Spies and Mercenaries

BusinessLegal

  • Author Emmanuel Agherario, Esq
  • Published July 23, 2021
  • Word count 8,052

1.0 INTRODUCTION

According to Black law DictionaryEspionage, or spying, has reference to the crime of gathering, transmitting or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to be used to the advantage of any foreign nation. Spies help agencies uncover secret information and to know about their enemies tactics. Many governments and private organisations routinely spy on their allies as well as their enemies, although they typically maintain a policy of not commenting on this. Governments also employ private companies to collect information on their behalf.

The Hague Regulations of 1907 state that a person can only be considered a spy when acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the Zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not wearing a disguise who have penetrated into the Zone of operations of the hostile army, for the purpose of obtaining information are not considered spies, similarly, the following are not considered spies, soldier and civilians, carrying out their mission openly, entrusted with the delivery of dispatches intended either for their own army or for the enemy army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and generally or maintaining communications between the different parts of an army or a territory.

Mercenary on the other hand according to Black’s Law Dictionary, is derived from the Latin word “mercenaries” which simply means “a Soldier of fortune”. A mercenary is an individual who is hired to take part in an armed conflict but is not part of a regular army or other government military force, his sole motivation is private gain.In the last century, mercenaries have increasingly come to be seen as less entitled to protections by rules of war than non-mercenaries. The Geneva Conventions declares that mercenaries are not recognized as legitimate and /or lawful combatants and do not have to be granted the same legal protections as captured soldiers of a regular army. In practice, whether or not a person is a mercenary may be a matter of degree, as financial and political interest may overlap.

2.0 HISTORICAL BACKGROUND OF THE USE OF SPIES AND MERCENARIES

The use of Spies and Mercenaries date as far back as time immemorial, In the Bible It is recorded that Joshua and Caleb spied on the land of Canaan and came back with a good report. During World War 1 and II it is recorded that mercenaries were used, one of which is the famous Mata hari who spied for Germany during World War 1. In Congo mercenaries were employed by the Katanga secessionists from 1960 to 1963 and also subsequently used by the Tshombe and Mobutu Governments against the Simbas from 1964 onwards which marked its first time after the Spanish civil war. Recruitment for the Congo was made open and widespread as it was publicized and missions were sent out to Belgium and France and at the wake of 1961, recruiting offices were opened even at South Africa

In Nigeria during the Civil War it is also recorded that spies and mercenaries were used by both the government forces and Biafra armed forces. Also in 2015 mercenaries where brought from South Africa in the war against Boko Haram and large success was recorded during the said period. Just recently after the killing of some farmers in a rice field at Zabarmari village the Governor of Borno State suggested that Nigeria should seek the assistance of mercenaries in the war against Boko Haram. While some scholars have argued that members of the dreaded Boko Haram sect are not Nigerians but hired mercenaries with the sole aim of destabilizing the government.

3.0 LEGAL STATUS OF SPIES AND MERCENARIES (ESPIONAGE)

Espionage is a crime under the legal code of many nations. In the United States it is covered by the Espionage Act of 1917 while in Nigeria it is covered by the Nigeria Military Manual of 1994. The risks of espionage vary. A spy breaking the host country’s laws may be deported, imprisoned, or even executed. Spying or Espionage consists in collecting or trying to collect information on military strength by an act of false representation or an act deliberately of a clandestine nature. Generally, if spies participate in hostilities, they can be punished for their participation, but only after a fair trial provided with all judicial guarantees. Article 30 of the 1899 Hague Regulations which has similar provisions with the 1907 Regulations provides that a spy taken in the act cannot be punished without previous trial. While Article 31 further provides that a spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy is treated as a prisoner of war, and incurs no responsibility for previous acts of espionage. It therefore means that a spy taken in the act shall be tried and treated according to the laws in force in the army which captures him. A spy who rejoins the army to which he belongs and who is subsequently captured by the enemy is treated as a prisoner of war and incurs no responsibility for his previous acts. Article 46(1) of the 1977 Additional Protocol I (APGC77) provides that notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.

