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New Zealand Law Students' Journal |
Last Updated: 14 January 2013
FOREIGN PRINCES IN FAR OFF LANDS:
A BRIEF HISTORY OF HOW INTERNATIONAL LAW GOVERNING MERCENARIES HAS AIDED COLONIAL AND NEO-COLONIAL EXPLOITATION OF
‘UNCIVILISED’ NATIONS
WILLIAM FOTHERBY∗
Introduction
The term “mercenary” carries with it an implication of
moral bankruptcy matched by few other rubrics of
international law.
Terrorists, at least, are moved ultimately by a desire to achieve some
ideological goal: that is to say, it
is their violent means, not necessarily
their aims, which are deplorable. Mercenaries peddle this same
violence but for
their own personal gain.
Yet mercenaries have not always carried with them this cultural capital. As
this paper will show, while mercenaries have fought around
the world for over
3000 years, their treatment by international law has varied greatly over the
last 300, and most particularly over
the last 60 years. It is the argument of
this article, however, that this variation has been by no means the result of
chance or
the random shifting of attitudes or legal norms over time. Rather,
this article will argue that the way international law has applied
to
mercenaries and, what may or may not be viewed as their modern
manifestation, private military companies, reflects what
Antony Anghie has
termed “the civilising mission” of international law.
To do this, Part A will begin by examining Anghie’s hypothesis that international law absorbs and reifies the division between self and other
– between the civilised and the barbarian. Then, in Part B, the paper will examine the way international law governed mercenaries prior to
1907. This Part will show that, while a norm against mercenary use may have
crystallised by the beginning of the twentieth century,
this did little to
prevent European powers from hiring soldiers to further
∗ Candidate for BA/LLB (Hons), University of Auckland. I would like to thank, with the
usual caveat, Treasa Dunworth for her help with this
paper.
172 The New Zealand Law Students’ Journal (2009) 2
NZLSJ
colonial aims away from the European continent. Part C will track the
strengthening of an international prohibition on mercenary
use during the
period of African decolonisation, led predominantly by those African
countries against which mercenaries had
been used to thwart self-determination
and strong nationhood. This part will also show, however, how deference to the
interests
of powerful, European, and civilised states endowed this norm with a
number of fatal inherent weaknesses. Finally, in Part D, the
article will
examine the most recent and controversial development in this area of law
– private military companies –
and will argue that their tacit
legitimisation, as well as the prevailing argument that these companies are
not affected by
anti- mercenary laws, reflects the continuing colonial
undercurrents that Anghie sees ever-present in international law.
In
the article’s concluding remarks, I will reflect upon what this analysis
tells us more broadly about Anghie’s theory
of international law’s
civilising mission.
A. Anthony Anghie
Anghie’s claim is that the “colonial confrontation” was and
is central to the formation of international law.1 He develops his
argument in the following way. While international law claims to be universal,
authoritative, and advanced, in reality
it is predicated on an implicit division
between those who are civilised and those who are not: between the
European and
non-European worlds.2 This perceived cultural
difference animates what Anghie terms the “civilising
mission”:3
[T]he grand project that has justified colonialism as a means of redeeming
the backward, aberrant, violent, oppressed, undeveloped
people of the
non-European world by incorporating them into the universal civilization of
Europe.
1 This argument can be found in a number of pieces of Anghie’s work. See e.g. Antony Anghie “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations” (2001–2002) 34 NYU J Int’l L & Pol
513 [“Birth of International Institutions”]. However, this central thesis can also be found
in Antony Anghie Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, Cambridge, 2005) [“Making of International Law”] and several other articles, which will be cited as appropriate.
2 Anghie, Birth of International Institutions, ibid 518–519.
3 Anghie Making of International Law, above n 1,
3.
Foreign Princes in Far Off Lands 173
The civilising mission leads jurists to create legal doctrines that seek to
overcome this dichotomy and achieve uniformity and universality.
It is this
process, this “dynamic of difference”, that lies behind many of the
central doctrines and structures of
international law.4 For
Anghie, therefore, the economic exploitation, territorial dispossession, and
cultural subordination – understood to be an
inevitable part of the
colonising methodology – cannot be considered to be “epiphenomenal
aberrations in the international
system that were remedied by the
project of decolonisation and self-determination”.5 To the
contrary, they endure in contemporary international relations and serve
to generate the categories of analysis
that crucially affect our
understanding of the international legal system.6
B. Mercenaries and International Law to 1907
In 1294 BC, Ramses II led an army of mostly Numidian mercenaries7 in the Battle of Kadesh.8 Nearly a thousand years later, when Alexander the Great crossed the Hellespont to invade Persia, he did so with an army in which one-third, 11,900 men, were mercenaries, mainly foot soldiers.9 More recently – that is, in this millennium – Britain used
18,000 Hessian mercenaries during the United States War of
Independence.10 Indeed, hired soldiers have been an indispensable
part of many armies throughout recorded history. Neither is the concept of
private,
hireable companies of military skill a recent invention. In medieval
Europe “free companies” of soldiers were formed
with the aim of
making profit,11 while in the subsequent era of mercantile
imperialism, corporations such as the Dutch East India Company
4 Ibid 4.
5 Anghie, Birth of International Institutions, above n 1, 518.
6 Ibid.
7 The definition of “mercenary” is a central point of contention in this area of law, and
during the course of this paper this debate will be elaborated upon. At present, it is sufficient to note that the Oxford English Dictionary defines mercenary as a “hired soldier in foreign service” and it is on this general proposition that the article will proceed.
