This kind of warfare is also unique in the sense that, it can take place in unusual locations, such as towns or villages, as has been seen in the case of Somalia when the US armed forces fought there, or the still on-going battle in Afghanistan.[1] In such places, it is very difficult to make out the difference between civilians and hostiles. For instance, even a boy, who at one moment is unarmed, and at the next moment picks up a weapon, can be recognized as a hostile and shot down.
So, how can mercenaries be a decisive force as regards the outcome of a conflict? They can carry out all kinds of missions – from reconnaissance to assault – and can even carry out political assassinations. All this absolves the controlling nation or armed force from any liability, since, technically, none of the members of their recognized armed forces actually carried out an assault within the territory of the aggrieved nation. But, there is a flip side to this, if the mercenaries are captured, then they can’t claim the protection of their basic human rights under the Law of War (International Humanitarian Law), as they are expendable, unrecognized belligerents operating within the territory of the aggrieved country. As such, the guarantee of humane treatment granted to military personnel during the time of their capture by enemy forces, under the various Geneva Conventions[2], is not something mercenaries can lay claim to.[3]
The foundation of the Geneva Conventions system is the principle that persons not actively engaged in warfare should be treated humanely.[4] And also, Article 1 (2) of the Additional Protocol I, 1977 provides that:
In case not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.[5]
The Geneva Conventions are an umbrella of basic rights which are granted to every non-combatant in case of their capture by enemy belligerents. But as per the definition of mercenaries which has been mentioned before (the 1976 and 1977 sessions of the Conference on International Humanitarian Law), they are directly and actively involved in the conflict, and hence can’t avail the aid granted by these Conventions. Therefore, they are susceptible to being tortured, maimed and killed, and their existence itself, is deniable. They themselves bear the consequences of their actions.
They are not entitled to:
(i) Getting humane treatment by the enemy Party,
(ii)Keeping silent about their allegiance to a Party to the conflict,
(ii) Being treated as a POW (Prisoner of War) would be treated, without threat or actual infliction of physical or mental torture, unpleasant or disadvantageous treatment of any kind, or being kept safe from the field of fire, etc.[6]
* Graduate, Symbiosis Law School, Hyderabad, Symbiosis International (Deemed University), Pune.
[1] Giuseppe Caforio, The Asymmetric Warfare Environment as Described by the Participants, Connections 53, 54-55 (Spring 2013).
[2] A collective term for conventions and instruments passed in the years 1864, 1906, 1929 and 1949. Originally envisioned by Henry Dunant, and named in its entirety as the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
[3] Malcolm N. Shaw, International Law 892-893 (8th Ed. (Restricted South Asia Edition) Cambridge University Press, 2018).
[4]Ibid.
[5]Ibid.
[6]Ibid.,at pp. 894-897.
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