Further Article 45(3)Any person who has taken part in hostilities, who is not entitled to prisoner of war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. While Article 5 provides that where in occupied territory an individual protected person is detained as spy such person shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular prescribed by the present convention

Article 47 on the other hand provides for the status and treatment of mercenaries. It provides thus:

A mercenary shall not have the right to be a combatant or a prisoner of war.

A mercenary is any person who:

Is specially recruited locally or abroad in order to fight in an armed conflict

Does, in fact, take a direct part in the hostilities;

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;

Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

Is not a member of the armed forces of a Party to the conflict; and

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.

From the above, spies are recognised under the convention and protected as prisoners of war while mercenaries are not and do not enjoy the status of a prisoner of war under IHL and are regarded as an unlawful combatant.

In Sandrock case (Almelo Trial) in 1945, the UK Military Court at Almelo held that killing captured members of the opposing forces or civilian inhabitants of occupied territories suspected of espionage and found the accused guilty of the killing without trial of a British soldier who was alleged to be a spy.

Also in the Dostler case before the US Military Commission at Rome in 1945, the accused, the commander of a German army corps, was found guilty of having ordered the shooting of 15 American prisoners of war in violation of the 1907 Hague Regulations and of long-established laws and customs of war. The Defence submitted that the US soldiers had worn no distinctive emblem and that their mission had been undertaken for the purpose of sabotage. The Defence considered, therefore that they were not entitled to the privileges of a lawful belligerent, though it was admitted that they were entitled to a lawful trial even if they were treated as spies.

It has been argued by scholars that in case of doubt as to the status of persons captured during hostilities; these persons must be treated as prisoner of war and/or in accordance with the principle of common humanity until a regularly constituted tribunal has determined their real status. If the tribunal determines that the captive is a lawful combatant, this captive is entitled to a prisoner of war status but if otherwise at that juncture, the mercenary soldier becomes an unlawful combatant; but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered under the law. The only possible exception is when the mercenary so captured is a national of the authority imprisoning him, in which case he would not be a mercenary soldier.If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. This is because mercenary soldiers may not qualify as Post –World War Solders and as such, they cannot expect repatriation at the end of the war end. For example, On 28 June 1976 at the end of the Luanda Trial, an Angolan court sentenced three Britons and an American to death and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on 10 July 1976.

The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" they are not mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention.

The United Nations on 4th December 1989 passed a resolution, at an International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The convention entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 1 of the Convention gave a similar definition of Mercenary as defined under Article 47 of the Additional Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermine the territorial integrity of a State;" and "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." Under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.

Some Critics have argued in some quarters that the UN Mercenaries Convention 1989 and Article 47 of APGC77 are designed to cover the activities of mercenaries in post-colonial Africa and do not in any way address adequately the use of private military companies by sovereign states. It is worthy to note that, the laws of some countries forbid their citizens to fight in foreign wars unless they are under the control of their own national armed forces. The UN Mercenaries Convention provides: Any person who recruits, uses, finances or trains mercenaries, as defined in article 1 of the present Convention, commits an offence for the purposes of the Convention.

In Austria for instance, if a person is proven to have worked as a mercenary for any other country while retaining Austrian citizenship, his or her Austrian citizenship will be revoked. In 2003, France criminalized mercenary activities, as defined by the protocol to the Geneva Convention for French citizens, permanent residents and legal entities. This law does not prevent French citizens from serving as volunteers in foreign forces. The law applies to military activities with a specifically mercenary motive or with a mercenary level of remuneration.

4.0 COMMERCIALIZATION OF SOLDIERY SKILLS

After the end of World War II many countries had limited personnel to cover the field which prompted an increase in demand for expert hands in some military operations. This is usually what private military companies in modern day do.

Now because of the expertise of past military Generals/warlords who are retired but not tired in the art of welfare and because of their love for better military services, soldiery being all they know and needs to make money. Some of them tend to establish these private military companies which supply government and private organizations with modern technology on the act of combating and detecting crimes and also providing personal security. These companies because of their previous ties to the arm forces usually have the connections needed to pull these contracts.