8 Major Todd Milliard “Overcoming Post Colonial Myopia: A Call to Recognize and
Regulate Private Military Companies” (2003) 176 Mil L Rev 1, 2.
9 Ibid.
10 Juan Carlos Zarate “The Emergence of a New Dog of War: Private International
Security Companies, International Law, and the New World Disorder” (1998) 34 Stan J Int’l Law 75, 82.
11 Ibid 83.
fielded private fleets and armies to protect their own economic interests.12 It was not until the middle of the 19th century that military knowledge and labour were seen as anything other than a freely alienable commodity in an international market;13 only with the rise of the notion of nation-state sovereignty, and the establishment of national standing armies, was it considered objectionable for a person to fight for a foreign power.14 The nation-state construct allowed governments to be held accountable for the coercive extra-territorial activities of their “citizens”, and the sudden strength of the link between an individual and his or her land of origin threatened to draw states into foreign wars in which “their” mercenaries were involved.15
Consequently, recruiting mercenaries within the borders of a state was seen
as an attack on sovereignty itself.16 To counter this, states began
to pass neutrality laws, which prevented the recruitment of their
citizens to foreign military
forces.17 The United States
promulgated the first of these laws in 1794,18 the same year that it
signed the Jay Treaty with Great Britain,19 which prohibited
nationals of each state serving in the foreign armies at war with the
other.20 Hand in hand with the perceived threat to state
sovereignty and legitimacy posed by uncontrollable private military
corporations,
this saw the use of mercenaries between European nations gradually
diminish.21
The writings of various international legal publicists over this time
document these changes. Vitoria was of the opinion that those
who were
prepared to fight for pay, not caring whether the war was just or
12 Ellen Frye “Private Military Firms in the New World Order” (2005) 73 Fordham Law
Review 2608, 2618.
13 Montgomery Sapone “Have Rifle with Scope, Will Travel: The Global Economy of
Mercenary Violence” (1999) 30(1) Cal W Int’l L J 1, 10.
14 Milliard, above n 8, 6.
15 Sapone, above n 13, 30.
16 Ibid.
17 Ibid 29.
18 Neutrality Act 1794 ch 50 § 5, 1 Stat 381 (US). Congress later repealed this Act in
1818; however, concern over citizen involvement in the Spanish Civil War led to a
second Neutrality Act being passed in 1935.
19 Opened for signature 19 November 1794, TS 105 (entered into force 29 February
1796).
20 H C Burmester “The Recruitment and Use of Mercenaries in Armed Conflicts (1978)
72 Am J Int’l L 37, 42.
21 Christopher Lytton “Blood for Hire: How the War in Iraq has Reinvented the World’s
Second Oldest Profession” (2006) 8 Or Rev Int’l Law 307,
308.
not, committed a mortal sin, not only where they were actually went to battle, but also whenever they were thus willing.22 However, this moral issue had largely disappeared by 1737, when Bynkershoek argued that there was no difference between the hire of mercenaries and any other contract.23 Even by the latter part of the 19th century there were few objections: writing in 1863 Twiss saw no problem in allowing recruitment on neutral territory if that territory allowed it,24 and in 1888
Calvo countenanced the employment of foreign troops assimilated into a national army.25 Yet, by the early 20th century, there was a perceived difference between active participation in recruitment and a duty to prevent individual citizens leaving national territory to recruit abroad. It was this distinction that was drawn in the Hague Conventions of
1907 – the first international attempt to regulate mercenary activity.
Article 4 of the Convention Respecting the Rights
and Duties of
Neutral Powers and Persons in Case of War on Land (“Hague V”)26
prevented corps of combatants being formed or recruiting agencies being
opened on neutral territory to assist belligerents. Article
6, however,
denied that states had any duty to prevent individuals crossing their
frontier separately to offer their services
to one of the belligerents.
Therefore, Hague V only affected mercenaries to the extent that a state
implemented its obligations
as a neutral.27
Frédéric Mégret has followed a similar path of
analysis to Antony Anghie, but has focused more specifically
on
international humanitarian law (“IHL”) (known also and equally as
the law of armed conflict).28 His work is a useful entry point to
any post-colonial critique that may be developed. Mégret’s view
is that the laws
of war have acted as one of the foremost instruments of forced
socialisation of
22 F Vitoria De Bello art I § 8 quoted in H C Burmester above n 20, fn 12.
23 Burmester, above n 20, 41.
24 Travers Twiss The Law of Nations Considered as Independent Political Communities (Clarendon
Press, Oxford, 1863) 456.
