A mercenary is a person who takes part in an armed conflict, who is not a national or a party to the conflict, and 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" (Additional Protocol I to the Geneva Convention of August 1949).
As a result of the assumption that a mercenary is essentially motivated by money, the term "mercenary" frequently carries negative connotations, though that can be a compliment in some contexts. There is a blur in the distinction between a "mercenary" and a "foreign volunteer", when the primary motive of a soldier in a foreign army is uncertain. For instance, the French Foreign Legion and the Gurkhas are not mercenaries under the laws of war, since although they may meet many of the requirements of Article 47 of the 1949 Additional Protocol I, they are exempt under clauses 47(a)(c)(d)(e)&(f); some journalists describe them as mercenaries regardless.
The Protocol Additional GC 1977 (APGC77) provides the most widely accepted international definition of a mercenary, though not endorsed by some countries, including the United States. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, (Protocol I), 8 June 1977 states:
All the criteria (a - f) must be met, according to the Geneva Convention, for a combatant to be described as a mercenary.
According to the GC III, a captured soldier must be treated as a lawful combatant and, therefore, as a protected person with prisoner-of-war status until facing a competent tribunal (GC III Art 5). That tribunal, using criteria in APGC77 or some equivalent domestic law, may decide that the soldier is a mercenary. At that juncture, the mercenary soldier becomes an unlawful combatant but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered by GC IV Art 5. The only possible exception to GC IV Art 5 is when he is a national of the authority imprisoning him, in which case he would not be a mercenary soldier as defined in APGC77 Art 47.d.
If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. As mercenary soldiers may not qualify as PoWs, they cannot expect repatriation at war's end. The best known post-World-War-II example of this was on June 28 1976 when, at the end of the Luanda Trial' an Angolan court sentenced three Britons and an American to death, and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on July 10 1976.
The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" (APGC77 Art 47.b), they are not mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention (GCIII 4.1.4).
On 4 December 1989 the United Nations passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 1 contains the definition of a mercenary. Article 1.1 is similar to Article 47 of Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermin[e] the territorial integrity of a State;" and "Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation..." — under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.
Critics have argued that the convention and APGC77 Art. 47 are designed to cover the activities of mercenaries in post-colonial Africa and do not address adequately the use of private military companies (PMCs) by sovereign states.
The situation during the Iraq War and the continuing occupation of Iraq after the United Nations Security Council sanctioned hand-over of power to the Iraqi government shows the difficulty of defining a mercenary soldier. While the United States governed Iraq, no U.S. citizen working as an armed guard could be classified as a mercenary, because he was a national of a Party to the conflict (APGC77 Art 47.d). With the hand-over of power to the Iraqi government, if one does not consider the coalition forces to be continuing parties to the conflict in Iraq, but that their soldiers are sent by a State which is not a Party to the conflict on official duty as a member of its armed forces (APGC77 Art 47.f), then, unless U.S. citizens working as armed guards are lawfully certified residents of Iraq, i.e., a resident of territory controlled by a Party to the conflict (APGC77 Art 47.d), and they are involved in a fire-fight in the continuing conflict, they are mercenary soldiers. However, those who acknowledge the United States and other coalition forces as continuing parties to the conflict might insist that U.S. armed guards cannot be called mercenaries (APGC77 Art 47.d). See also privateer, Letter of marque, private military contractor.
A US Department of Defense interim rule (effective 16 June 2006) revises DoD Instruction 3020.41 to authorize contractors, other than private security contractors, to use deadly force against enemy armed forces only in self-defense. 71 Fed. Reg. 34826. Per that interim rule, private security contractors are authorized to use deadly force when protecting their client's assets and persons, consistent with their contract's mission statement. [One interpretation is that this authorizes contractors to engage in combat on behalf of the US Government.] It is the combatant commander's responsibility to ensure that private security contract mission statements do not authorize performance of inherently Governmental military functions, i.e. preemptive attacks or assaults or raids, et cetera.