These private military personnel’s fight for a fee and have often been accused by scholars of turning the phenomenon of war into profit making mechanism. For instance Osama’s lead attack on the WTC and Pentagon, which lead to a massive increase in defense spending by U.S.A, most likely made the Bush Family a great deal of money because it was their company Carlyle Group that was contracted. Also the invasion of Iran by U.S. military forces under the disguise of Iran producing a nuclear weapon but with ulterior interest in controlling Iran Oil wells has received series of commendations and even after the U.S.A pulled out its troops it allowed private military personnel’s to guide some of its facilities.

4.1 RELATIONSHIP BETWEEN COMMERCE AND ARM CONFLICT

Arm conflict generally cannot take place without the use and supply of goods and services such as arms and ammunitions, military wears, food for soldiers, payment of salary for arm personnel’s etc. For parties who benefit from war it is seen as good business because profit would be made from the procurements of arms, ammunitions and rendering of military services.

Now the danger in the relationship between commerce and arm conflict is that in a bid to always be relevant actors (PMC) who supply ammunitions and military services during arm conflicts would not want conflict to end and would do anything to develop more sophisticated weapons and deadly strategies to make warfare easy for their customers. These weapons and strategy in the long run endanger our common humanity. For instance the chemical bombings used in Hiroshima and Nagasaki Japan till date still has effects in the populace, waters and farm lands.

Recent report had it that the Niger Delta region in the Nigeria is now inundated with British and American private military companies (PMCs) engaged in security services for their clients in the oil and gas industry. The story titled The mercenaries take over and published on February 22, says no fewer than 10 such companies, prominent among them Control Risk which has on its payroll the former body guard of Diana, the late Princess of Wales, Erinys International and ArmorGroup, currently operate in the restive Niger Delta, some through spurious partnerships with local companies. This evokes a disturbing picture of an imminent cataclysm in a region now credited with one of the largest concentration of small arms in the world.

4.2 ROLE OF PRIVATE MILITARY COMPANIES IN ARM CONFLICT

A private military company (PMC) is a private company providing armed combat or services. They refer to their staff as security contractors or private military contractors. They also refer to their business generally as private military industry or the circuit

A number of reports have indicated that private military companies have played a central role in some of the most sensitive activities of the Military, CIA and other government and non-government organizations during arm conflict. According to a 2008 study by the Office of the Director of National Intelligence, private contractors make up 29% of the workforce in the United State Intelligence Community and cost the equivalent of 49% of their personnel budgets.

These activities include arbitrary detention and clandestine raids against alleged insurgents in Iraq and Afghanistan, involvement in CIA rendition flights, joint covert operation, trained or supplements official arm forces in service of government, employed by private companies to provide bodyguards for key staff or protection of company premises especially in hostile territories, etc. Employees of PMSCs have been involved in the transport of detainees from pick-up points (such as Tuzla, Islamabad, and Skopje); in rendition flights to drop-off points (such as Cairo, Rabat, Bucharest, Amman, and Guantanamo); and in building, equipping, and staffing the CIA’s “black sites. In 2007, the American Civil Liberties Union (ACLU) filed a lawsuit against Jeppesen DataPlan, Inc., a subsidiary company of Boeing, on behalf of five persons who had been kidnapped by the CIA and held in overseas secret prisons maintained by the United States

4.3 PRIVATE MILITARY COMPANIES AS MODERN DAY MERCENARIES

Private Military Service Companies (PMSCs) are the modern reincarnation of a long lineage of private providers of physical force, such as corsairs, privateers, and mercenaries. PMSCs are non-state entities operating in extremely blurred situations, where the lines between what is allowed and what is not are difficult to identify.The new security industry moves large quantities of weapons and military equipment. It provides services for military operations, recruiting former military as civilians to carry out what has been labeled as “passive or defensive security”. What the Geneva conventions prohibited via mercenaries is what these PMSCs try to bring in through the back door.

According to the definition under Article 47 (2) of Additional Protocol I, to be considered a mercenary the person has to fulfill the six conditions set out in that instrument. A mercenary (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.