25 Burmester, above n 20, 41.
26 Opened for signature 18 October 1907, TS 540 (entered into force 26 January 1910)
(“Hague V”).
27 Milliard, above n 8, 21. These articles were only agreed after a German proposal,
which would have had belligerent states prohibited from accepting the service of foreigners, was rejected.
28 See Frédéric Mégret “From
‘savages’ to ‘unlawful combatants’: a postcolonial look
at international humanitarian law’s ‘other’” in Anne
Orford (ed) International Law and its Others (Cambridge University Press,
Cambridge, 2000).
non-European states into the international community.29 The
requirements that these laws impose is the product of a Western
fantasy about how wars should be waged:30
[A]nalogously constituted armies: adversaries rather than enemies, endowed
with the same military ethos and mores, and who fundamentally
situate their
violence in the context of the exercise of sovereign prerogatives.
In the face of “levee en masse, spontaneous resistance under
occupation and the use of guerrilla tactics from South Africa to Cuba”,
the laws of war worked
to consolidate the state’s monopoly on the
use of violence.31 A further important, and related, point to note
is that until the 1910s, and even the 1920s, these rules were thought simply not
to
apply to non-Europeans.32 From a formalistic point of view,
this was because these laws applied only between those states parties
that ratified the
constituent agreements, something from which non-
civilised nations were excluded because they were not considered
sovereign.33 An anthropological rationale lay in the belief that
the “savages” of Asia and Africa were not capable of showing
restraint
in battle: they were not capable of waging “civilised
warfare”. Obviously, therefore, it was impossible to wage
“civilised
warfare” against them.34
Accepting Mégret’s argument means that, from the start, the body
of international law that has regulated hired
military skill has been
complicit in a civilising and universalising mission. It comes as little
surprise, therefore, that in
spite of whatever code against the use of
mercenaries may have developed between European states by the 19th century,
these powers
freely hired foreigners to wage war extra- continentally.35
While the 1854 Crimean War is the most frequently given final instance of
a European state (Great Britain) raising an army of foreigners
to fight on
European soil,36 only twenty years previously King Louis of France
established the Légion Étrangère (the French
29 Ibid 308.
30 Ibid 307.
31 Ibid 305.
32 Ibid 279.
33 Ibid 284–286.
34 Ibid 289–295.
35 Zarate, above n 10, 86.
36 Ibid.
Foreign Legion) referring to “the traditions of foreign troops who have
served France since the Middle Ages”.37 Similarly, the
British established the equally famous Brigade of Gurkhas after defeating these
Nepalese fighters in 1816.38 With the former used extensively in
Africa and Indochina,39 and the latter serving in Burma, China,
India, and Malaya, among many others,40 both of these forces were
means by which foreign soldiers could further imperial aims in colonial battles.
Yet, while the argument
above is an important setting and beginning for this
discussion, the intention of this article is to search for colonial structures
beyond this. That international law endorsed the exploitation and
conquest of non-European peoples, prior to the
20th century, is unsurprising
because during this time it did not claim to be truly open or universal:
it palpably distinguished
between the “civilised”, which it
would protect, and the “uncivilised” that it would not. The focus
of this article is, rather, on the period following the process of
decolonisation, for it was after this that a more powerful argument
regarding
the universality of international law was made – that it was “not
merely equally applicable to all societies,
but that all societies participated
on equal terms in its formulation”.41 In this next part,
therefore, the focus will be on the specific laws and conventions applied to
mercenaries since the latter half
of last century.
C. Mercenaries and Decolonisation
Decolonisation led to a mercenary renaissance. From the 1960s onwards, colonial powers used mercenaries against national liberation groups in the third world, almost exclusively in Africa.42 The use of mercenaries by the Katanga secessionists in the Congo from 1960 to
1963, and, subsequently, by the Tshombe and Mobutu governments against the
Simbas from 1964 onwards, was supported by missions sent
to Belgium and France
in 1960, and the opening of recruiting offices in South Africa in 1961.43
The United Nations (“UN”) condemned Portugal, too, for
allowing foreign mercenaries to use Angola as a base
37 Frye, above n 12, 2617.
38 Zarate, above n 10, 86.
39 Ibid.
40 Frye, above n 12, 2617.
41 Anghie, “Birth of International Institutions”, above n 1, 517.
42 Frye, above n 12, 2625–2626.
43 Burmester, above n 20, 48.
for this interference in the Congo’s internal affairs.44 The French Secret Service recruited 53 French and German mercenaries to aid the unsuccessful secessionist attempt by Biafra, from Nigeria, in 1967,45 while the Rhodesian government recruited British mercenaries to support white minority rule.46 There are suggestions also that the United States’ Central Intelligence Agency (“CIA”) might have covertly funded the mercenaries subjected to the infamous Luanda trial of
1976,47 something made more believable by the fact that the agency aided recruitment for Tshombe’s government in the Congo between
1964 and 1965.48
The period of decolonisation also opened the door to increased participation
in international law by newly independent states, which,
for example, quickly
ratified the Geneva Conventions.49 While the colonial powers
attempted to avoid discussing the issue, second and third world countries were
successful in pressuring
the UN to confront the mercenary problem, especially
given the number of countries in which mercenaries operated and the notoriety
that they enjoyed for the brutality of their actions.50 In 1968,
the General Assembly (“GA”) adopted Resolution 2465, the Declaration
on the Granting of Independence to Colonial
Countries and Peoples, by 53 votes
to 8, with 43 abstentions.51 The resolution included the
following:52
[T]he practice of using mercenaries against movements for national liberation
and independence is punishable as a criminal act and
... mercenaries
themselves are outlaws.... Governments of all countries [should] enact
legislation declaring the recruitment, financing
and training in their
territories to be a punishable offence and prohibiting their nationals from
serving as mercenaries.
