Human rights versus corporate rights: Mercenary activity in the 21st century

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While mercenaries have always been part of our political landscape, their position has varied considerably over time. From ancient times wherein it was normal and acceptable to participate in a war purely for economic gain, to the Middle Ages during which soldiers of fortune were no longer “socially acceptable,”(2) we seem to (once again) be at a crossroads on the issue in the 21st century.

The difference between this era in comparison to previous eras is that the use of mercenaries is neither accepted nor completely condemned. We are witness to a grey area in which mercenaries are, for the most part, outlawed (by international legal norms), but tacitly accepted by the modern nation state as an inevitable part of political and corporate systems.

The alleged use of mercenaries in the Libyan civil war has seen renewed attention being placed on the topic of mercenaries. The fact that it has received renewed attention is perhaps unfortunate seeing as the issue has had great relevance over the past decade. In fact, far from becoming redundant, the practise has gained intense momentum in our times, which is rather strange, as this is the very same era hailed as one of progress, evolution, and civilisation, and in which a phenomenon as primal as mercenarism should surely have no place.

This paper explores the contemporary use of mercenaries, the way in which the matter complicates political and legal landscapes, as well as the various implications of the practise on human rights.

The position of mercenaries under international law

Anyone partaking in hostilities for private gain (paid for by a party to the conflict), who is not a national or resident of any party to the conflict, is classified as a mercenary under international law.(3) In light of this definition, it should be clear that “security contractors” who engage in combat are indeed mercenaries. Once there is a shift away from this debate and seemingly grey area, there may be greater prospects for the enforcement of international law against such individuals. Furthermore, it must be noted that mercenaries are classified as unlawful combatants under international law.(4) While this means that they are still entitled to a minimum standard of humane treatment, they may not be afforded prisoner of war status in the event of capture.

The issue of accountability

One of the biggest dilemmas when it comes to mercenaries is the issue of accountability in cases of crimes and particularly those crimes that constitute gross human rights violations. It is difficult enough to try regular soldiers for atrocities perpetrated on civilians, but nearly impossible when it comes to mercenaries.(5) By way of example, contractors in Iraq are not subject to Iraqi or United States (US) law.(6) This is also the case when mercenaries have been implicated in incidents constituting war crimes or crimes against humanity under the four Geneva Conventions.

Seeing as the constraints of the international legal system may bar successful prosecution of mercenaries, a possible way forward to curb the problem (it is a given that total elimination of the practise is not possible at this point in time) is for individual states to take action. In 1998, South Africa effectively outlawed mercenary firms when it brought into force the “Regulation of Foreign Military Assistance Act.” The Act specifically stated the circumstances under which “assistance” may or may not be offered to foreign states. If such law has not done away with mercenary companies completely, then in the least it has made their operating out of South Africa a great deal more difficult. This is also the case with the proposed ban on mercenary firms, which the Swiss Government has been considering.(7)

Higher stakes: Mineral concessions and mercenarism

In Nigeria, we see the grave impact of mercenaries on human rights. Here, we have an armed force, sponsored by a petroleum company – Royal Dutch Shell – and sanctioned by the Nigerian Government. Operating under such auspices undoubtedly creates a dire state of affairs when we take into consideration the accountability of such forces in case of crimes. To note just one example, in 1995 several activists who were engaged in peaceful protests against Shell’s activities (and more specifically, the devastating environmental impact of the company’s activities in Nigeria’s Ogoniland region) were detained and later executed by a “special military tribunal.” Although Royal Dutch Shell denied any involvement and wrongdoing with regard to this case, the matter was settled 13 years later with an out of court settlement, in which the petroleum company paid out ZAR 123 million (US$15,5 million) to the families of those who were executed.(8) The allegations brought against Shell over the years have included facilitating the capture of activists (most notably the capture of Ken Saro-Wiwa), raids on villages wherein such activists reside, and even the fuelling of civil conflict.(9) Human rights violations spill over even further: environmental rights are abused and locals have neither the funds nor the necessary weight against the Government to change a situation that is destroying their region. While a number of human rights groups have recognised the plight of the Ogoni people in this regard, the Nigerian Government itself sides with the company rather than the people.(10)

South African-founded company, Executive Outcomes, tried to legalise and formalise the business of mercenaries, with some of its members going so far as to refer to company activities as peacekeeping missions, akin to those undertaken by the UN, who are present in volatile regions to bring stability and peace.(11) The company, which was involved in extensive work throughout Africa, prided itself on certain company rules. One such rule was to only work with the “legitimate [G]overnments” of their host countries. Through certain, simple questions, we easily note the feebleness in the firm’s attempts to sugar-coat the nature of their work: who decides which Governments may be legitimate or not? What takes place in the event that such legitimate Government is involved in human rights abuses against their own citizens? What if such a Government has lost legitimacy amongst its own people?

In the early 1990s the company was hired by the Sierra Leonean Government to assist in quelling brutal rebel activity against the Government and civilians alike. While the firm achieved tactical success (in that they managed to subdue the rebel force) on behalf of the Government, this “success” needs to be viewed in a wider context. Aside from large sums of money, Executive Outcomes was awarded diamond mining concessions in Sierra Leone. This naturally drew them into more intimate conflict with the rebels, who were also vying for control of parts of the country’s diamond industry.(12) But the most important concern here is an ethical one. International law recognises the rights of nations to “sovereignty over natural resources.”(13) Such rights are closely tied to the self-determination of a country and its people. Moreover, this has special significance on the African continent given the history of pillaging to which most, if not all, African countries were subject under colonial rule. It must be noted at this juncture that the extraction of natural resources is a clear and serious violation of these rights, and that it remains a violation against the people whether supported/permitted by the Governments of such countries or not.