The definition of a mercenary under the UN Convention covers all the criteria of Additional Protocol I with the exception of “does in fact take a direct part in the hostilities.” In addition, the UN Convention includes “any other situation” in which a non-national is recruited to take part “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.” Whereas Additional Protocol I only applies to international armed conflicts, the UN Convention covers both international and non-international armed conflicts. Furthermore, the UN Convention makes the recruitment, use, financing or training of mercenaries an offense under international law and implies that any foreigner taking part in any violent activity aimed at provoking a change of regime through a coup d’état during peacetime may be considered a mercenary. But not all state has signed and/or domesticated this law.

A number of the activities fulfilled by PMSC may meet the requirements contained in the international instruments regarding mercenaries. Also, the recruitment of former militaries and law enforcement personnel as “security guards who would be ’exposed to great risks including but not limited to the threats inherent in a war situation,” included as a clause in a number of contracts that the private security contractors signed, is extremely close to the element of the definition that specifies that the mercenary must be specifically recruited “in order to fight in an armed conflict. Even if they do not conduct offensive operations but have been recruited to protect military objectives, “security guards” may be targeted by the enemy who consider them as being recruited in an armed conflict. A number of activities conducted by PMSC employees may be considered direct participation in hostilities, such as the involvement of Blackwater employees in Najaf, Iraq, on 4 April 2004.

Even though the main motivation of many of the private contractors engaged by PMSCs may be private gain, it is extremely difficult to prove this in court. Moreover, for many private guards, the motivation is a mixture of monetary gain, the “excitement and adrenaline” of adventure, and the possibility to put in practice all of their training, as. PMSCs usually hire personnel who have been highly trained in dangerous and counterinsurgency operations such as members of US SEALs, or SWCC, the British SAS or the French Legion.

Each of the elements taken individually poses problems to classify PMSCs as mercenaries. For PMSCs and their employees to be considered mercenaries, all the requirements in the definition of the international instruments must be cumulatively met. In the absence of which it is my opinion that PMSCs are commercial firms legally registered in their home countries, a large number of which have obtained contracts from governments (the Pentagon and the State Department in the United States).

5.0 CHALLENGES COUNTRIES FACE IN RELATION TO SPIES, MERCENARIES AND PRIVATE MILITARY COMPANIES

The following are some of the challenges that countries faces in relation to spies and mercenaries:

Lack of accountability for human right violations that they have committed which has been partly due to the difficulties in the application of domestic laws to PMSC actuating in foreign countries as well as to the difficulties in carrying out investigations in failed states.

It has been argued by some scholars that Private military companies usually do not want an end to war so they are always involved in developing more sophisticated weapons and new war strategies which may endanger our common humanity. Just like those who created a virus for systems are also the once who created an anti-virus. So the virus would be spread so that persons can buy their anti-virus.

There are currently no globally accepted norms or legal framework applied to these private military firms.

No international court has jurisdiction over these corporations and there is no pre-existing mechanism in place bound by international law to account and manage for PMSCs use of force.

For instance in central BaghdadIraq on 9th October 2007, two Armenian women were shot dead when their car came too close to a convoy protected by Unity Resources Group (URG) contractors.URG employees opened fire as they felt threatened that the women’s car approached the convoy at high speed and was not going to stop this hired mercenaries were never prosecuted.

Also one of the most egregious known human rights violations by a PMSC is the shooting massacre perpetrated on 16 September 2007 by Blackwater personnel in Nisour Square, Baghdad. Seventeen people were killed and twenty others were severely injured although Blackwater came under heavy criticism it was never prosecuted. Blackwater has also been accused of fabricating documents to acquire unauthorized weapons, defrauding the USA government, and tolerating the widespread use of steroids and cocaine by its personnel. Only after the implementation of a new Status of Forces Agreement in January 2009 and the cancellation of Coalition Provisional Authority Order 17 which had granted immunity to contractors was the government of Iraq able to deny Blackwater’s application for an operating license. However, the company still had a contract with the U.S. State Department, and some Blackwater personnel were working in Iraq at least until September 2009.

6.0 CONCLUSION

The paper has successfully examined the legal status of spies and mercenaries, with a look at various conventions, a look at the role of private military company as modern day mercenaries, commercialization of soldiery skills and Challenges countries faces in relation to the use of spies and mercenaries.

