Practice Relating to Rule 108. Mercenaries
Section A. Definition of mercenaries
The Military Manual (1993) of the Netherlands states:
A mercenary shall not have the right to be a combatant or a prisoner of war.
Mercenaries are defined in the humanitarian law of war as persons who fulfil all of the conditions listed below.
-Be specially recruited to fight in an armed conflict.
-Be motivated mainly by the desire for private gain and be paid substantially better than the soldiers of the armed forces which hire them.
-In fact take a direct part in hostilities.
-Neither be a national of a party to the conflict nor a resident of territory controlled by a party to the conflict.
-Not be a member of the armed forces of a party to the conflict.
-Not be sent by a State which is not a party to the conflict on official duty.
The mere fact that persons of another nationality act as volunteers in the armed forces of a State does not mean that they are mercenaries. These volunteers must simply be considered as combatants. In order to avoid any misunderstanding: The Gurkha units of the British army form a regular part of the British armed forces. The soldiers of the French Foreign Legion are not mercenaries either.
[emphasis in original]
The Military Manual (2005) of the Netherlands states:
… The humanitarian law of war defines mercenaries as people who have to meet all the following conditions. They must:
- be specially recruited to fight in an armed conflict;
- be motivated by personal gain and be considerably better paid than members of the armed forces to which they hire their services;
- be actually and directly involved in hostilities;
- not be subjects of a party to the conflict nor residents of a territory controlled by a party to the conflict;
- not be members of the armed forces of a party to the conflict;
- not be sent on an official mission by a State which is not a party to the conflict.
To further illustrate the above statement, the manual states:
The fact that persons of other nationalities volunteer to join the armed forces of a State does not make them mercenaries. Such volunteers must normally be treated as combatants. To dispel any misunderstanding: the Gurkha units in the British Army are regular members of the British armed forces. The members of the French Foreign Legion, likewise, are not mercenaries.
It does happen that companies offer military expertise for hire: Executive Outcomes Pty. Ltd. is one known example. In 1997 the Government of Papua New Guinea (PNG) hired a company of British origin, Sandline International, to train PNG’s armed forces for action against the Bougainville Revolutionary Army and to support them in that action. Whether to class personnel of such companies as mercenaries depends partly on how far they meet the conditions listed in point 0323.
At the CDDH, the Netherlands stated:
We are somewhat worried by the fact that in the list of criteria [to define a mercenary], the motivation of a person has been brought into play. We should like to reiterate our position that the application of humanitarian law and the granting of humanitarian treatment should not be made dependent on someone’s motivation for taking part in the armed conflict. Moreover the element of motivation will be difficult to establish and could give rise to more than one interpretation.
Upon ratification of the 1977 Additional Protocol I, the Netherlands stated: “Article 47 in no way prejudices the application of Articles 45 and 75 of Protocol I to mercenaries as defined in this Article.”