The case of Iraq

The use of mercenaries in Iraq has perhaps received the most public attention over the past 10 years. The use of “private military companies” has become widespread with the scope of mercenary activity becoming increasingly broader. By 2005 alone, the number of mercenaries operating in Iraq stood at 48, 000,(14) indicating that business was indeed booming for this sector – a mere two years after the invasion of Iraq. Implicitly acknowledging the illegitimate nature of their work, American-owned Blackwater also made attempts (similar to those of Executive Outcomes) to paint the picture in a different light. So crucial was this to their business that the company actually hired lobbyists in Washington to market the idea in a different way – as a brand – by eliminating the use of the word “mercenary” to make it more acceptable to the public.(15) Enter the age of “security contractors.” The activities of mercenaries in Iraq now include personal security services, the collection of intelligence on behalf of regular armies, direct participation in armed combat, protection of convoys,(16) and the interrogation of prisoners (which often translates into torture of prisoners), also on behalf of regular armed forces.(17) Such activities have given rise to shocking numbers of atrocities (such as the interrogation and severe torture of inmates at Abu Ghraib prison in 2004) and civilian deaths. Perpetrators in these instances are not answerable for such crimes.

In conclusion

Professor Michael Niman, in a piece detailing the dangers of this growing trend, summed the matter up very simply: “In defence of common English, I’d like to make one point clear: a contractor is someone who builds you a new bathroom. A heavily armed person who threatens, tortures or kills people for a living is a mercenary.”(18) Niman, here, highlights the complacency of the international community on this issue. By allowing this dubious practise to transform into an actual industry, we have conceded defeat in terms of human rights law, implying that corporate interests are of greater importance. Furthermore, we see a huge disparity between legal theory and practise when it comes to the issue of mercenaries. Mercenaries are held to be unlawful combatants under international law. However, the failure to hold them accountable for their crimes, along with the tacit acceptance of their existence and activities by the international community means that they will only continue along the path of impunity. In light of this, it is time for legal bodies (possibly in conjunction with bodies such as the United Nations or African Union) to take firmer steps towards the enforcement of international law when it comes to illegal combat activity.

NOTES:

Consultancy Africa Intelligence (CAI) is a South African-based research and strategy firm with a focus on social, health, political and economic trends and developments in Africa. CAI releases a wide range of African-focused discussion papers on a regular basis, produces various fortnightly and monthly subscription-based reports, and offers clients cutting-edge tailored research services to meet all African-related intelligence needs. For more information, see http://www.consultancyafrica.com
(1) Contact Raeesah Cassim Cachalia through Consultancy Africa Intelligence’s Conflict and Terrorism Unit ( [email protected] This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).
(2) Botha, C., 1999. From mercenaries to private military companies: The collapse of the African state and the outsourcing of state security, South African Yearbook of International Law, 24, pp.133-147.
(3) Additional protocol I to the Geneva Conventions, Article 47.
(4) Ibid.
(5) The court martial system has proven to be a feeble attempt at maintaining order and the rule of law during times of war.
(6) ‘Blackwater and Haditha: A Tale of Two Atrocities’, Uruknet, 19 October 2007, http://www.uruknet.de.
(7) ‘Swiss government proposes ban on mercenary firms’, Forbes, 12 October 2011, http://www.forbes.com.
(8) ‘Shell settles Nigeria deaths case’, BBC News, 9 June 2009, http://news.bbc.co.uk
(9) ‘Shell fuelled human rights abuses in Nigeria – NGO’, Reuters Africa, 3 October 2011, http://af.reuters.com.
(10) ‘Shell oil paid Nigerian military to put down protests, court documents show’, The Guardian, 3 October 2011, http://www.guardian.co.uk.
(11) Rubin, E., ‘Mercenaries’, Crimes of War, http://www.crimesofwar.org.
(12) ‘Diamond Hunters Fuel Africa’s Brutal Wars’, Washington Post, 16 October 1999, http://www.washingtonpost.com.
(13) General Assembly resolution 1803 (XVII) of 14 December 1962; ‘Permanent sovereignty over natural resources’, Office of the United Nations High Commissioner for Human Rights, http://www2.ohchr.org; The African Charter on Human and Peoples’ Rights, Article 21.
(14) Klein, N., 2007. The Shock Doctrine: The Rise of Disaster Capitalism. London: Allen Lane.
(15) Ibid.
(16) Williamson, J., ‘Chapter 7: Status and obligations of mercenaries in private military companies under international law’, in The Elimination of Mercenarism in Africa. Pretoria: Institute for Security Studies.
(17) ‘US military in torture scandal’, The Guardian, 30 April 2004, http://www.guardian.co.uk.
(18) Niman, M., ‘Strange Fruit in Abu Ghraib: The Privatisation of Torture’, The Humanist, July/August 2004, http://www.thehumanist.org.



Pic: Executive Outcomes mercenaries in Sierra Leone in 1995.