1.0 INTRODUCTION

According to Black law DictionaryEspionage, or spying, has reference to the crime of gathering, transmitting or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to be used to the advantage of any foreign nation. Spies help agencies uncover secret information and to know about their enemies tactics. Many governments and private organisations routinely spy on their allies as well as their enemies, although they typically maintain a policy of not commenting on this. Governments also employ private companies to collect information on their behalf.

The Hague Regulations of 1907 state that a person can only be considered a spy when acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the Zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not wearing a disguise who have penetrated into the Zone of operations of the hostile army, for the purpose of obtaining information are not considered spies, similarly, the following are not considered spies, soldier and civilians, carrying out their mission openly, entrusted with the delivery of dispatches intended either for their own army or for the enemy army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and generally or maintaining communications between the different parts of an army or a territory.

Mercenary on the other hand according to Black’s Law Dictionary, is derived from the Latin word “mercenaries” which simply means “a Soldier of fortune”. A mercenary is an individual who is hired to take part in an armed conflict but is not part of a regular army or other government military force, his sole motivation is private gain.In the last century, mercenaries have increasingly come to be seen as less entitled to protections by rules of war than non-mercenaries. The Geneva Conventions declares that mercenaries are not recognized as legitimate and /or lawful combatants and do not have to be granted the same legal protections as captured soldiers of a regular army. In practice, whether or not a person is a mercenary may be a matter of degree, as financial and political interest may overlap.

2.0 HISTORICAL BACKGROUND OF THE USE OF SPIES AND MERCENARIES

The use of Spies and Mercenaries date as far back as time immemorial, In the Bible It is recorded that Joshua and Caleb spied on the land of Canaan and came back with a good report. During World War 1 and II it is recorded that mercenaries were used, one of which is the famous Mata hari who spied for Germany during World War 1. In Congo mercenaries were employed by the Katanga secessionists from 1960 to 1963 and also subsequently used by the Tshombe and Mobutu Governments against the Simbas from 1964 onwards which marked its first time after the Spanish civil war. Recruitment for the Congo was made open and widespread as it was publicized and missions were sent out to Belgium and France and at the wake of 1961, recruiting offices were opened even at South Africa

In Nigeria during the Civil War it is also recorded that spies and mercenaries were used by both the government forces and Biafra armed forces. Also in 2015 mercenaries where brought from South Africa in the war against Boko Haram and large success was recorded during the said period. Just recently after the killing of some farmers in a rice field at Zabarmari village the Governor of Borno State suggested that Nigeria should seek the assistance of mercenaries in the war against Boko Haram. While some scholars have argued that members of the dreaded Boko Haram sect are not Nigerians but hired mercenaries with the sole aim of destabilizing the government.

3.0 LEGAL STATUS OF SPIES AND MERCENARIES (ESPIONAGE)

Espionage is a crime under the legal code of many nations. In the United States it is covered by the Espionage Act of 1917 while in Nigeria it is covered by the Nigeria Military Manual of 1994. The risks of espionage vary. A spy breaking the host country’s laws may be deported, imprisoned, or even executed. Spying or Espionage consists in collecting or trying to collect information on military strength by an act of false representation or an act deliberately of a clandestine nature. Generally, if spies participate in hostilities, they can be punished for their participation, but only after a fair trial provided with all judicial guarantees. Article 30 of the 1899 Hague Regulations which has similar provisions with the 1907 Regulations provides that a spy taken in the act cannot be punished without previous trial. While Article 31 further provides that a spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy is treated as a prisoner of war, and incurs no responsibility for previous acts of espionage. It therefore means that a spy taken in the act shall be tried and treated according to the laws in force in the army which captures him. A spy who rejoins the army to which he belongs and who is subsequently captured by the enemy is treated as a prisoner of war and incurs no responsibility for his previous acts. Article 46(1) of the 1977 Additional Protocol I (APGC77) provides that notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.

Further Article 45(3)Any person who has taken part in hostilities, who is not entitled to prisoner of war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. While Article 5 provides that where in occupied territory an individual protected person is detained as spy such person shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular prescribed by the present convention

Article 47 on the other hand provides for the status and treatment of mercenaries. It provides thus:

A mercenary shall not have the right to be a combatant or a prisoner of war.

