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The Recruitment and use of Mercenaries in Armed Conflicts

  • H. C. Burmester


Recent events in Angola and Rhodesia have drawn public attention to the problems which arise from the use of mercenaries in armed conflicts and civil wars. Renewed interest in the subject has also been shown by international bodies and conferences, including the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which recently adopted a treaty article on the status of mercenaries. This article examines the international legal rules applicable to states in relation to the recruitment and organizing of mercenary forces, the appropriate domestic legislation to give effect to such rules, and the status to be accorded mercenaries for the purposes of the laws of war.



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1 Report of the Committee of Privy Counsellors appointed to inquire into the recruitment of mercenaries, Cmnd. 6569, para. 7 (August 1976).

2 For a discussion of the 1976 session, see Van Deventer, , Mercenaries at Geneva, 70 AJIL 811(1976).

3 Doc. CDDH/III/361/Add.1 (June 7, 1976).

4 Doc. CDDH/III/GT/82 (May 13, 1976).

5 See Doc. CDDH/III/374 (April 29, 1977) for text as adopted by the Committee.

6 Art. 47(1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I). For text of Protocol, see 16 ILM 1391 (1977).

7 Supra note 1 and accompanying text.

8 See the Report of Committee III, para. 26, Doc. CDDH/III/408 (May 12, 1977).

9 Id. para. 25.

10 A. Mockleb, Mercenaries, Ch. 1 (1970).

11 ”…He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny …”

12 “Those who are prepared to go forth to every war, who have no care as to whether or not a war is just, but follow him who provides the more pay, and who are, moreover, not subjects commit a mortal sin, not only when they actually go to battle, but whenever they are thus willing.” F. Vitoria, De hello, Art. I, §8. Quoted in 2 J. B. Scott, Law, The State and the International Community 328 (1939).

13 Suarez, F., De Triplici Virtute Theologica 83235 (Trans., Classics of International Law ed. (1944)).

14 Van Bynkershoek, C, Quaestionum Juris Publici Libri Duo 125 (Trans., Classics of International Law ed. (1930)).

15 De Vattel, E., The Law of Nations or the Principles of Natural Law, 240 Trans., Classics of International Law ed. reprinted 1964).

16 4 Calvo, C., Le Droit International 131 (4th rev. ed. 1888).

17 Twiss, T., The Law of Nations, 45354 (1863).

18 2 Lorimer, J., The Institutes of the Law of Nations 179 (1884).

19 See, for instance, Hall, W. E., A Treatise on International Law 71475 (8th ed. 1924); 2 Hyde, C C., International Law Chiefly as Interpreted and Applied by the U.S. 70304, 758 (1922).

20 For example, 2 Oppenheim, L., International Law 703 (7th ed. Lauterpacht, H. 1952); 2 Westlake, J., International Law 210 (2d ed. 1913); Greenspan, M., The Modern Law of Land Warfare 546 (1959).

21 36 Stat. 2310; TS No. 540; 1 Bevans 654; 2 AJIL Supp. 117 (1908).

22 8 Stat. 116; TS No. 105; 12 Bevans 13, Art. 21.

23 Adopted, Feb. 7, 1923. 2 Hudson, M. O., International Legislation 901 (1932). Art. 14.

24 Adopted, Feb. 20, 1928. 47 Stat. 1989, TS No. 845, 2 Bevans 721, 135 LNTS 187.

25 GA Res. 2625. 25 GAOR. Supp, (No. 28) 121, UN Doc. A/8028 (1970).

26 GA Res. 3314, Art. 3(g). 29(1) GAOR, Supp. (No. 31) 143, UN Doc. A/9631 (1974), 69 AJIL 480 (1975). Compare the most recent resolution which condemned both the recruitment and sending. GA RES. 31/91. 31 GAOR, Supp. (No. 39) 42, UN Doc. A/31/39 (1976).

27 See Stone, , Hopes and Loopholes in the 1974 Definition of Aggression, 71 AJIL 224 (1977).

28 See Moore, , The Control of Foreign Intervention, 9 Va. J. Int. L. 205 (1969); Farer, , Intervention in Civil Wars: A Modest Proposal, 67 Col. L. Rev. 266 (1967).

