Rule 108. Mercenaries, as defined in Additional Protocol I, do not have the right to combatant or prisoner-of-war status. They may not be convicted or sentenced without previous trial.
Volume II, Chapter 33, Section C.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The rule that mercenaries do not have the right to combatant or prisoner-of-war status is set forth in Additional Protocol I.
It is also contained in a few other treaties.
Numerous military manuals specify that mercenaries are not entitled to combatant or prisoner-of-war status.
A manual used for instruction in the Israeli army states that this rule is part of customary international law.
The participation of a mercenary in an armed conflict is punishable under the legislation of a number of States.
This rule is also supported by official statements and reported practice.
This practice includes that of States not, or not at the time, party to Additional Protocol I.
The United States, however, has stated that it does not consider the provisions of Article 47 of Additional Protocol I to be customary.
This rule may have lost much of its meaning because the definition of mercenaries that was agreed upon in Additional Protocol I is very restrictive (see infra
). This point was recognized by the United States and may explain why it did not object to Article 47 at the Diplomatic Conference leading to the adoption of the Additional Protocols.
In addition, because the opposition from African countries against mercenary activity was mainly related to their involvement in wars of national liberation where mercenaries were fighting against a people wishing to exercise their right to self-determination, this issue has been less vigorously pursued in recent years, and mercenaries have been less stigmatized.
Additional Protocol I defines a mercenary as a 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 forces.
This definition is very restrictive because it requires that all six conditions be cumulatively fulfilled. In addition, the definition requires evidence that a person accused of being a mercenary is “motivated to take part in the hostilities essentially by the desire for private gain” and is promised “material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces”. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Afghanistan, Cameroon, Cuba, Mauritania, Nigeria and Zaire expressed their opposition to this formulation.
Cameroon, for example, stated that “it would be very difficult to prove that a mercenary received exorbitant pay”.
The Netherlands was against any reference to the motivation of a mercenary altogether.
The OAU Convention against Mercenarism dropped the requirement of material compensation “substantially in excess of that promised or paid to combatants of similar ranks and functions”.
The UN Mercenary Convention, however, does contain this requirement.
Among those military manuals collected for this study that contain a definition of a mercenary, nine follow the definition in Additional Protocol I,
while four others simply refer to the desire for private gain.
The legislation of 11 States of the former Soviet Union define mercenaries with respect to their desire for private gain without further qualification.
In the light of the foregoing, it can be concluded that the customary rule that mercenaries do not have the right to combatant or prisoner-of-war status applies only to those persons fulfilling the conditions set forth in the definition of a mercenary in Article 47 of Additional Protocol I.
Lastly, it should be recalled that members of the armed forces of a party to the conflict who are not nationals of that party and who do not fulfil all six conditions of the definition of a mercenary in Article 47 of Additional Protocol I are entitled to prisoner-of-war status.
It is important to note in this respect that nationality is not a condition for prisoner-of-war status according to long-standing practice and to Article 4 of the Third Geneva Convention.
A person accused of being a mercenary may not be punished without previous trial. At the Diplomatic Conference leading to the adoption of the Additional Protocols, several States stressed that mercenaries enjoy the protection of Article 75 of Additional Protocol I and some specified that they would have wished to see an explicit reference to Article 75 to this effect.
The Rapporteur of Committee III of the Diplomatic Conference reported that although there was no such explicit reference in Article 47 of Additional Protocol I, it was understood that mercenaries would be one of the groups who would be entitled to the fundamental guarantees provided for in Article 75.
This point was reiterated by Ireland and the Netherlands upon ratification of Additional Protocol I.
The military manuals of Canada, Germany, Kenya and New Zealand underline that mercenaries are entitled to a fair trial.
This is consistent with the fundamental guarantees set out in Chapter 32, including the right to a fair trial (see Rule 100). This is also laid down in Additional Protocol I, which states that anyone who is not entitled to prisoner-of-war status, and does not benefit from more favourable treatment in accordance with the Fourth Geneva Convention, still enjoys the fundamental guarantees provided for in Article 75 of Additional Protocol I.
Consequently, the summary execution of mercenaries is prohibited.
According to this rule, States are free to grant prisoner-of-war status to a mercenary or withhold it, but the mercenary has no right to claim such status as a defence against prosecution. As the UN Secretary-General reported in 1988, the Islamic Republic of Iran claimed to have captured nationals from other countries whom it alleged were mercenaries, but it asserted that, rather than punish them, it chose to treat them like other prisoners of war.
Similarly, the US Air Force Commander’s Handbook asserts that the United States has regarded mercenaries as combatants entitled to prisoner-of-war status upon capture.
This shows that a State is free to grant such status. The Handbook also states, however, that “the US government has always vigorously protested against any attempt by other nations to punish American citizens as mercenaries”.
This statement does not undermine the current rule to the extent that these protests were made with respect to persons who did not fulfil the stringent conditions of the definition of mercenaries contained in Article 47 of Additional Protocol I, which was adopted by consensus.
Mercenaries participating in a non-international armed conflict are not entitled to prisoner-of-war status as no right to that status exists in such situations.