Otherwise, civilians with US Armed Forces lose their law of war protection from direct attack, if and for such time as they directly participate in hostilities. On 18 August 2006, the US Comptroller General rejected bid protest arguments that US Army contracts violated the Anti-Pinkerton Act by requiring that contractors provide armed convoy escort vehicles and labor, weapons, and equipment for internal security operations at Victory Base Complex, Iraq. The Comptroller General reasoned the act was unviolated, because the contracts did not require contractors to provide quasi-military forces as strikebreakers. Yet, on 1 June 2007, the Washington Post reported: "A federal judge yesterday ordered the military to temporarily refrain from awarding the largest security contract in Iraq. The order followed an unusual series of events set off when a U.S. Army veteran, Brian X. Scott, filed a protest against the government practice of hiring what he calls mercenaries, according to sources familiar with the matter." Though Scott had filed the protest at the Court of Federal Claims, the court order was the result of other bidders intervening in the case. Scott did not submit a bid, however, when the bidders who did submit a bid tried to protest at GAO, their GAO bid protests were dismissed due to the fact that Scott had filed a case at the court and deprived GAO of further jurisdiction in the matter. Scott's case had been dismissed at GAO and was eventually dismissed at the court. The court order was in response to one of the legitimate contractors and Brian X. Scott had no role in obtaining that order.
The contract, worth about $475 million, calls for a private company to provide intelligence services to the US Army and security for the Army Corps of Engineers on reconstruction work in Iraq. The case, which is being heard by the US Court of Federal Claims, puts on trial one of the most controversial and least understood aspects of the Iraq war: the outsourcing of military security to an estimated 20,000 armed contractors who operate with little oversight''.<
Gurkhas in the British Army swear allegiance to the British monarch, operate in formed units of the British Army and abide the rules and regulations under which all British soldiers serve; similar rules apply to Gurkhas of the Indian Army. French Foreign Legionnaires are formed units of the French Foreign Legion, which deploys and fights as an organized unit of the French Army. This means that as members of the armed forces of Britain, India, and France these soldiers are not mercenary soldiers per APGC77 Art 47.e and APGC77 Art 47.f.
Private paramilitary forces are functionally mercenary armies, not security guards or advisors; however, national governments reserve the right to control the number, nature, and armaments of such private armies, arguing that, provided they are not pro-actively employed in front-line combat, they are not mercenaries. That said, PMC "civilian contractors" have poor repute among professional government soldiers and officers — the US Military Command have questioned their war zone behavior. In September 2005, Brigadier General Karl Horst, deputy commander of the Third Infantry Division charged with Baghdad security after the 2003 invasion, said of DynCorp and other PMCs in Iraq: These guys run loose in this country and do stupid stuff. There's no authority over them, so you can't come down on them hard when they escalate force... They shoot people, and someone else has to deal with the aftermath. It happens all over the place.
If PMC employees participate in pro-active combat, the press calls them mercenaries, and the PMCs mercenary companies. In the 1990s, the media identified four mercenary companies:
In 2004 the PMC business was boosted, because the US and Coalition governments hired them for security in Iraq. In March 2004, four Blackwater USA employees escorting food supplies and other equipment were attacked and killed in Fallujah, in a videotaped attack; the killings and subsequent dismemberment were a cause for the First Battle of Fallujah. Afghan war operations also boosted the business.
In 2006, a U.S. congressional report listed a number of PMCs and other enterprises that have signed contracts to carry out anti-narcotics operations and related activities as part of Plan Colombia. DynCorp was among those contracted by the State Department, while others signed contracts with the Defense Department. Other companies from different countries, including Israel, have also signed contracts with the Colombian Defense Ministry to carry out security or military activities.
The United Nations disapproves of PMCs (still, the UN hired Executive Outcomes for African logistic support work). Controversy arose elsewhere with the scandal of Dyncorp's pedophiliac sex trafficking in Bosnia during the Balkan war of the 1990s. The question is whether or not PMC soldiers are as accountable for their war zone actions as are the Bosniak armed forces. A common argument for using PMCs (used by the PMCs themselves; Sandline's Corp's whitepapers), is that PMCs may be able to help combat genocide and civilian slaughter where the UN is unwilling or unable to intervene.
