Following Sarah Knuckey and Ryan Goodman’s post on U.S. mercenaries in Yemen, I’d like to provide a bit of international legal background to the urgent discussion of whether legal gaps exist in the regulation of mercenaries, and if so, how to fill them.

First, Sarah and Ryan are spot on in saying that U.S. private contractors who kill abroad for hire are murderers, pure and simple. There’s no ambiguity about their culpability under U.S. law. While a state’s military forces have a license under the international law of armed conflict to kill enemy combatants in war, there is no such “privilege of belligerency” for non-state fighters, including private contractors. Moreover, outside of war (alternatively called “armed conflict,” the definition of which is more or less specific in international law), there’s no privilege of belligerency for anyone. Even within war, and even for a combatant/member of a state’s armed forces, targeting civilians is the war crime of murder.

But acting as a mercenary, that is, fighting in someone else’s war for profit, is not per-se prohibited by international law. There is an international treaty prohibiting recruitment, use and financing of mercenaries, but only 35 nation-states, and not the U.S., are parties. More importantly, the treaty is quaint. Traditional mercenarism has morphed into a private, multinational military industry worth hundreds of billions of dollars (yes, that’s with a “b”). The treaty, while still reflecting essential principles, is insufficient. For this reason, the U.N Human Rights Council has established an inter-governmental working group to consider the need for, and the content of, binding international legal regulation of the private military and security contracting industry. Western countries, including the United States, are slow-walking the process, due either to general “treaty fatigue,” or to protect the industry, or both.

In the meantime, and despite the fact that murder by Americans is murder, whether committed at home or abroad, there are legal gaps that Congress could fill. At the very least, legislation could prohibit the recruitment, use and financing of mercenary activity, using the definition of mercenary found in the international treaty.  (This is what the U.S. would be obligated to do, were it a party to the treaty.) Other aspects of the private military and security industry that cry out for regulation include:

  • Qualifications for employment to keep out violent criminals and human rights violators;
  • Training to assure compliance with international human rights law and international humanitarian law (the law of armed conflict);
  • Scope of permitted and prohibited activities; and
  • Accountability and remedies, including jurisdiction for offenses committed abroad and international judicial cooperation.

These are aspects of proposed international regulation that my former U.N Working Group on Mercenaries has advocated for years. We conducted detailed research, and reported to the Human Rights Council and to the General Assembly, on the state of national legislation around the world (poor to nonexistent) and have drafted proposed text for an international treaty to fill the gaps.

There are many, increasingly worrisome wake-up calls, in addition to the case referenced by Sarah and Ryan. For example:

While we await international and congressional responses that may never come, there is much that existing law permits and requires by way of regulation and accountability, such as the application of garden-variety criminal laws to Americans’ conduct beyond U.S. borders.

There’s also the knock-on effect of U.S. misapplication of international law to justify its overly-broad targeting and detention practices and its illegal treatment of detainees, post 9/11. Applying permissive law-of-war rules for targeting even outside of war, mislabeling civilians as combatants in war, and abuse of detainees come readily to mind. Ryan and Sarah’s piece, for example, notes that the contractors made an effort to distinguish between “out and out terrorists” and others they targeted, suggesting the contractors thought it was ok to kill terrorists. Not true. First, “terrorist” is not a legal designation. The term has no precise meaning in international law. Even the proper designation of individuals as “terrorists” under domestic law provides no basis for determining that they meet the criteria for targeting under international human rights law or, in the context of armed conflict, humanitarian law.

In the U.S., environmental and animal rights activists have been designated by the FBI, and prosecuted, as “domestic terrorists.” Whether or not this is wise as a matter of law or policy, no rational person would argue that these people should be subject to summary, extrajudicial execution. Second, as noted above, even if individuals are targetable under the laws of armed conflict, it would be murder for U.S. contractors who are “unprivileged belligerents” (or what the U.S. called “unlawful combatants” when referring to the Taliban or al-Qaeda) to conduct such targeting.

With all the smoke and mirrors the U.S. has thrown up about international law since 9/11, it’s hardly surprising that these modern mercenaries could be confused about whether killing people is murder. That’s why we need a good bit more international and domestic regulation to straighten them out and bring this behemoth industry to heel.

Photo: Wikipedia