Studying policies regarding mercenaries and militias is first and foremost a difficult task because there are little consistent or truly enforced policies pertaining to them. Both groups operate in a sort of grey area and their situations and actions are often judged on a case by case basis. Though mercenaries and militias have been around for centuries, policies from the late 80s onward seem to be most relevant because this is the time in which these groups took on new prominence. (Having said this I will now proceed to talk about a policy from 1977, but the majority of policies discussed will be more current.)
The 1977 Additional Protocols, an addition to the policies of the Geneva Conventions of 1949, define a mercenary quite strictly and declared anyone found to be a mercenary would be deprived the status of Prisoner of War.1 This policy was unable to actually restrain mercenary activity for two main reasons. First, the definition of “mercenary” was so narrow that very few individuals actually qualify. Second, without the status of POW, under this policy mercenaries are treated as “non-combatants” and are guaranteed other protections.
In 1989, the UN held The International Convention against the Recruitment, Use, Financing and Training of Mercenaries and loosened the definition of “mercenary” and also harshened the punishments for mercenary activity.2 UN policy on mercenary use was further strengthened under the General Assembly resolution 58/162 in 2003.3 This policy specifically dealt with mercenary use in relation to human rights–the illegality of using mercenaries to overthrow governments or to inhibit national liberation movements. This resolution was sparked by, and often mentions, the use of mercenary groups in Africa, which the General Assembly deemed threatening to “constitutional order of these countries and the exercise of the right to self-determination of their peoples” (40).
More recently, the large-scale use of mercenaries in Iraq has incited the creation of new and specific policies on the use of Private Military Contractors (PMCs). The most notorious of these policies is Order 17. This order
is a document little-read today, yet it essentially granted to every foreigner in the country connected to the occupation enterprise the full freedom of the land, not to be interfered with in any way by Iraqis or any Iraqi political or legal institution. Foreigners -- unless, of course, they were jihadis or Iranians -- were to be "immune from any form of arrest or detention other than by persons acting on behalf of their Sending States," even though American and coalition forces were to be allowed the freedom to arrest and detain in prisons and detention camps of their own any Iraqis they designated worthy of that honor.4
This description of Order 17 featured on CBS News may not use the most neutral language, but it shows the new policy accepted by the US, which allows mercenaries, as well as other foreigners in Iraq, immunity for local law. This article goes on to point out that the order offers further protection for PMCs in Iraq: "Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their contracts ... Contractors shall be immune from Iraqi legal processes with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto ..." This order is one of the most highly contested policies on mercenary use today.
Discussion over Order 17 is especially heated because of the human rights violations that Blackwater, a company often used by the US to provide PMCs, as well as other companies like it have been accused of committing on Iraqi soil. There is major concern over the fact that “analysis of Blackwater's own internal reporting since 2005...found 195 shooting incidents in the last two years, including 160 in which Blackwater employees fired the first shot”.5 The issue with this is that contradicting policies have made it nearly impossible to figure out who has jurisdiction over this issue. Order 17 has ruled Iraqi courts invalid to handle these possible human rights violations, Blackwater has argued that it cannot be tried in civilian court because it is part of the US Total fore, the company has also argued that it cannot be tried in military court because its employees are not official soldiers, finally the ICC will never see the case because the US has not ratified it. (Other companies serving similar functions have followed Blackwater’s lead on evading legal repercussions.) There has been some slight movement towards easing the protections of Order 17, but they have not been sweeping changes. Even before Order 17 there were issues with how to prosecute PMCs for human rights violations. In the 90s Dyncorp contractors hired by the UN were implicated in a sex-trafficking operation, but there was debate as to whether they had diplomatic immunity as UN employees.
The actual policy about jurisdiction over PMCs from or working for the US breaks down as follows: “Contractors working directly for the Pentagon fall under a separate law, the Military Extraterritorial Jurisdiction Act, whereas those serving with American troops may be prosecuted under another law, known as the Uniform Code of Military Justice. But a strong American distaste for trying civilians under military law has led to only one indictment.”6 One major issue with these policies is that PMCs working for private companies as security guards, which is quite common, is not addressed.