A mercenary is any person who:

Is specially recruited locally or abroad in order to fight in an armed conflict

Does, in fact, take a direct part in the hostilities;

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;

Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

Is not a member of the armed forces of a Party to the conflict; and

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.

From the above, spies are recognised under the convention and protected as prisoners of war while mercenaries are not and do not enjoy the status of a prisoner of war under IHL and are regarded as an unlawful combatant.

In Sandrock case (Almelo Trial) in 1945, the UK Military Court at Almelo held that killing captured members of the opposing forces or civilian inhabitants of occupied territories suspected of espionage and found the accused guilty of the killing without trial of a British soldier who was alleged to be a spy.

Also in the Dostler case before the US Military Commission at Rome in 1945, the accused, the commander of a German army corps, was found guilty of having ordered the shooting of 15 American prisoners of war in violation of the 1907 Hague Regulations and of long-established laws and customs of war. The Defence submitted that the US soldiers had worn no distinctive emblem and that their mission had been undertaken for the purpose of sabotage. The Defence considered, therefore that they were not entitled to the privileges of a lawful belligerent, though it was admitted that they were entitled to a lawful trial even if they were treated as spies.

It has been argued by scholars that in case of doubt as to the status of persons captured during hostilities; these persons must be treated as prisoner of war and/or in accordance with the principle of common humanity until a regularly constituted tribunal has determined their real status. If the tribunal determines that the captive is a lawful combatant, this captive is entitled to a prisoner of war status but if otherwise at that juncture, the mercenary soldier becomes an unlawful combatant; but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered under the law. The only possible exception is when the mercenary so captured is a national of the authority imprisoning him, in which case he would not be a mercenary soldier.If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. This is because mercenary soldiers may not qualify as Post –World War Solders and as such, they cannot expect repatriation at the end of the war end. For example, On 28 June 1976 at the end of the Luanda Trial, an Angolan court sentenced three Britons and an American to death and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on 10 July 1976.

The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" they are not mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention.

The United Nations on 4th December 1989 passed a resolution, at an International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The convention entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 1 of the Convention gave a similar definition of Mercenary as defined under Article 47 of the Additional Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermine the territorial integrity of a State;" and "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." Under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.

Some Critics have argued in some quarters that the UN Mercenaries Convention 1989 and Article 47 of APGC77 are designed to cover the activities of mercenaries in post-colonial Africa and do not in any way address adequately the use of private military companies by sovereign states. It is worthy to note that, the laws of some countries forbid their citizens to fight in foreign wars unless they are under the control of their own national armed forces. The UN Mercenaries Convention provides: Any person who recruits, uses, finances or trains mercenaries, as defined in article 1 of the present Convention, commits an offence for the purposes of the Convention.

In Austria for instance, if a person is proven to have worked as a mercenary for any other country while retaining Austrian citizenship, his or her Austrian citizenship will be revoked. In 2003, France criminalized mercenary activities, as defined by the protocol to the Geneva Convention for French citizens, permanent residents and legal entities. This law does not prevent French citizens from serving as volunteers in foreign forces. The law applies to military activities with a specifically mercenary motive or with a mercenary level of remuneration.

4.0 COMMERCIALIZATION OF SOLDIERY SKILLS

After the end of World War II many countries had limited personnel to cover the field which prompted an increase in demand for expert hands in some military operations. This is usually what private military companies in modern day do.

Now because of the expertise of past military Generals/warlords who are retired but not tired in the art of welfare and because of their love for better military services, soldiery being all they know and needs to make money. Some of them tend to establish these private military companies which supply government and private organizations with modern technology on the act of combating and detecting crimes and also providing personal security. These companies because of their previous ties to the arm forces usually have the connections needed to pull these contracts.

These private military personnel’s fight for a fee and have often been accused by scholars of turning the phenomenon of war into profit making mechanism. For instance Osama’s lead attack on the WTC and Pentagon, which lead to a massive increase in defense spending by U.S.A, most likely made the Bush Family a great deal of money because it was their company Carlyle Group that was contracted. Also the invasion of Iran by U.S. military forces under the disguise of Iran producing a nuclear weapon but with ulterior interest in controlling Iran Oil wells has received series of commendations and even after the U.S.A pulled out its troops it allowed private military personnel’s to guide some of its facilities.