44 See e.g. SC Res 241 22 SCOR, 1378th Meeting, UN Doc S/RES/241 (1967).
45 House of Commons Private Military Companies: Options for Regulation: HC 577 (2002) 29.
46 Ibid.
47 Sarah Percy “Mercenaries: Strong Norm, Weak Law” (2007) 61 International
Organization 367, 373.
48 House of Commons, above n 45, 28.
49 Mégret, above n 28, 296.
50 Zarate, above n 10, 128.
51 GA Res 2465, UN GAOR, 23rd sess, Supp No 18 at 4, UN Doc A/7218 (1968).
52 Ibid [8].
This resolution was not indicative of an existing international or domestic
crime of mercenarism, an observation that leads Milliard
to conclude that it was
a principle promoted by some UN member states in the hope that it would
eventually become, through state
practice, customary international law.53
The fact it received only slightly more than half the votes in the General
Assembly at the time supports this.54
In contrast, the GA adopted Resolution 2625 by consensus in 1970.55
This differed from Resolution 2465 in three ways: it did not refer to
individual mercenaries as criminals per se; it did not limit itself to national independence and liberation movements; and rather than prohibiting states from knowingly tolerating mercenary activities that led to incursions into other states, it proscribed their organisation or encouragement.56 It thus was a retreat from the position stated in Resolution 2465: not only did it lack its political overtones, but also it was consistent with the principles enunciated in Hague V. These two factors are credited with the Resolution’s unanimous acceptance.57
Three years later, however, Resolution 3103 returned to these earlier themes,
declaring the use of mercenaries by colonial and racist
regimes a criminal act
and mercenaries punishable as criminals.58 This was passed by 83
votes to 13, with 19 abstaining.59
These resolutions could not modify the rules of the Geneva
Conventions signed in 1949. Neither was subsequent
state practice sufficiently
uniform to suggest that a customary law rule had evolved as a result.
Nevertheless, writing in 1980,
Cassese concluded that the resolutions, insofar
as the non-European states managed to gain acceptance of their view from
numerous
others, could be viewed as laying the foundations for an adequate
modification of the relevant international law.60
53 Milliard, above n 8, 26. This is to say it was a de lege ferenda principle, as opposed to a de lege lata principle that represents an emerging customary law rule.
54 Antonio Cassese “Mercenaries: Lawful Combatants or War Criminals” (1980) 40(1)
ZaöRV 1, fn 23.
55 GA Res 2625, UN GAOR 25th sess, Supp No 28, at 123, UN Doc A/8028 (1970).
56 Ibid.
57 Milliard, above n 8, 27.
58 GA Res 3103, UN GAOR 28th sess, Supp No 30, at 142, UN Doc A/9030 (1973).
59 Ibid.
60 Cassese, above n 54, 11.
In 1963, newly independent African states formed the Organisation of African
Unity (“OAU”), which at that time was the
world’s largest
regional grouping.61 Its charter elevated state sovereignty,
calling for the inviolability of national borders and denouncing uninvited
interference in
member states’ internal affairs.62 Given
this, it did not take long before it looked to confront the destabilising effect
of mercenaries. In 1971, the OAU issued a declaration
stating that foreign
domination in some African states enabled mercenaries to operate, and that their
liberation was an essential
factor in eliminating mercenaries from the
continent.63 The following year it produced the Draft Convention
for the Elimination of Mercenaries in Africa (“Draft
Convention”).64 The text’s intention was to
criminalise mercenarism and mercenary recruitment. It also defined
mercenarism, without reference
to motivation, to cover anyone who was not a
national of the state against which the actions were directed, and who was
employed,
enrolled or linked themselves willingly to a person, group
or organisation whose aim was to overthrow a government of a
member state,
undermine the independence of a member state, or to block the activities of a
liberation movement recognised by the
OAU.65 In this way, it
“correctly identif[ied] what needed to be proscribed”66
and “define[d] mercenaries narrowly according to their
purpose.”67 The Draft Convention also did not address
mercenary status under the laws of war.68 In 1976, the
International Commission of Inquiry on Mercenaries, created by the Angolan
government, issued its own draft convention.69 During this time, 13
foreigners were on trial in Luanda, Angola, for mercenary activity, and it was
this politically charged atmosphere
that incubated the agreement, something that
has led to it being roundly criticised.70 It, too, declared
mercenarism to be an
61 Milliard, above n 8, 43.
62 Charter of the Organisation of African Unity, opened for signature 25 May 1963, 479
UNTS 39 (entered into 13 September 1963).
