolation from the government.[xx] Some are incorporated into the armed forces and may lack the independence to be classified as militia groups and if they are classified as militia groups it may be argued that they do not belong to a party to the conflict.[xxi] With the challenge of classifying them as combatants, it will be imperative to consider if they are civilians before drawing a conclusion. Since under international humanitarian law, a person in an armed conflict must be a combatant or a civilian,[xxii] if PMC employees are not combatants, they are civilians.[xxiii] However, this is true if they do not take part in direct hostilities.
Direct participation in hostilities refers to taking part in acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.[xxiv] Support and logistics activities conducted by civilians, such as catering and construction and maintenance of bases, are not seen as direct participation in hostilities.[xxv] Thus private military companies employees who offer such support do not take part in direct hostilities. These employees are regulated from engaging in combat beyond self-defence.[xxvi] Thus, if they proceed and take part in the combat offensively, they will be combatants. The issue of self-defence will only apply where the private military companies are hired to guard civilian objects and not military objects.[xxvii]
In conclusion, the nature of the protection afforded to PMCs will depend on the class assigned to them based on the role they perform in the conflict. It is not clear that all private military companies are either mercenaries, combatants or civilians. The classification should thus be analysed on a case to case basis based on the factors provided in the paper.
*The author is an undergraduate student at Kabarak Law School.
[i] Lindsey Cameron, 'Private military companies: Their status in international humanitarian law and its impact on their regulation,' 88 International Review of the Red Cross (2006) 573.
[ii] The Business of War, 'Growing risks from private military companies', Council of the European Union General Secretariat, Art Research Paper, 2023, 2.
[iii] Peter Singer, Corporate warriors: The rise of the privatized military industry, Cornell University Press,
New York (2003) 89.
[iv] Francoise Hampson, 'Mercenaries: Diagnosis before prescription,' 3 Netherlands Yearbook of International Law (1991) 14–16. Though note that he argues that this cumulative test might be 'unworkable.'
[v] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (subsequently Additional Protocol I) 8 June 1977, Article 47(2). See also International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, UNGA Res. A/RES/44/34 (entered into force 20 October 2001) (subsequently the UN Convention) Article 1, see also Convention for the Elimination of Mercenarism in Africa, Organization of African Unity, Libreville, 3 July 1977, CM/817 (XXXIX), Annex II, Rev 3 (entered into force 22 April 1985) (subsequently the AU Convention) Article 1.
[vi] Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949, Article 4A (4).
[vii] Additional Protocol I, Article 47(1). Also note that Additional Protocol I, Article 45, obligates the detaining power the duty to constitute ''a competent tribunal'' to determine, the status of an individual who claims prisoner-of-war status (this may include persons classified as mercenaries who want to be accorded prisoner-of-war status).
[viii] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers, ICRC (1987) 574, para 1794.
[ix] Additional Protocol I, Article 75, which provides for fundamental guarantees. The extension of this protection to those who do not enjoy combatant status is specified in Additional Protocol I, Article 45.
[x] UN Convention, Article 2 states that any person who recruits, uses, finances or trains mercenaries commits an offence for the purposes of the Convention.
[xi] Cameron, 'Private military companies: Their status in international humanitarian law,' 577. Simply put is that a mercenary does not benefit from prisoner-of-war status if captured.
[xii] Cameron, 'Private military companies: Their status in international humanitarian law,' 577.
[xiii] Additional Protocol I, Article 49(1), which defines an attack as 'acts of violence against the adversary, whether in offence or in defence'. Though note that this is an implied interpretation as Article 49(1) does not directly refer to mercenaries.
[xiv] Cameron, 'Private military companies: Their status in international humanitarian law,' 582.
[xv] Geneva Convention III, Article 4A (1).
[xvi] Additional Protocol I, Article 43.
[xvii] Additional Protocol I, Article 43. If they are members of a militia group, they have to fulfill four elements which are that they are being commanded by a person who is in charge of the subordinates, they have a fixed distinctive sign recognizable at a distance, carry arms openly and that they are conducting their operations in accordance with the laws and customs of war. See, Geneva Convention III, Article 4A (2).
[xviii] Michael Schmitt, 'Humanitarian law and direct participation in hostilities by private contractors or civilian employees,' 5 Chicago Journal of International Law (2005) 524.
[xix] Additional Protocol I, Article 43(3).
[xx] Schmitt, 'Humanitarian law and direct participation in hostilities by private contractors or civilian employees,' 527.
[xxi] Schmitt, 'Humanitarian law and direct participation in hostilities by private contractors or civilian employees,' 529.
[xxii] Knut Dormann, 'The legal situation of ''unlawful/unprivileged combatants'',' 85 International Review of the Red Cross (2003) 72.
[xxiii] Cameron, 'Private military companies: Their status in international humanitarian law,' 587.
[xxiv] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para 1944.
[xxv] Cameron, 'Private military companies: Their status in international humanitarian law,' 588. See also, Geneva Convention III, Article 4A (4) which prescribes that civilians can perform roles such as supplying armed forces with food and shelter but still retain their civilian status. This also speaks to the question of private military companies employees.
[xxvi] Jean S. Pictet (ed), The Geneva Conventions of 1949: Commentary III Geneva Convention, ICRC, Geneva,' (1952) 51.
[xxvii] Cameron, 'Private military companies: Their status in international humanitarian law,' 589.
