The Ineffectiveness of the Current Definition of a “Mercenary” in International Humanitarian and Criminal Law

Abstract

The world is facing today new forms of mercenarism. Non-State armed groups, such as foreign fighters and private military and security companies (PMSCs), operate with impunity in armed conflicts.

In the 1960s, colonial powers recruited mercenaries, particularly in Africa, to crush liberation movements fighting for their independence. Private military and security companies closely linked to the economic interests of the international mining sector have replaced these soldiers of fortune, or dogs of war.

The turning of the century has seen PMSCs increasingly taking part in hostilities and armed conflicts. The revolving door phenomenon between governments and PMSCs, particularly in Western countries, has largely contributed to this phenomenon.

With the globalization of the economy, in the 1980s, governments are increasingly outsourcing to the private sector security and a number of functions considered as the prerogative of the State.

The United Nations has defined the use of mercenaries “as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.” In order to control this phenomenon, it adopted, in 1989, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

The UN Convention, however, as well as other international instruments adopted in the mid-twentieth century have become obsolete to deal with the new forms of mercenarism.

This article underscores the difficulties to apply the provisions contained in the definition of the 1989 Convention and emphasizes the need to adopt a new binding international instrument regulating private military and security companies.