63 OAU Declaration on the Activities of Mercenaries in Africa, OAU Doc CM/St
6(XVII) (1971) cited in Milliard, above n 8, 45.
64 OAU Doc CM/433/Rev L Annex I (1972) (“Draft Convention”).
65 Ibid art 1.
66 Milliard, above n 8, 43.
67 House of Commons, above n 45, 7.
68 Milliard, above n 8, 46.
69 Frye, above n 12, 2629.
70 Milliard, above n 8, 47–52.
international crime and an obstacle to self-determination, and called on
states to prevent it from occurring within their jurisdiction.
The next important step came at the Diplomatic Conference on the Reaffirmation and Development of International Law Applicable in Armed Conflicts, the ultimate result of which was, in 1977, to add a protocol to the Geneva Conventions of 1949 (“Protocol I”).71 Article
47 of this protocol covered the activities of mercenaries, and resulted from
a proposal of the Nigerian delegation in 1976. Article
47(1) denied
mercenaries the rights of combatant or prisoner of war status, something African
states had fought hard for throughout
the conference.72 However,
its effect is largely neutralised by the definition found in art 47(2):
2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed
conflict;
(b) Does, in fact, take a 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 its armed forces.
Article 47, therefore, embodies the intention, on the part of African and
Socialist states, to equate mercenaries with war
criminals and deprive
them of any legal protection.73 Yet, at the behest of Western
states, it neither makes mercenarism a crime nor prohibits the recruitment,
training, or financing of
mercenaries.74 Further, art 47(2) is
cumulative, and because each criterion must be satisfied, the
71 Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, opened for signature 8 June
1977, 1125 UNTS 3 (entered into force 7 December 1979)(“Protocol I”).
72 Fris Kalshoven and Liesbeth Zegveld Constraints on the Waging of War: An Introduction to
International Humanitarian Law (3rd ed, ICRC, Geneva, 2003) 90.
73 Cassese, above n 54, 28.
74 Ibid.
definition is exceedingly narrow.75 It is also widely regarded
to be so flawed as to be unusable, for well-known reasons.76 The
financial motivation at the heart of the definition is at best difficult, and at
worst impossible, to prove. Paragraph 2(e),
furthermore, allows states to
incorporate mercenaries into their own armed forces and avoid
liability.77 Ultimately, therefore, art 47 did not serve to
suppress the use of mercenaries, but merely provided options for states that
wish to
do so.78 Cassese’s assessment is both apt and
eloquent:79
Incompleteness, reticence, ambiguity—this is the price that must be
paid ... to the forces in favour of the status quo and the protection of
vested interests.
Less than a month after Protocol I opened for signature, the OAU issued its
Convention for the Elimination of Mercenarism in Africa
(“OAU Mercenary
Convention”).80 It abandoned the more considered language of
the 1972 Draft Convention, instead referring to “colonial and racist
domination”—language
that also appears in the general provisions of
Protocol I.81 Further, while it adopted the problematic definition
of mercenary found in Protocol I,82 it also incorporated the crime
of mercenarism adopted by the Luanda Convention.83 This could
perhaps be indicative of the disappointment of OAU members with the result of
the international negotiations. Certainly,
it was in response to these member
states’ dissatisfaction with the limited curtailment of mercenary
activities that, in 1980,
the GA created an ad hoc committee with the
responsibility for drafting an international mercenary
convention.84
75 Percy, above n 47, 377.
76 House of Commons, above n 45, 8.
77 Percy, above n 47, 377.
78 Lindsey Cameron “Private Military Companies and their Status under International
Humanitarian Law” (2006) 88(863) International Review of the Red Cross 573, 579.
79 Cassese, above n 54, 28.
80 Opened for signature 3 July 1977 OAU Doc CM/817 (XXIX), Annex II Rev I
(entered into force 22 April 1985) (“OAU Mercenary Convention”).
81 Milliard, above n 8, 52.
82 OAU Mercenary Convention, above n 80, art 1(1).
83 Ibid art 1(2).
84 Milliard, above n 8, 65.
Not until 1989, however, did the GA adopt and open for signature the
Convention against the Recruitment, Use, Financing and Training
of
Mercenaries.85 It adopted nearly entirely the definition of art
47(2) of Protocol I, but also included a complementary definition in art 1(2),
which
states that a mercenary is, in any other situation, a person recruited to
overthrow a government or undermine the territorial integrity
of the state. In
all likelihood, this was added to protect the fragile sovereignty of nascent
African states, at the expense
of the groups of irregular forces still vying
for power within them.86 A similar concern is evident in the OAU
Mercenary Convention.87
The UN Convention imposes criminal liability on mercenaries and those who
recruit them.88 It also imposes on states an affirmative
obligation to “prohibit” these activities generally and
“prevent”
them if they oppose a self-determination movement.89
Finally, for the first time, States Parties are prohibited from directly
or indirectly using mercenaries.90 Therefore, it would seem
that the concerns of the African states, evident in Resolution 2465, and the
OAU and Luanda Conventions,
largely found protection in international law.