In February 2002, a British Foreign and Commonwealth Office (FCO) report about PMCs noted that the demands of the military service from the UN and international civil organizations might mean that it is cheaper to pay PMCs than use soldiers. Yet, after considering using PMCs to support UN operations, the UN Secretary General, Kofi Annan, decided against it.
In October 2007 the United Nations released a two year study that stated, that although hired as "security guards", private contractors were performing military duties. The report found that the use of contractors such as Blackwater was a "new form of mercenary activity" and illegal under International law. Many countries, including the United States and the United Kingdom, are not signatories to the 1989 UN Mercenary Convention banning the use of mercenaries.
Many of the adventurers in Africa who have been described as mercenaries were in fact ideologically motivated to support particular governments, and would not fight "for the highest bidder". A good example of this would be the British South Africa Police (BSAP), a paramilitary, mounted infantry force formed by the British South Africa Company of Cecil Rhodes in 1889/1890 that evolved and continued until 1970.
Notorious mercenaries include:
In 1964. Congolese Prime Minister Moïse Tshombe hired "Colonel" Mike Hoare to lead a military unit called "5 Commando" made up of about 300 men most of whom were from South Africa. The unit's mission was to fight a breakaway rebel group called Simba. Later Hoare and his mercenaries worked in concert with Belgian paratroopers, Cuban exile pilots, and CIA hired mercenaries who attempted to save 1,600 civilians (mostly Europeans and missionaries) in Stanleyville from the Simba rebels in Operation Dragon Rouge. This operation saved many lives.
In May 1969, Carl Gustaf von Rosen formed a squadron of five light aircraft known as the "Babies of Biafra", which attacked and destroyed Nigerian jet aircraft on the ground.
It was planned, allegedly, by Simon Mann (a founder of Executive Outcomes) a former SAS officer. On 27 August 2004 he was found guilty in Zimbabwe of purchasing arms, allegedly for use in the plot. (He admitted trying to procure dangerous weapons, but said that they were to guard a diamond mine in DR Congo.) It is alleged that there is a paper trail from him which implicates Sir Mark Thatcher, Lord Archer and Ely Calil (a Lebanese-British oil trader).
The BBC reported in an article entitled "Q&A: Equatorial Guinea coup plot":
During the early stages of the Second Sino-Japanese War, the United States did not want to become overtly involved in the conflict (due to a non-aggression pact with Japan), yet felt an obligation to assist the Chinese in stopping Japanese aggression. So in 1941 the Roosevelt administration created the American Volunteer Group (AVG), better known as Flying Tigers. The pilots earned around $500 basic pay per month, plus an extra $400 per confirmed Japanese aircraft that was shot down, courtesy of the then Chinese President Chiang Kai-shek.
In the late Roman Empire, it became increasingly difficult for Emperors and generals to raise military units from the citizenry for various reasons: lack of manpower, lack of time available for training, lack of materials, and, inevitably, political considerations. Therefore, beginning in the late 4th century, the empire often contracted whole bands of barbarians either within the legions or as autonomous foederati. The barbarians were Romanized and surviving veterans were established in areas requiring population. The Varangian Guard of the Byzantine Empire is the best known formation made up of barbarian mercenaries. (see next section)
In England at the time of the Norman Conquest, Flemings (natives of Flanders) formed a substantial mercenary element in the forces of William the Conqueror with many remaining in England as settlers under the Normans. Contingents of mercenary Flemish soldiers were to form significant forces in England throughout the time of the Norman and early Plantagenet dynasties (11th and 12th centuries). A prominent example of these were the Flemings that fought during the English civil wars, known as the Anarchy or the Nineteen-Year Winter (AD 1135 to 1154), under the command of William of Ypres, who was King Stephen's chief lieutenant from 1139 to 1154 and who was made Earl of Kent by Stephen.
