The Role of Mercenaries and Private Military Contractors in Armed Conflict

The Role of Mercenaries and Private Military Contractors in Armed Conflict

..if one holds his state on the basis of mercenary arms, he will never be firm or secure; because they are disunited, ambitious, without discipline, unfaithful; gallant among friends, vile among enemies; no fear of God, no faith with men; and one defers ruin insofar as one defers the attack; and in peace you are despoiled by them, in war by the enemy”

When Machiavelli wrote his masterpiece, The Prince in 1513, his attitude towards hired soldiers, or mercenaries, was not very positive as the quote above illustrates. Throughout history, such 'soldiers of fortune' that are fighting for personal gain have been frowned upon. One of the reasons is the monopoly of force that the state is supposed to possess: “the modern state arose because it successfully upheld a claim to the monopoly of legitimate use of physical force in the enforcement of its order”.

However, ever since the end of the cold war, a rather new phenomenon occurred on the world stage: private military firms (PMF's). Such firms respond to the processes of privatization and the erosion of state authority due to globalization. PMF's “specialize in the provision of military skills, including combat operations, strategic planning, intelligence, risk assessment, operational support, training and technical skills”. The massive reduction in the size of state militaries after the Cold War left more than 6 million former soldiers unemployed, and rehabilitation programmes often failed. These ex-soldiers therefore organized themselves into legal commercial companies and started to sell the skills that they had to make profit: the skills of warfare. In effect, the new wars and new threats that emerged when the bipolar cold war system collapsed, such as terrorism and low-intensity ethnic conflicts provided the market of force with a firm demand leading these firms to success.

Whereas the production of weapons and other artillery has long been outsourced, the physical use of force was believed to be the monopoly of the state. On the one hand, such practices of PMF's erode this strict distinction, and as a result undermine the sovereignty of the state. The debate about privatization is moved further than ever before. On the other hand, governments are using the companies for their own benefit and intentionally move certain aspects of security to the market as it is more cost efficient, or of a higher quality. As Kevin O'Brien writes, "by privatizing security and the use of violence, removing it from the domain of the state and giving it to private interest, the state in these instances is both being strengthened and disassembled." PMF's nowadays operate in more than 50 countries, and had an estimated revenue of 200 billion in 2010. The British American Security Council puts it like this: “if there were an Oscar for combat participants, PMF's would certainly win the nomination for best supporting act”.

The question is, as increasingly more vital tasks of securitization are moved from the public realm to the private market and this movement is likely to continue and even to grow, whether the activities of such PMF's should be seen as classic mercenary activities or not. Whether this question is answered with yes or no, international consensus, let alone a system of international regulation is lacking. This is problematic as these companies have an increasing role to play in the provision of international security. If international stability and order is more and more privatised, who then can be held accountable? As the United Nations Security Council (UNSC) you are responsible for the maintenance of international peace and security. Up until now, international initiatives related to mercenary activities have focussed on issues related to human rights only. It is up to you, to fill this gap in international security.

Historical overview and contemporary context
In order to adequately situate the debate around mercenaries and PMF's, this section of the background paper swiftly gives an historical overview of the use of mercenaries in both historical and more contemporary cases.

Development of private violence
A lot of the literature concerning PMF's underlines that the concept of outsourcing violence is not something new. They state that hiring outsiders to fight a battle is as old as war itself. In fact, a strict monopoly of force was never possessed by the state in the first place. The specialization in warfare as a division of labour is one of the first to find in human society. The idea of the nation state possessing a special monopoly, to the contrary, is a much younger strain of thought, since the nation state is a rather new entity of governance. On the European continent, 'free lances' started playing a special role in the thirty years during which wars were fought through the hiring of private armies often led by wealthy generals. Up until the late 19th century, hired troops played a significant role in the conflict on the European continent. As from that point in time, the decline of the use of mercenaries was driven forward by the economies of scale on the battlefield: it turned out to be more efficient to recruit larger armies out of the national population than to hire them. Wars between nations, were fought between their citizens, and processes of bureaucratization and industrialization lead to the concentration of military power within the nation state. In addition, the doctrine of sovereignty gained ground and an international norm disapproving interference in domestic affairs of other countries grew stronger. As such, states had to show they were able to survive in such a system, drawing on their own national sources. The hiring of forces, as a result, was frowned upon in the late 19th and early 20th century.