However, as this article will show, the colonial drive Anghie identifies has by
no
means been exorcised from the law in this area.
D. Private Military Companies
The resistance of Western states to the proposals for mercenary regulation
was to be expected. Mercenaries were, for some time,
a means by which colonial
powers could delay progress towards African self-determination, often in
furtherance of the aim of economic
exploitation.91 Yet, as reports
of mercenary brutality emerged, and the former colonies were able to
win support for their plight
internationally, both ideological and legal
norms hardened against any link to mercenary activity. The reason mercenaries
were to
be regulated
85 Opened for signature 4 December 1989, A/Res/44/34 (entered into force 20 October
2001) (“UN Mercenaries Convention”).
86 Milliard, above n 8, 62.
87 Zarate, above n 10, 125.
88 UN Mercenaries Convention, above n 85, arts 2–4.
89 Ibid art 5.
90 Ibid.
91 Frye, above n 12, 2623; House of Commons, above n 45,
15–16.
lay in the fact they did not fight for an “appropriate cause” – they were motivated by money, rather than by patriotism or ideology – and so their actions were to be viewed as immoral, dangerous, or both.92
Further, they were unaccountable: they operated outside any type of
legitimate (that is, state-administered) authoritative control.93
The relevant legal instruments reflect these fears.94
Yet, from the early 1990s, an ostensibly new phenomenon confronted
international legal discourse on the subject of mercenaries: the
Private
Military Company (“PMC”).95 This term was and is
understood to cover a number of different profit-orientated entities that offer
military services.96 And it was these companies that became the
predominant form of hired military skill active in non-European countries. The
best-known
example is that of the South African firm “Executive
Outcomes” (“EO”). The Angolan government hired this
PMC,
first to secure an oil field owned by Western oil companies and, second, to
train government troops attempting to suppress
rebel movements inside the
country.97 EO brought with them infrared capabilities, advanced
communications, not to mention Mi-8, Mi-17, and Mi-17 gunships, and was widely
credited with regaining territory with mineral wealth and forcing the rebel
movement to agree to the UN-brokered Lusaka Protocol
of 1995.98
After this success, the Sierra Leonean Government hired EO for roughly
the same purposes.99 Another commonly cited example is Military
Professional Resources (“MPRI”), a United States company with
strong links
to its national military. MPRI was hired by the Croatian
Government to improve the capabilities of its armed forces in
1995, and, that
year, Croatian forces performed unexpectedly well in “Operation
Storm” – an offensive against
Serb forces in the Krajina
region.100 Demand for PMCs
92 Percy, above n 47, 371.
93 Sarah Percy “This Gun’s for Hire: A New Look at an Old Issue” (2003) 58 Int’l J 721,
736 [“This Gun’s for Hire”].
94 Percy, above n 47, 379–380.
95 Zarate, above n 10, 75–76.
96 PW Singer “War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law” (2004) 42 Colum J Transnat’l L 521, 522. Note that this, too, is a vexed definition and the interpretation given to it in this article is a broad one.
97 House of Commons, above n 45, 11.
98 Zarate, above n 10, 94–95.
99 House of Commons, above n 45, 12.
100 Sapone, above n 13, 25.
exploded with operations in Iraq and Afghanistan, with an estimated
20,000 to 30,000 PMC employees in Iraq making them the second largest
contingent in the country after the United States Army.101
The obvious question attached to the rise of PMCs and their operation in
numerous countries all round the world is why they are neither
prohibited nor
even regulated by international law. After all, they and their employees would
seem to meet the definition of forces
foreign to a conflict that engage in
warfare with the object of private gain. Their theatres of operations would
appear also to
encompass many, if not most, of the states and territories in
which mercenaries were most active and considered the most problematic.102
Yet the use of PMCs is widespread because international law has not
evolved to meet the challenges that their operations pose.103 It
is the hypothesis of this article that Anghie’s thesis, detailed above, is
capable of explaining this lacuna.
The first point to address is why the services of PMCs are in such demand. While they are an “overwhelmingly Western phenomenon”,104 most of their work takes place in weak and non-European states.105
And it is not just military operations conducted openly by Western
governments, such as the imposed change to a democratic regime
in Iraq, that
rely on PMC assistance. Both the United Kingdom and the United States have long
been prominent users of private contractors
to execute foreign policy in parts
of the world where they would prefer not to be seen.106 Added to
this must be the strong links between PMCs and the governments and
militaries of their home states, especially given
the fact that PMCs usually
include former members of national armed forces or intelligence
services.107 Further, while PMCs commonly claim to work for
legitimate governments only, and thus not
101 E L Gaston “Mercenarism 2.0? The Rise of the Modern Private Security Industry and Its Implications for International Humanitarian Law Enforcement” (2008) 49 Harv Int’l LJ 221, 223.