In Italy, the condottiero was a military chief offering his troops, the condottieri, to city-states. During the ages of the Taifa kingdoms of the Iberian peninsula, Christian knights like El Cid could fight for some Muslim ruler against his Christian or Muslim enemies. The Almogavars originally fought for Catalonia and Aragon, but as the Catalan Company, they followed Roger de Flor in the service of the Byzantine Empire. Spanish (Catalan) and German mercenaries also had prominent role in the Serbian victory over Bulgarians in the Battle of Velbuzd 1330.
During the later Middle Ages, Free Companies (or Free Lances) were formed, consisting of companies of mercenary troops. Nation-states lacked the funds needed to maintain standing forces, so they tended to hire free companies to serve in their armies during wartime. Such companies typically formed at the ends of periods of conflict, when men-at-arms were no longer needed by their respective governments. The veteran soldiers thus looked for other forms of employment, often becoming mercenaries. Free Companies would often specialize in forms of combat that required longer periods of training that was not available in the form of a mobilized militia. The White Company commanded by Sir John Hawkwood is the best known English Free Company of the 14th century. A Welshman Owain Lawgoch (Owain of the Red Hand) formed a free company and fought for the French against the English during the Hundred Years War, before being assassinated by a Scot by the name of Jon Lamb under the orders of the English Crown in 1378 during the siege of Mortagne.
It was then that the German landsknechts, colorful mercenaries with a redoubtable reputation, took over the Swiss forces' legacy and became the most formidable force of the late 15th and throughout the 16th century, being hired by all the powers in Europe and often fighting at opposite sides. St Thomas More in his Utopia advocated the use of mercenaries in preference to citizens. The barbarian mercenaries employed by the Utopians are thought to be inspired by the Swiss mercenaries.
At approximately the same period, Niccolò Machiavelli argued against the use of mercenary armies in his masterpiece The Prince. His rationale was that since the sole motivation of mercenaries is their pay, they will not be inclined to take the kind of risks that can turn the tide of a battle, but may cost them their lives. He also noted that a mercenary who failed was obviously no good, but one who succeeded may be even more dangerous. He astutely pointed out that a successful mercenary army no longer needs its employer if it is more militarily powerful than its supposed superior. This explained the frequent, violent betrayals that characterized mercenary/client relations in Italy, because neither side trusted the other. He believed that citizens with a real attachment to their home country will be more motivated to defend it and thus make much better soldiers.
About a third of the infantry regiments of the French Royal Army prior to the French Revolution were recruited from outside France. The largest single group were the twelve Swiss regiments (including the Swiss Guard). Other units were German and one Irish Brigade (the "Wild Geese") had originally been made up of Irish volunteers. By 1789 difficulties in obtaining genuinely Irish recruits had led to German and other foreigners making up the bulk of the rank and file. The officers however continued to be drawn from long established Franco-Irish families. During the reign of Louis XV there were also a Scottish (Royal-Écossais), a Swedish (Royal-Suédois), an Italian (Royal-Italien) and a Walloon (Horion-Liegeois) regiments recruited outside the borders of France. The foreign infantry regiments comprised about 20,000 men in 1733, rising to 48,000 at the time of the Seven Years' War and being reduced in numbers thereafter.
During the American Revolution, King George III of England, hired German mercenary soldiers from some of the German principalities to supplement his Royal Army. Although the German mercenaries came from a number of states, the majority came fro the German state of Hesse-Kassel. This resulted in their American opponents referring to all of King George's German mercenaries as "Hessians", whether the Germans were actually from Hesse-Kassel or not.
The Spanish Army also made use of permanently established foreign regiments. These comprised three Irish regiments (Irlanda, Hiberni and Ultonia); one Italian (Napoles) and five Swiss (Wimpssen, Reding, Betschart, Traxer and Preux). In addition one regiment of the Royal Guard was recruited from Walloons. The last of these foreign regiments was disbanded in 1815, following recruiting difficulties during the Napoleonic Wars. One complication arising from the use of non-national troops occurred at the Battle of Bailén in 1808 when the "red Swiss" (so-called from their uniforms) of the invading French Army clashed bloodily with "blue Swiss" in the Spanish service.