Practice Relating to Rule 108. Mercenaries
Section B. Status of mercenaries
New Zealand’s Military Manual (1992) states:
807(1). While no distinction may be drawn between regular troops and volunteers, conscripts or members of the militia embodied in the armed forces, mercenaries as defined in [the 1977 Additional Protocol I] are denied the status of combatants and, if captured, are not entitled to treatment as prisoners of war.
807(2). Prior to 1977 there was no restriction upon the use of mercenaries in armed conflict and, in accordance with the principles of humanitarian law, any form of discrimination among combatants was forbidden. By a series of resolutions in relation to specific anti-colonial conflicts in Africa, the United Nations recommended prohibition of the use of such personnel against national liberation movements. This did not affect their legal status, although the government of Angola instituted criminal proceedings against captured mercenaries. Insofar as countries accepting [the 1977 Additional Protocol I] are concerned mercenaries are not entitled to combatant rights, thus denying to this type of soldier the equal treatment otherwise prescribed by the Protocol. Nevertheless, they remain entitled to the provisions concerning humanitarian treatment contained in [the 1977 Additional Protocol I] Art. 75.