Foreign Fighters, Mercenaries, and Private Military Companies Under International Law

Editor’s Note: This is the third post in a miniseries about the International Committee of the Red Cross’s newly released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. Other pieces in the series can be found here, here, and here.

Over the last week, I’ve been examining some of the key questions left open by the International Committee for the Red Cross’s newly released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts here at Just Security. Today, I’m going to continue my exploration, with a focus on the report’s discussion of international humanitarian law (IHL) and foreign fighters, mercenaries, and private military and security companies.

Foreign Fighters and Foreign Terrorist Fighters

The ICRC report acknowledges the increasing alarm with which States view the security challenges posed by their nationals who travel abroad to fight alongside a non-State armed group in the territory of another State, and who may then return with increased skills, connections, and motivation to recruit and to wreak havoc at home. Uncertainty about the origins, travels, training, and planning abroad done by the Paris terrorists, whether in Syria, Belgium, or elsewhere, has led to an explosion of questions: What is being done to monitor, intercept, punish, and/or rehabilitate foreign terrorist fighters? What is being done to prevent the risk they pose from joining in the first place? And how should the “international community” respond to the vast and tragic refugee crisis spawned by conflicts in Syria, Iraq, Afghanistan, and elsewhere? These are all important questions that others are debating, and that I will leave for discussion elsewhere.

What I will address, and what is directly relevant to the ICRC report, is the need to properly define our terms in order to assure that we are, in fact, focusing on what we want to and what we think are. In the realm of vocabulary, it is odd that the ICRC report refers to “foreign fighters” and not “foreign terrorist fighters,” particularly because the ICRC also correctly notes that fighting in an armed conflict (including one abroad) is not per se a violation of law, while engaging in terrorist acts is, by definition, criminal.

It is also odd because the report specifically references the UN Security Council framework under which States are mandated to deal with the phenomenon. The operative measure is UN Security Council Resolution 2178, the adoption of which was personally spearheaded by President Obama in 2014. UNSCR 2178 mentions the term “foreign terrorist fighter” 54 times. It mentions “foreign fighter” zero times. It requires States to take a number of specific measures to prevent and punish the actions of “foreign terrorist fighters,” not “foreign fighters.”

In fairness, it’s logical to assume that both foreign fighters and foreign terrorist fighters pose security risks. However, the failure to distinguish between the two in the report is troublesome precisely because States — especially, but not exclusively, ones that make the “most authoritarian and repressive” list — are using 2178 to justify repressive measures not just against foreign terrorist fighters, and not just against foreign fighters, but against all manner of people engaged in legitimate political, religious, and cultural activities the State doesn’t like. The September 2015 report on implementation of Resolution 2178 by the UN Counter-Terrorism Committee Executive Directorate, for example, notes concerns that have been raised about “heavy-handed law enforcement responses” and “torture, arbitrary detention, lack of access to a defense lawyer, and other fair trial violations” in several Central Asian countries.

US laws and policies have helped encourage conflation of these categories. I previously addressed lack of discipline in the vernacular that has informed US law and practice: for example, the false assertions that a non-State fighter who attacks US troops is necessarily a terrorist and that a terrorist is necessarily an “unlawful combatant” in armed conflict. This state of affairs is of a piece with a wrongful conflation of “foreign fighter” and “foreign terrorist fighter.” In addition, the lack of transparency by the US about its interpretation and application of international law to its targeted killings (referred to by some as “assassinations”), whether or not they are conducted by drones, also sows confusion with respect to who is and is not a fighter, as well as who is or is not a terrorist. Likewise, the vague and overly broad US “material support” laws have been used to disproportionately prosecute (often young, disaffected, and vulnerable) Muslims led by undercover agents and informants to engage in criminal acts that they likely would not have otherwise committed. While repressive governments leverage their obligations under UNSCR 2178 to take legislative and policy measures against people on the basis of ethnicity, religion, and political activity, it is difficult for the US to complain, given its own impeachable conduct in the same vein.