29 Supta note 21.

30 Garcia-Mora, M., International Responsibility for Hostile Acts of Private Persons Against Foreign States 68 (1962).

31 See, Manual of Public International Law 841 (Sorenson ed. 1968).

32 See, for instance, draft Article 10 of the Harvard Draft Articles on Responsibility of States, Research in International Law, 23 AJIL Spec. Supp. 187 (1929).

33 Id. The comment to that article includes the following:“Due diligence” assumes that the state has jurisdiction to act. It would usually be impossible for a state to take measures to prevent injuries from being inflicted by its nationals in the territory of other states.

34 Several states at the Conference on International Humanitarian Law would have liked the provision on mercenaries to have dealt with the scope of responsibility of states that encourage or allow recruitment and enlistment of their citizens as mercenaries. See Report of Committee III, supra note 8, para.24.

35 GA Res. 217, UN Doc. A/811 (1948), 43 AJIL Supp. 127 (1949).

36 GA Res. 2200. 21 GAOR, Supp. (No. 16) 54, UN Doc. A/6316 (1966), 61 AJIL 870(1967).

37 See Art. 12(3) of the Covenant on Civil and Political Rights, supra note 36.

38 The Diplock Report recognized the unsatisfactory nature of any attempt to control movement by restrictions on passports. Supra note 1, paras. 18-23. For a brief discussion of difficulties in the United States of restricting movement by the use of passports, see H. Steiner and D. Vagts, Transnational Legal Problems 130-31 (2d ed. 1976).

39 See, for instance, 2 D. P. O’Connell, International Law 825 (2d ed. 1970).

40 Supra note 1, para. 11.

41 Id. paras. 12, 15. The Report did not consider such a high standard had to be met before restrictions on activities connected with the actual recruitment of mercenaries were justified, as distinguished from enlistment.

42 For information on Angola, see Mercenaries in Africa: Hearings before the Special Subcomm. on Investigations of the House Comm. on International Relations,94th Cong. 2d Sess. (1976). For an account of the trial by one of the defense counsel, see Cesner, & Brant, , Law of the Mercenary: An International Dilemma, 6 Capital U. L. Rev. 339 (1977); and Note, , The Laws of War and the Angolan Trial of Mercenaries: Death to the Dogs of War, 9 Case Western Reserve J. Int. L. 323 (1977).

43 See J. De St. Jorre The Nigerian Civil War Ch. 12 (1972); D. S. P. Cronje, The World and Nigeria (1972); Mockler, supra note 10, at 279.

44 For a detailed account, see H. Thomas, The Spanish Civil War (1961). Also see N. Padelford, International Law and Diplomacy in the Spanish Civil Strife 311 (1939). Chapter 3 contains a detailed account of the nonintervention system and Appendix V sets out the texts of legislative and other measures adopted by states to restrain the departure of volunteers.

45 See S-J. Clarke, The Congo Mercenary (1968) for a general description of the use of mercenaries in the Congo conflicts.

46 W. Ch. 3.

47 SC Res. 161. 16 Scor, Res. & Dec. 2, UN Doc. S/4741 (1961).

48 SC Res. 169. Id. 4, UN Doc. S/5002 (1961).

49 Supra note 47.

50 Clarke, supra note 45, at 68.

51 SC Res. 239. 22 Scor, Res. & Dec. 13 (1967).

52 SC Res. 226. 21 Scor, Res. & Dec. 13 (1966).

53 SC Res. 241. 22 Scor, Res. & Dec. 14 (1967).

54 For the texts of OAU declarations on mercenaries in 1964, 1967, 1970, and 1971, see Cesner & Brant, supra note 42, at 363-67.

55 33 and 34 Vict. ch. 90.

56 See the definition of “foreign State” contained in section 30 of the Act and the Diplock Report, supra note 1, para. 36.

57 Id. para. 52.

58 Id. para. 42:The practical difficulties of proving such an offence (i.e. an offence of enlistment) would mean that there could be very few successful prosecutions; and the chances of convicting the accused would depend not so much on his actual guilt as on his exceptional bad luck in there being available to the prosecution in his case sufficient evidence to convict him on his trial in this country.