4.1 RELATIONSHIP BETWEEN COMMERCE AND ARM CONFLICT

Arm conflict generally cannot take place without the use and supply of goods and services such as arms and ammunitions, military wears, food for soldiers, payment of salary for arm personnel’s etc. For parties who benefit from war it is seen as good business because profit would be made from the procurements of arms, ammunitions and rendering of military services.

Now the danger in the relationship between commerce and arm conflict is that in a bid to always be relevant actors (PMC) who supply ammunitions and military services during arm conflicts would not want conflict to end and would do anything to develop more sophisticated weapons and deadly strategies to make warfare easy for their customers. These weapons and strategy in the long run endanger our common humanity. For instance the chemical bombings used in Hiroshima and Nagasaki Japan till date still has effects in the populace, waters and farm lands.

Recent report had it that the Niger Delta region in the Nigeria is now inundated with British and American private military companies (PMCs) engaged in security services for their clients in the oil and gas industry. The story titled The mercenaries take over and published on February 22, says no fewer than 10 such companies, prominent among them Control Risk which has on its payroll the former body guard of Diana, the late Princess of Wales, Erinys International and ArmorGroup, currently operate in the restive Niger Delta, some through spurious partnerships with local companies. This evokes a disturbing picture of an imminent cataclysm in a region now credited with one of the largest concentration of small arms in the world.

4.2 ROLE OF PRIVATE MILITARY COMPANIES IN ARM CONFLICT

A private military company (PMC) is a private company providing armed combat or services. They refer to their staff as security contractors or private military contractors. They also refer to their business generally as private military industry or the circuit

A number of reports have indicated that private military companies have played a central role in some of the most sensitive activities of the Military, CIA and other government and non-government organizations during arm conflict. According to a 2008 study by the Office of the Director of National Intelligence, private contractors make up 29% of the workforce in the United State Intelligence Community and cost the equivalent of 49% of their personnel budgets.

These activities include arbitrary detention and clandestine raids against alleged insurgents in Iraq and Afghanistan, involvement in CIA rendition flights, joint covert operation, trained or supplements official arm forces in service of government, employed by private companies to provide bodyguards for key staff or protection of company premises especially in hostile territories, etc. Employees of PMSCs have been involved in the transport of detainees from pick-up points (such as Tuzla, Islamabad, and Skopje); in rendition flights to drop-off points (such as Cairo, Rabat, Bucharest, Amman, and Guantanamo); and in building, equipping, and staffing the CIA’s “black sites. In 2007, the American Civil Liberties Union (ACLU) filed a lawsuit against Jeppesen DataPlan, Inc., a subsidiary company of Boeing, on behalf of five persons who had been kidnapped by the CIA and held in overseas secret prisons maintained by the United States

4.3 PRIVATE MILITARY COMPANIES AS MODERN DAY MERCENARIES

Private Military Service Companies (PMSCs) are the modern reincarnation of a long lineage of private providers of physical force, such as corsairs, privateers, and mercenaries. PMSCs are non-state entities operating in extremely blurred situations, where the lines between what is allowed and what is not are difficult to identify.The new security industry moves large quantities of weapons and military equipment. It provides services for military operations, recruiting former military as civilians to carry out what has been labeled as “passive or defensive security”. What the Geneva conventions prohibited via mercenaries is what these PMSCs try to bring in through the back door.

According to the definition under Article 47 (2) of Additional Protocol I, to be considered a mercenary the person has to fulfill the six conditions set out in that instrument. A mercenary (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.

The definition of a mercenary under the UN Convention covers all the criteria of Additional Protocol I with the exception of “does in fact take a direct part in the hostilities.” In addition, the UN Convention includes “any other situation” in which a non-national is recruited to take part “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.” Whereas Additional Protocol I only applies to international armed conflicts, the UN Convention covers both international and non-international armed conflicts. Furthermore, the UN Convention makes the recruitment, use, financing or training of mercenaries an offense under international law and implies that any foreigner taking part in any violent activity aimed at provoking a change of regime through a coup d’état during peacetime may be considered a mercenary. But not all state has signed and/or domesticated this law.