Another issue with the regulation of the use of mercenaries is that the line between a security contractor actually working as a guard and a PMC working as a mercenary is blurred. This issue is nicely articulated by José L. Gómez del Prado, the Chairperson of the UN Working Group on the Use of Mercenaries:
In accordance with international humanitarian law if they do not participate in the hostilities they are considered civilians and would have the right to be protected. However, the moment they participate in the hostilities they are not anymore considered civilians and therefore lose international protection. However, how can these “private security guards” be considered civilians when they are heavily armed and ready to take part in direct hostilities? The fact that their statute is unclear; that they are neither civilians nor combatants; that they are operating in a grey area; and that they may be easily assimilated to mercenaries, paramilitaries, irregular fighters or “unlawful combatants”, is undermining the international humanitarian law and the Geneva Conventions (11-12).7
Without the ability to clearly define which contractors are mercenaries, the policies on how to govern their use is nearly impossible to apply.
Finally, there is the issue with the use of mercenaries on US soil. The use of Blackwater PMCs during the relief efforts after Hurricane Katrina brought this debate to light. The contractors were being used both by the government and by private companies for security, the same uses they had in Iraq and Afghanistan. Blackwater attained a $73 million dollar FEMA contact to help with the relief effort.8 It is of major concern that PMCs are used domestically and there is not clear policy on how they will be held accountable for their actions.
As with mercenaries, there are not clear policies regarding the use of militias. There are plenty of policies which have tried to control mercenary use, but they are contradictory or ineffective. With militias, on the other hand, there is a more blanketed lack of policy.
Militia use was mentioned in the policies that came out of Geneva in 1949, but only briefly. The Convention Relative to the Treatment of Prisoners of War includes militia members as possible POWs in “countries where militia or volunteer corps constitute the army, or form part of it.”9 This is a very specific policy, but it sets a large precedent: under certain conditions, militias can be treated like formal armies. This is one extreme on the spectrum of the status of militias. When a militia does not constitute all or part of the army they may be called rebel groups, a common term for militias in Africa, or even terrorist organizations.
In Iraq, US policy towards militias has varied greatly. Though the US has called for the ethnic and sectarian militias in Iraq to dissolve, they not only persist, but some “are on a path to being recognized as part of Iraq’s security apparatus.”10 According to the Council on Foreign Relations, the persistence of militia presence in Iraq is alarming because it could lead to the country being governed by fragmented groups rather than a US-trained army. Some of these militias are sanctioned by the Iraqi government, while others are not–further demonstration of the inconsistent policies about militia use. The US opposes unsanctioned militias, but again this is not a clear or decisive policy about the existence of militia groups. Outside of Iraq, the US has deemed many militia groups around the world foreign terrorist organizations. These organizations are essentially armed groups, armed in various ways, whose “terrorist activity or terrorism...threaten[s] the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.”11 The definition of what qualifies as a foreign terrorist organization is very loose and could easily overlap with groups deemed militias. In these situations, militia groups would be subject to policies relating to foreign terrorism.
Finally, there are US policies specific to domestic militias. The FBI defines these groups as follows:
Like many domestic terrorism groups, militia extremists are anti-government. What sets them apart is that they’re often organized into paramilitary groups that follow a military-style rank hierarchy. They tend to stockpile illegal weapons and ammunition, trying illegally to get their hands on fully automatic firearms or attempting to convert weapons to fully automatic. They also try to buy or manufacture improvised explosive devices and typically engage in wilderness, survival, or other paramilitary training.12
The government does not view “militia extremists” as legitimate and works to shut down such organizations.
All in all, the policy regarding both mercenaries and militias is confused or lacking. It is very difficult for such groups to be controlled or tried in courts because there is no consensus on what rules they must abide by and who has jurisdiction over them.
7 “Private Military and Security Companies and Challenges to the UN Working Group on the Use of Mercenaries” (download at www.havenscenter.org/files/JLGomez%20del%20Prado-Conf%20Paper_0.doc)