Several developments in the 20th century such as the end of the world wars, processes of decolonization and the end of the cold war opened up new markets on which violence could be sold. In stead of individuals hiring out their skills of warfare, soldiers organized into networks and eventually larger organizations offering private violence. In turn, various regions shall shortly be discussed.

The African continent has been shred apart by civil conflicts and ethnic struggle after the colonial European powers left the region. Such an insecure environment creates weak state structures and unstable regimes. These conflicts have often been termed new wars as they were no longer between the high-tec armies of states, but between clans and ethnic groups. As a result, such conflicts involve multiple actors to whom tools of warfare became available on the global arms market. PMF's took notice of this situation and started offering their services to the various groups in the region which intensified conflicts. An interesting example is offered by Angola, in which the PMF Executive Outcomes was hired for 40 million dollars to support the Angolan government to retain army forces and to supply weapons. In effect, it played a decisive role as due to its work, a peace accord was signed, even though the country relapsed into conflict when the company left. One year later, this firm was hired by the Sierra Leone to support the regime and to protect mining and mineral sites. However, not only the government, also the rebels hired private companies to train and support their forces.

In Europe, interesting insights are offered by the situation in the Balkans at the end of the 20th century. The American firm MPRI for example provided training services in Bosnia and Kosovo and Cubic helped to restructure the Hungarian army. The Western states involved in the conflict relied on PMF's for the execution of their activities in the region: NATO campaigns against the Serbs for example were depended on logistical and information services provided by PMF's. Both sides of the conflict in the Balkans relied on private forces.
Moreover, in particular the United States and Great Brittain privatize force to an increasing extent. In GB for example, a private firm has begun training the Royal Navy on how to use the newest nuclear-powered submarine and a green paper issued by the British government, offers the possibility to outsource large parts of their military infrastructure. However the debate in Britain on the matter is still ongoing and heated.

Middle East
The smaller states such as Saudi-Arabia or the United Arab Emirates almost completely depend on PMF's in terms of their armed forces. Private forces protect the Saudi-Arabian Royal family and guard the regime. Almost 1400 employees, most of them ex-American soldiers are deployed permanently.
The recent developments in the Middle East and the various uprisings have led to a resurgence of mercenary activities in the region, especially in Syria and in Libya. To quote a UN report: “the events during this period demonstrate that the issue of mercenaries remains vitally important. During the recent violence in the Libyan Arab Jamahiriya, mercenaries were reportedly used to attack civilian populations who were protesting on behalf of democratic rights.” In Syria the Assad regime also relies on a force of mercenaries know as Shabiha and is likely to continue to hire soldiers to fight alongside the regime in the conflict that at the time of writing is still continuing.

The America's
The United States is the most reliant on private companies in the functioning of their armed forces. Between 1994-2002 it is estimated that the Department of Defense closed over 3000 contracts with American based PMF's such as Blackwater and MPRI. The value of these contracts supposedly is more than 300 billion dollar. The outsourcing of such military activities is according to Peter Singer unprecedented. In all major American operations in one way or another, PMF's are involved.
In concrete terms, this is visible in the way the Americans fight the war on terror. Interesting accounts can be found on the role of private soldiers in Iraq, where betweeen 20.000 and 50.000 hired soldiers are working for the US. This means there is one private soldier in Iraq for every ten regular US forces. In effect, even post-conflict peacebuilding activities and police training missions have been outsourced to PMF's. Some, as a result, call Iraq the first privatised war.

Source: the wall street journal

Contemporary problems
This section shall deal with the major problematique of the concept of PMF's in the international community. Under international law, the concept of mercenaries is poorly defined and an international regime concerning their use is in-existent. Moreover, there is a debate whether PMF's can be seen as contemporary mercenaries or whether it should be seen as a distinctive feature. In both cases, regulation and international mechanisms are lacking. This legal vacuum in which private violence operates is the most pressing issue the international community should solve. In addition, this section shall swiftly deal with some security issues related to the outsourcing of sovereignty.