A number of the activities fulfilled by PMSC may meet the requirements contained in the international instruments regarding mercenaries. Also, the recruitment of former militaries and law enforcement personnel as “security guards who would be ’exposed to great risks including but not limited to the threats inherent in a war situation,” included as a clause in a number of contracts that the private security contractors signed, is extremely close to the element of the definition that specifies that the mercenary must be specifically recruited “in order to fight in an armed conflict. Even if they do not conduct offensive operations but have been recruited to protect military objectives, “security guards” may be targeted by the enemy who consider them as being recruited in an armed conflict. A number of activities conducted by PMSC employees may be considered direct participation in hostilities, such as the involvement of Blackwater employees in Najaf, Iraq, on 4 April 2004.

Even though the main motivation of many of the private contractors engaged by PMSCs may be private gain, it is extremely difficult to prove this in court. Moreover, for many private guards, the motivation is a mixture of monetary gain, the “excitement and adrenaline” of adventure, and the possibility to put in practice all of their training, as. PMSCs usually hire personnel who have been highly trained in dangerous and counterinsurgency operations such as members of US SEALs, or SWCC, the British SAS or the French Legion.

Each of the elements taken individually poses problems to classify PMSCs as mercenaries. For PMSCs and their employees to be considered mercenaries, all the requirements in the definition of the international instruments must be cumulatively met. In the absence of which it is my opinion that PMSCs are commercial firms legally registered in their home countries, a large number of which have obtained contracts from governments (the Pentagon and the State Department in the United States).

5.0 CHALLENGES COUNTRIES FACE IN RELATION TO SPIES, MERCENARIES AND PRIVATE MILITARY COMPANIES

The following are some of the challenges that countries faces in relation to spies and mercenaries:

Lack of accountability for human right violations that they have committed which has been partly due to the difficulties in the application of domestic laws to PMSC actuating in foreign countries as well as to the difficulties in carrying out investigations in failed states.

It has been argued by some scholars that Private military companies usually do not want an end to war so they are always involved in developing more sophisticated weapons and new war strategies which may endanger our common humanity. Just like those who created a virus for systems are also the once who created an anti-virus. So the virus would be spread so that persons can buy their anti-virus.

There are currently no globally accepted norms or legal framework applied to these private military firms.

No international court has jurisdiction over these corporations and there is no pre-existing mechanism in place bound by international law to account and manage for PMSCs use of force.

For instance in central BaghdadIraq on 9th October 2007, two Armenian women were shot dead when their car came too close to a convoy protected by Unity Resources Group (URG) contractors.URG employees opened fire as they felt threatened that the women’s car approached the convoy at high speed and was not going to stop this hired mercenaries were never prosecuted.

Also one of the most egregious known human rights violations by a PMSC is the shooting massacre perpetrated on 16 September 2007 by Blackwater personnel in Nisour Square, Baghdad. Seventeen people were killed and twenty others were severely injured although Blackwater came under heavy criticism it was never prosecuted. Blackwater has also been accused of fabricating documents to acquire unauthorized weapons, defrauding the USA government, and tolerating the widespread use of steroids and cocaine by its personnel. Only after the implementation of a new Status of Forces Agreement in January 2009 and the cancellation of Coalition Provisional Authority Order 17 which had granted immunity to contractors was the government of Iraq able to deny Blackwater’s application for an operating license. However, the company still had a contract with the U.S. State Department, and some Blackwater personnel were working in Iraq at least until September 2009.

6.0 CONCLUSION

The paper has successfully examined the legal status of spies and mercenaries, with a look at various conventions, a look at the role of private military company as modern day mercenaries, commercialization of soldiery skills and Challenges countries faces in relation to the use of spies and mercenaries.

Emmanuel Agherario is a legal practitioner, content creator and a project management professional. He is an Associate at C.V.C Ihekweazu SAN & Co.

You can reach him via

Email : agherarioemmanuel@gmail.com

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