59 Dumbauld, , Neutrality Laws of the United States, 31 AJIL 258 (1937).

60 18 U.S.C. §§958, 959.

61 Gayon v. McCarthy, 252 U.S. 171 (1920).

62 Wiborg v. United States, 163 U.S. 632 (1896).

63 In Afroyim v. Rusk, 387 U.S. 253 (1967), the Supreme Court by a 5-4 decision ruled a provision of section 1481 that deprived a person of his citizenship if he voted in a foreign election as unconstitutional by reason of the Fourteenth Amendment. Actual enlistment in a foreign force and the taking of an oath of allegiance may, however, amount to an effective voluntary renunciation of citizenship.

64 22 U.S.C. §§611 et seq.

65 Supra note 42, where Robert L. Keuch, Deputy Assistant Attorney General, described the relevant law and its adequacy. Reprinted in part in 71 AJIL 141 (1977). An amendment, introduced by Senator McGovern on June 16, 1977, to the Foreign Relations Authorization Act (H.R. 6689) makes it unlawful for any person within the United States, who is not legally authorized, to participate in any act of sabotage or any military or paramilitary operation against any foreign state with which the United States is not at war. 123 Cong. Rec. S9941 (daily ed. June 16, 1977).

66 Statement by Robert L. Keuch, supra note 65.

67 Crimes (Foreign Incursions and Recruitment) Bill 1977.

68 See the Second Reading speech by the Attorney-General, HANSARD (House of Representatives), 17 March 1977, at 342, for a brief explanation of the bill. The bill had not been passed when Parliament was dissolved in November 1977.

69 Oppenheim, supra note 20, at 261.

70 Supra note 21.

71 6 UST 3316, TIAS No. 3364, 75 UNTS 135, 47 AJIL Supp. 119 (1953).

72 See Van Deventer, supra note 2, for a more detailed indication of the status of mercenaries under the Geneva Conventions.

73 GA Res. 2465, para. 8. 23 GAOR, Supp. (No. 18) 5, UN Doc. A/7218 (1968).

74 24 GAOR, Supp. (No. 30) 5, UN Doc. A/7630 (1969).

75 2 5 GAOR, Supp. (No. 28) 7, UN Doc. A/8028 (1970).

76 28(1) GAOR, Supp. (No. 30) 142, UN Doc. A/9030 (1973).

77 Now Article 44. For the relevant debates, see Doc. CDDH/III/SR.33-SR.36 (1975).

78 Doc. CDDH/III/361/Add. 1, at 3. (June 7, 1976).

79 Id.

80 Supra note 6.

81 See the statement in the Report of Committee III, supra note 8, para. 27, and explanations of vote in both the committee and plenary. Doc. CDDH/III/SR.57 and Corr.1 and Doc. CDDH/SR.41 (1977). The most relevant article is Article 75 entitled “Fundamental guarantees.” (This was Article 65 prior to the adoption of the final text of the Protocol). Article 45 (formerly Article 42bis), which entitles a person who claims prisoner-of-war status to have his status adjudicated by a judicial tribunal, would also seem applicable if a “mercenary” were to claim prisoner-of-war status.

82 See the comments of Schwarzenberger in Terrorists, Hijackers, Guerrilleros and Mercenaries, 24 Current Legal Problems 257, 281-82 (1971). He remarks that exclusion of mercenaries from human rights protection while extending it to terrorists and guerrillas is “another milestone on the high road to violence unlimited.” Id. 282.

83 The USSR included a reservation to its signature and subsequent ratification of the 1949 Geneva Prisoner-of-War Convention which excluded war criminals from the protections of the Convention. See 75 UNTS 460 (1950) for text.

* The author is a Principal Legal Officer in the Australian Attorney-General’s Department. He was on study leave at the University of Virginia 1976-77, when much of the work for this article was undertaken. The views expressed are the personal views of the author and do not necessarily represent the views of the Australian Government or of the Attorney-General’s Department.

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