Problems with mercenaries under international law
The traditional understanding of the term mercenary is “a soldier willing to sell his military skills to the highest bidder, no matter what the cause”. Within international law, there are two important definitions of the term 'mercenary'.
The Geneva Protocol I, article 47 (see appendix 1) definition is not normative, rather it is descriptive of what would constitute a mercenary under international law. It can be argued however, that is it too narrow, and almost impossible to fulfil. It denies foreign military personnel that is integrated in special units of another state such as the French foreign legion or the British Gurkah and it leaves out all those who do not directly participate in the conflict.
In the outcome document of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 1989 (see appendix 2) the first two articles define the concept. This document in effect also prohibits the use of mercenaries, moving beyond a mere description of the soldiers of fortune. However, the timing was rather ill, for it came out just when the governments started to take advantage of the firms, and in addition did little to solve the legal confusion. What is more, it only entered into force in 2001, more than ten years after its draft, when the 22nd state finally ratified it. Up until today, no more than 30 states are a party to this treaty, making a general enforcement of the definition and the prohibition of the use of mercenaries close to impossible. The definition itself also is problematic, as it is difficult to prove some of its aspects (eg. when is someone fighting for personal gain?). A saying has it, that if anyone manages to get prosecuted under this definition, “he should be shot and his lawyer with him”.

Are PMF's mercenaries?
The attitude towards the traditional mercenary as outlined in the definitions above, within the international society is not very positive. The very term has a negative connotation, and as we saw, attempts have been made to prohibit their use. However, an important question to ask is whether PMF's can be classified as mercenaries as well. This is important in terms of their position within international law and their perceived legitimacy.
One of the founders of Sandline, thinks there is a clear distinction to be made between mercenaries and PMF's. “A private military company is a permanent structure with a large number of people on its books. It has a permanent presence, it has an office, promotional literature, it has a vetting system, it has a doctrine and it has a training capacity, internally, as well as externally. It draws on the normal support that you would expect from a business: it is the official military transformed into a private sector business guise. [...[ Mercenaries are usually individuals recruited for a specific task. They have no permanent structure, no group cohesion, no doctrine, and no vetting procedure. Their standards, both behavioural and technical are somewhat suspect and their motives can be questionable.”

Indeed, within the existing literature, mercenaries are understood to be individuals, working for one client only and provide only one service: they fight. PMF's however, are organized enterprises, have legal personality and are contractually bound to clients. They have websites, advertise in public and compete openly on the global market.
However, a UN report issued by the working group on mercenaries in October 2007 explicitly states that PMF's are to be seen as conducting contemporary mercenary activities:
“after having analysed the activities, at the international level, of a number of private
companies that recruit, train, use or finance former military personnel and ex-policemen from all regions of the world to operate in zones of armed conflict, the Working Group is of the opinion that many such manifestations are new modalities of mercenary-related activities.”
According to some scholars, the main difference lies in the nature of the services that the PMF's provide. Only in very rare cases do they actually take up the gun. To give you a short overview of the theoretical classification, it is useful to look at the spear metaphor.

Peter Singer has made a clear cut distinction in his typology, stating that the actual tip of the spear (type 1), or the actual fighting is done by very specific companies, such as Executive Outcomes and Sandline. Such firms are used to multiply the forces states already posses and engage in direct fighting. Christopher Kinsey says these firms that “operate at the sharp end of the industry” are best termed Private Combat Companies (PCC's).
Type 2 in Singer's analogy are firms offering consultancy and training services. They are companies that “deliver what their client requires to retain the military advantage over rival forces” and offer strategic, operational and advice with regard to the armed forces they support. An example of such a firm is MPRI, often consulted by the US . The main difference than between such private military companies (PMC's), and private combat companies in is the 'trigger finger': PMC's do not engage in combat.
The third type comes closest to private security firms (PSC's) that are little different from regular commercial security organizations. They offer a wide range of services from countering fraud to crime prevention to installing public order. They do not play a role in military planning or in direct hostilities, and offer logistics and technical support.
Source: Peter Singer, artikel, 200