Mercenaries

The ICRC report also addresses the concept of mercenarism with respect to foreign fighters, noting that “(u)nder IHL, the notion of ‘mercenary’ only exists” in international armed conflict (i.e., conflict between two or more States). But the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, as well as the Organisation of African Unity’s Convention for the Elimination of Mercenarism in Africa, and arguably customary international law, create no such limitation. Thus, contrary to the ICRC’s assertion, foreign fighters and (by extension) foreign terrorist fighters may indeed qualify as mercenaries even if the armed conflict is non-international (involving a non-State armed group) and if they otherwise fit the criteria to be a “mercenary.” Most importantly, those criteria dictate that fighters are in it primarily for the money and are not nationals of any party to the armed conflict. For foreign terrorist fighters, this would merely add an additional basis to punish their already unlawful activity. But for mere foreign fighters (i.e., those not engaged with terrorist groups or activities) it would turn arguably lawful activity into a crime. All this said, and despite UNSCR 2178 requiring States to take measures only against foreign terrorist fighters, there is no international legal bar to States criminalizing both engagement by their citizens in foreign wars, and travel for the purpose of doing so, even if they do not meet the definition of “mercenary.”

Private Military and Security Companies

The ICRC report also addresses the substantial increase over the last decade in the use of private military and security companies (PMSCs) and the implications for the protection of civilian populations. As an initial matter, however, I should note that the report’s treatment of PMSCs is appropriately quite apart from its discussion of mercenaries. While there may be overlap between the two, it would be rare for PMSCs to fit all the definitional elements of mercenarism. I should also note that PMSCs do not operate exclusively in armed conflict contexts. Their operations may run the gamut from “mall cop” to war fighting to running security for extractive industry operations in developing States, where corruption, ethnic strife, authoritarian governance, and weak civil society mechanisms can conspire to put local populations at great risk.

Concerns about the risks that PMSCs pose to human rights were most notoriously highlighted by the massacre of civilians by Blackwater private military contractors in Nissour Square, Baghdad in 2007, and the tortuous road to accountability that has followed. PMSCs are often outside the chain of military command that is presumably trained to apply IHL. They may also be beyond the reach of any infrastructure for enforcing it. Even if subject to military or civilian justice, their activities must be strictly regulated, especially in the use of force and detention operations. The ICRC notes the existence of several “complementary” international initiatives to regulate PMSCs, emphasizing one in particular, but omitting what may turn out to be the most important one of all.

The ICRC understandably provides greatest detail on the Montreux Document, the Montreux +5 Conference, and the Montreux Document Forum. This joint Swiss/ICRC initiative purports to create no new law, but merely gathers IHL rules and proposed “best practices” applicable to PMSCs operating in armed conflict and post-conflict situations. The Montreux +5 Conference in 2013 gave rise to the Montreux Document Forum, which brings States and international organizations together to implement and promote the Montreux Document.

The ICRC also takes note of discussions taking place within the UN on a possible international convention to regulate PMSCs. (Full disclosure: I am a member of the UN Working Group on Mercenaries that is responsible for a draft convention presently under discussion.) What the ICRC doesn’t note is that these talks are stalled, with the US and the EU (not coincidentally, the States from which PMSCs operate) opposing international regulation and many other States (not coincidentally, those in which PMSCs operate) supporting international regulation.

Oddly, the ICRC fails to mention the International Code of Conduct for the industry. The ICoC is a voluntary “multi-stakeholder” mechanism. Its Association (ICoCA) is comprised of representatives from the industry, from States, and from Civil Society. The ICoCA website shows 87 PMSC members to date. While the ICoC is voluntary, there is some hope that States will increasingly make membership in good standing a condition of registering to do business in the State and competing for government contracts, as is already the case under Swiss law. It remains to be seen whether the fledgling mechanism will be able to impose meaningful measures relevant to licensing, registration, vetting, and training of personnel; limitations on the scope of permissible activities; and most importantly, accountability for violators and remedies for victims. Because it is voluntary, and (some say) dominated by industry, there is reason for skepticism.

Since the Montreux process creates no new binding rules, and since the drive for new binding international regulation of the industry is at a standstill, it might appear that the ICoC is the most significant of these three frameworks for regulation and accountability of PMSCs. There’s no telling whether the ICRC’s failure to mention the ICoC is a sign of dismissal, or something less meaningful. What is certain, though, is the need for greater international regulation. 

About the Author(s)

Gabor Rona

Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School