102 Zarate, above n 10, 140–141; Sapone, above n 13, 19.
103 Percy, above n 47, 368.
104 House of Commons, above n 45, 12.
105 Frye, above n 12, 2646.
106 Geneva Centre for the Democratic Control of Armed Forces Privatising Security: Law,
Practice and Governance of Private Military and Security Companies: Occasional Paper 6 (2005) 72 [“GDAF”].
107 Ibid.
rogue states with suspected links to terrorism like Sudan, or patently
unpopular regimes like Mobutu’s in Zaire,108 there are
suggestions that this, in fact, may not be the case.109 In any
event, it will be these companies’ home states and media that will be the
arbiter of which governments are “legitimate”
and thus influence
those clients PMCs choose to serve. Yet, it is not just by allowing Western
states to give military support to
its chosen causes that PMCs help perpetuate
imperialism. Anghie has argued that the Mandate System heralded a transition
from a
formal system of colonialism to a “more elusive but nonetheless
powerful system of neo-colonialism based on economic control”,110
and, similarly, it is these concerns that are raised by the use of PMCs in
third world states, even from within the UN.111 The Special
Rapporteur on the Use of Mercenaries has noted the way that PMCs take advantage
of their connections with multinationals
– oil, mineral, chemical
companies among others – and use their military resources to establish an
“economic and
financial hegemony of their business partners ... pav[ing]
the way for the multinational neo- colonialism of the twenty-first
century”.112 The House of Commons has labelled it
“striking” that the countries in Africa with readily
available mineral
wealth are PMCs’ greatest employers.113
Moreover, many analysts have noted EO’s close connections with the
Branch- Heritage group: a group of companies with interests
in energy and
mining.114 This group secured concessions to oil blocks in Angola
and diamond blocks in Sierra Leone following EO operations in each of these
states.115 The cost for developing countries in consolidating self-
government is to make such government subservient to the corporate interests
of
the developing world, a move that does not ameliorate the threat to these
states’ sovereignty but rather shifts and exacerbates
this threat to and
at the economic level. In short, therefore, PMCs are used
108 Zarate, above n 10, 94.
109 Ibid 101.
110 Antony Anghie “Time Present and Time Past: Globalization, International Financial
Institutions, and the Third World” (2000) 32 NYU J Int’l L & Pol 243, 277 [“Time
Present and Time Past”].
111 Enrique Bernales Ballestros Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and impeding the Exercise of the Right of Peoples to Self-Determination UN ESCOR, 53rd sess, UN Doc E/CN.4/1997/24 (1997).
112 Ibid [109].
113 House of Commons, above n 45, 16.
114 Zarate, above n 10, 100.
115 House of Commons, above n 45, 16.
overwhelmingly to further the aims of Western powers in poor, non- Western
countries. Often this will be in a manner that bypasses
the democratic and
electoral controls that otherwise serve to regulate initiatives of foreign
policy.
Anghie notes too that these techniques of control and management are justified by the formulation of a new and comprehensive moral framework “based on a proper understanding of universal laws on how
‘development and welfare’ may be achieved”.116 In this context, what is
conspicuous is that the moral concern that mercenary activity raised –
the precept that it is wrong for strangers to a conflict
to seek profit from it
– is absent from the discourse surrounding PMCs. Rather, EO claimed that
it was “trying to aid
growth and democracy by bringing stability and
foreign investment”.117 This is a common argument raised in
favour of PMCs: many claim that they are vital to upholding the sanctity of
developing nation
states by safeguarding the rule of legitimate but weak
and challenged governments,118 and, further, that any possible
blanket ban could imperil these states’ inherent right to self-defence
enshrined in art
51 of the UN Charter.119 Another
example can be found in the suggestion, with regard to the recent “rent a
coup” episode in Equatorial Guinea
involving the South African
“Logo Logistics” firm, that although the firm may have fronted for
outside interests in
the profit-motivated toppling of a government, the results
of the coup may have been an improvement. While in this case the president,
(who came to power by killing his uncle) may have been legitimate under
“archaic international standards”, he was, it
was noted, a wholly
ruthless abuser of human rights.120 It is this characterisation
– as states in need of stability, development, and investment – that
legitimises the intervention
in domestic affairs by private Western
companies.
Despite the international law instruments that have sought to curtail
mercenary activity, state practice, which determines the development
of
customary international law, suggests that there is a general acceptance of PMCs
and the basis for an international norm to support
their
116 Anghie, “Time Present and Time Past”, above n 110, 284.
117 Zarate, above n 10, 98.
118 GDAF, above n 106, 119.
119 Singer, above n 96, 544.
120 GDAF, above n 106, 73.
legitimacy.121 The “unworkable” definition of mercenary at international law, if easily evadable by individuals, certainly poses no danger to private companies. Similarly, the UN Mercenary Convention, which opened for signature in 1989, came into force only in 2001 with the support of none of the major state powers. In January
2008 it had only 30 ratifications, almost exclusively third world
states,122 while no-one has yet been prosecuted under this treaty.