The problem with PMF's under international law
As shown above, if we classify PMF's as new mercenary activities as the Special Rapporteur proposes, than the existing definitions/regimes are insufficient. But also if they are not seen as mercenaries their status is ambiguous, as they are undefined under international law which makes that they act in a legal vacuum which has serious consequences for international security.
Soldiers that are hired through PMF's technically fall under the jurisdiction of the host state. Ironically enough, and this is where the problem gets urgent, these states are either a) hiring them, b) the PMF fights against this state, c) failed and unable to enfore legal order, d) politically unwilling to bring soldiers to justice. As a result, some acts which would be regarded as serious crimes in some countries, are let of the hook since they fall in-between laws.
To give you a few examples, an investigation of the Iraqi Minister of Interior resulted in the conclusion that Blackwater employees had fired gunshots while participating in traffic circulation for no apparent reason, killing at least 8 civilian Iraqi's. The American administrators had stated as 'order 17' that PMF's hired by the US are immune under Iraqi law. Not only does this seriously undermine Iraqi sovereignty, it also undermines international order and violates human rights.
The American firm DynCop has no better track-record. It's employees are known to be involved in “inhuman behaviour, purchasing illegal weapons, forged weapons and other immoral acts” . In fact, the man who was in control of the firm in Bosnia has videotaped himself raping two young women. This exact firm has now been contracted by the US to train the Iraqi police force for a 250mln dollar contract. Whereas the morality of employees of PMF's can be seen as a separate issue, what matters here is that none of these people where prosecuted, not in their home countries, nor in the host countries simply because the systems of law “in this area as it stands now are to primitive to handle the complexity of this question”.
Following logically from this reasoning, the international community has a responsibility to bridge this cap by either regulating or prohibiting the privatization of violence, both through national and international laws. As far as national laws are concerned, it is a step that until now has only been taken (though not sufficiently enough) by the US and South-Africa , and viable attempts have only been made by Great Brittain. As one of the main theorists in this area, Peter Singer advices the international community that such a system of regulation should focus on the following 5 points:
1. It must explicitly state what it aims to achieve and be objective and unbiased towards states, firms or segments of the industry.
2. It must define who fall under the definition of PMF's and what the relation is to the traditional idea of mercenaries. It must set clear and immutable parameters.
3. It must define the specific activities of the industry that fall under the system of regulation.
4. What body would conduct the observation, regulation and conduct?
5. Who/what is going to pay for the costs of such a regime?

Source: Singer, 2001-2002, 189.

Security-related issues
As the private soldiers are technically a third party to the conflict and have no cultural or ethnic connections to the fighting parties, certain problems may arise. As already touched upon above, they maybe less inclined to act morally, as they are not restrained by formal hierarchies and feel no loyalty towards the commanding officers. As war is privatized, the market of force does not always result in the good guys getting the jobs. In addition, many employees are former soldiers who have been discarded from a national army due to behavioural problems or are persons that are naturally drawn to violence. Nor do PMF's have an interest in a swift and peaceful solution. To the contrary, they are often suspected to prolong the conflict, because they get paid high salaries. In line with this reasoning, PMF's may be inclined to increase their profits by “cutting corners” or by overcharging.
Moreover, as the public/private divide becomes less strict, and the monopoly of states on power erodes, there might raise issues of control. Governments become more dependent on the services PMF's offer, and will be vulnerable to market fluctuations, which may lead to uncertainty and a loss in security. But it also works the other way around: non-legitimate actors can now simply buy force, which may lead to an increase in threats to international security. The use of violence in a way becomes unaccountable. Even democratic governments can now just simply outsource the politically sensitive missions, without per se conducting a public debate on the use of such force.

Source: Singer, 2001-2002, 204.

International Initiatives
3.1.The UN Working Group
Ever since 1987 the UN appointed a Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. The first rapporteur was Mr. Enrique Bernales Ballesteros, who was succeeded by Ms. Shaista Shameem. In 2005 the Human Rights Council decided on the establishment of a Working Group to support the Rapporteur in her mandate. As of that date, the Group has issued annual reports to the GA and drafted multiple important documents. One of the most important is the report issued in 2007, which was not evenly well received by the various states in the international community. Whereas the Group has the mandate to “monitor mercenaries and mercenary-related activities in all their forms and manifestations in different parts of the world” and has done important work, it has not yet been able to establish a legal framework for regulation. However, and of specific interest to you as delegates of the UNSC, the Group has submitted a “draft legal instrument for proper consideration” in accordance with a resolution adopted by the HRC on the 26th of March 2009.

The UNGA and the UNSC
Both have passed numerable resolutions condemning the use of classic mercenaries in armed conflict, however, no proper statements have been made on the use of PMF's. In addition, most resolutions that address the use of mercenaries are directed at a specific events and not to the general concept. Whereas the GA has often adopted stronger resolutions in relation to the matte than the SC , more specific and condemning that is, these documents are often not supported by the major military powers such as France, Germany, US, Japan, Israel, and the UK.

The Montreux Document
The Montreux document is the outcome of an initiative between the government of Switzerland and the International Committee of the Red Cross. It aims to “promote respect for
international humanitarian law and human rights law whenever PMSCs [PMF's] are present in armed conflicts. It is not legally binding as such; rather, it contains a compilation of relevant international legal obligations and good practices.” Whereas it is a very ambitious project and even sets out to “provide(s) a tool-kit for governments to establish effective oversight and control over PMSCs [PMF's], for example through contracts or licensing/authorization systems” one of its weaknesses it that it is only applicable in the case of an actual armed conflict and does not set a normative framework for prevention. On that note, the Swiss government has also developed in cooperation with PMF's located in Switzerland the International Code of Conduct for Private Security Service Providers (ICoC) that “aims to both clarify international standards for the private security industry operating in complex environments, as well as to improve oversight and accountability of these companies.”

The International Stability Operations Association (ISOA)
ISOA can be said to be the forum through which PMF's represent themselves globally. The organization was founded in 2001 by Doug Brooks, a private soldiers who was shocked by the practices he witnessed in Sierra Leone. Together with a group of NGO's, government officials and PMF's he started drafting a Code of Conduct that would better regulate the private sector activities in order to enhance the morality and accountability of their conduct.

PMF's as Peacekeeping forces
The debate about PMF's on the international level increasingly evolves around the possibility of such hired forces to replace national soldiers in as peacekeepers. As these firms are increasingly present in conflicts, such forces could potentially replace the international community, especially since these firms are less reluctant to take up political sensitive missions as they have no political interest in world politics. In other words, PMF's are willing to go where the UN is not. UN officials are not convinced such a move is beneficent. Kofi Annan states he does not think the world is ready to privatize peace, and the former UN Special Rapporteur on mercenary activities, Enrique Ballesteros, says that he does not think private organizations such as EO and MPRI should ever effectively take over the role of the international community as peacekeeping forces. The companies themselves though, argue that they have the ability to provide professional, cost-effective services to carry out peacekeeping and conflict resolution practices as the way forward.

To conclude..
The erosion of the state's control over the use of physical force raises new questions that the international community ought to answer. The activities carried out by private forces have the potential to threaten world security and should therefore be addressed in the highest body of the UN: the Security Council. You as delegates have the priviledge and the honour to take up this difficult task. How exactly could you do that?

What a resolution must address:
 Decide whether or not the UNSC is in favour or against the practice of outsourcing violence;
 Define both mercenaries and PMF's and their status under international law;
 Set out a framework/or mechanism for regulation/prohibition of private violence;
 Define how member states can adjust their national law to such an international system;
 Set forth ideas on how to tackle security issues related to morality, bad conduct eg overcharging, and the problems of control and accountability;
 Consider whether or not the UN and PMF's in the future can cooperate in terms of peacekeeping missions.

How to prepare yourself:
 Be sure to visit the website of the Working Group and the Special Rapporteur and go through the most important documents issued. This can well be the framework to build a resolution on. Find out what research has been done, look at the recommendations for further action and use the terms and definitions the documents of the working group provide and use them in the debate in the council;
 Find out what private military firms are based in the country you represent, what national laws the country you represent has formulated, look for policy documents and other relevant papers. Try to find out to what extent your country uses PMF's in its foreign policy and which aspects it has outsourced.
 Go through the documents listed at the end of this background paper and look for articles that address the issues and debates outlined in this paper. Use this document as a starting point, and find your way through the information that is widely available. This paper is far from covering the entire issue! You need to gather more information by yourself! Go to your local library, use e-journals, and consult the UN websites, as well as websites launched by your respective government (the country you represent during TEIMUN).
 Watch some documentaries related to mercenaries and PMF's. This is a quick way to gain a lot of knowledge! (see for example Shadow Company or Private Warriors )

Good luck!

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Appendix 1.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
(Available at

Article 47.-Mercenaries
1 A mercenary shall not have the right to be a combatant or a prisoner of war.
2.A mercenary is any person who:
( a )Is specially recruited locally or abroad in order to fight in an armed conflict;
( b )Does, in fact, take a direct part in the hostilities;
( c )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;
( d )Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
( e )Is not a member of the armed forces of a Party to the conflict; and
( f )Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed force

Appendix 2.
International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989.
(Avialable at

Article 1

For the purposes of the present Convention,

1.A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) 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 rank and functions in the armed forces of that party;
(c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
(d) Is not a member of the armed forces of a party to the conflict; and
(e) Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

2. A mercenary is also any person who, in any other situation:
(a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at :
(i) Overthrowing a Government or otherwise undermining the constitutional order of a State; or
(ii) Undermining the territorial integrity of a State;
(b) 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;
(c) Is neither a national nor a resident of the State against which such an act is directed;
(d) Has not been sent by a State on official duty; and
(e) Is not a member of the armed forces of the State on whose territory the act is undertaken.