This has led some to suggest that it acts almost as a form of
“anti-customary
law” in that, as a treaty, it weakens the norm it
has set out to protect.123 It is widely acknowledged, furthermore,
that IHL is an ineffective possible regulator of PMC activity. As Cameron
argues,
because the vast majority of PMC employees will have the status of
civilians,124their accountability falls on domestic criminal
justice systems, not international law. This in turn is problematic
given
that most PMCs operate and commit otherwise punishable abuses in states with
weak or non-existent legal systems,125 and cases brought before
national courts of PMCs would likely be long and difficult.126
The fact that international law has not evolved to restrict these
companies reflects the role colonialism plays in its development
and formation,
as well as the moral framework that is cultivated to justify it. International
law’s toleration of PMCs
furthers the civilising mission by
allowing the
121 Singer, above n 96, 533; Zarate, above n 10, 114.
122 Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self-Determination UNHRC 7th Sess UN Doc A/HRC/7/7 (2008) [52]. Interestingly, many OAU states that originally pressured the United Nations to end state use of mercenaries no longer support the convention that resulted from their efforts: they do not wish to efface for themselves the option of hiring military contractors when it is in the interests of their governments to do so – usually to suppress rebel movements intent on loosening their grip on power. See Milliard, above n
8, 64. This, perhaps, is an example of Anghie’s observation that the post-colonial
government reproduces the civilising mission internally in its attempt to control and assimilate minorities in order to create a coherent nation state. See Anghie, Making of International Law, above n 1, 10. As the nation state is the primary actor in international law, cementing it as the key political entity – as opposed to smaller community or tribal groupings – strengthens and extends the reach of international law and thus its civilising influence. For Anghie’s perspective on the relationship between the state and minorities in post-colonial state see Antony Anghie “Nationalism, Development and the Postcolonial State: The Legacies of the League of Nations” (2006) 41 Tex Int’l L J 447,
458–460.
123 Singer, above n 96, 531.
124 Cameron, above n 78, 594.
125 Frye, above n 12, 2646.
126 Cameron, above n 78, 595.
values and causes Western states support to be enforced in the developing
world. It also allows multinational interests to gain access
to developing
world resources, thus causing poor states to fall under the West’s
economic control – perpetuating a third
world sovereignty constrained by
powerful economic forces. This is justified through the rubric of
development. The activities
of PMCs in the developing world, unlike those
of mercenaries, are not morally reprehensible for seeking to profit from foreign
conflicts
or unduly interfering with the internal affairs of developing
countries; rather, they operate for the benefit of poor
“uncivilised”
states by ensuring “legitimate”
governments can maintain sovereign control and economic interests can be freely
developed.
It is in this way that racial superiority and economic dominance
are embodied in this area of international law.
Conclusion
This article has tracked the development of international law in relation to
mercenaries and private military companies. It has argued
that, from
international law’s exclusion of non-Europeans from its protection in the
19th and early 20th century, to
weak and unworkable law to regulate
the use of mercenaries, to a tacit legitimisation of the use of PMCs,
Anghie’s thesis
of the “civilising mission” remains pertinent
throughout. Far from upholding the rights of all nations and their citizens,
international law in this area has carried with it a colonial imperative that
has privileged those who are regarded as civilised,
to the detriment of those
who are seen to be not. Instead of protecting weak nations and weak groups
within nations from the predatory
designs of those in greater positions of
power, it has worked to further and strengthen these divisions and reinforce
the
status quo.
Yet there is nothing surprising in the claim that international law has been shaped to suit the wills of the more powerful states to the disadvantage of the weaker; it has long been made about law in general, and, indeed, Anghie is not the first or only one to argue in this way.127
Furthermore, it must be noted that this is a theory that began through
reflection upon the Mandate System and the process of decolonisation,
and that
has since been extended to apply to further and increasingly
127 See e.g. Martii Koskenniemi From Apology to Utopia
(Cambridge University Press, Cambridge, 2005).
various areas of international law.128 The test of the theory,
therefore, could be seen to be how far the model can stretch; that is, the
number of different areas of international
law to which it can be applied and
still offer lucid explanations for the particular structures that are in place.
It could also
be argued that this theory is only as good as the way in which
specific areas of law are chosen for analysis. However, it would
not appear
that the essence of Anghie’s claim is that international law is
absolutely and purely, now as it has
been always, a colonial tool. Rather, his
broader statement seems to be that not only is it important to study the past to
derive
better methodologies to analyse the structures of the present, but also
that the study of history, and law as well, must be undertaken
on the basis
that commonly accepted narratives are monolithic and hegemonic, and thus must
be challenged and dissected if they
are to be more than superficially
understood. The resonance of his argument does not lie in his claim that
international law is
imperial; indeed, he seems to regard this as an obvious and
recognised fact. Anghie’s thesis is focused instead on the various
means
and mechanisms by which hierarchies of value can shift, consolidate, and
reproduce within disciplines – such as law –
that are judged to be
disinterested. The message to take from his work, therefore, is that it is
only through real critique and
scrutiny, through being alive to the capacity for
veiled ideologies within discourse, and through a desire to learn from the
experience
of the past, that the foundation can be laid for better modes of
thinking and more equitable structures of international
law.
128 Anghie, Making of International Law, above n 1, 1–4.
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