Who Are Mercenaries?
Every information that comes out of Russian invasion of Ukraine is breaking news. After 16,000 foreign fighters/ mercenaries volunteered to defend Ukraine on President Zelensky's call, Russia responded by stating that, if caught the mercenaries will not be treated as prisoners of war but as war criminals, under international law.
The U.S. Department of Defense has reported that Russia is apparently recruiting Syrian mercenaries to fight in Ukraine.
After all this information, one begs to know:
what are mercenaries? And have they been used in any other armed conflict?
There is an 'International Convention against the Recruitment, Use, Financing and Training of Mercenaries', which has 17 signatories and 37 parties. The Convention prohibiting the recruitment, use, financing, or training of mercenaries, requires parties to take the appropriate measures to prevent and punish these acts.
Who Are Mercenaries?
Mercenaries are defined under Article 47 of Additional Protocol I to the Geneva Conventions, they are any 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.."
ICRC (International committee of the Red cross ) commentary on Article 47 also states that members of the armed forces of a party to the conflict who are not nationals of that party and who do not fulfil the above-mentioned conditions of the definition of a mercenary are entitled to 'prisoners of war' status.
According to Rule 108 of the Additional Protocol I, mercenaries do not have the right to combatant immunity or prisoner-of-war status. They may not be convicted or sentenced without previous trial. It should be noted that, mercenaries are not considered as combatants under Article 4 of the Geneva Convention III. But post falling into the power of the enemies, their treatment has to be humane, in accordance with Article 75 of Additional Protocol I. Unless they are wounded or sick, they do not fall under a protected category. Whether a mercenary may be treated as a 'prisoner of war' or not depends on State practise.
Have Mercenaries Been Used In Any Other Armed Conflict?
Just like the situation in Ukraine, in several other situations, foreign fighters/ mercenaries have joined or have been asked to join the plight of other countries. The treatment of mercenaries is based on the need of the situation.
Since August 2020, Mali has faced two coups. It has been reported that the transitional government of Mali has allowed up to 1000 Russian mercenaries to extensively train the people of Mali in counterterrorism, protection etc, activities. Mali has allegedly prepared this deal with Russian private military company Wagner Group. There has been no public acknowledgement/reference to this deal by either side and so one's guess is good as any.
The region of Nagorno-Karabakh in present day Azerbaijan is famous for conflict. After years of turmoil, this region in the South Caucasus finally saw some observance of peace, in line with the most recent ceasefire. However, the situation flared up again in September 2020, with the use of mercenaries by Azerbaijan. FIDH has stated that immediate withdrawal of mercenaries could alleviate the intensity of hostilities. Azerbaijan being a party to International Convention against the Recruitment, Use, Financing and Training of Mercenaries, is in violation of this convention.
The Wagner Group is a private military contractor company, based out of Russia. This Group is also active in Libya and Syria, and even in Central African Republic. The Touadéra government at Bangui, Central African Republic is denying the involvement of the Wagner Group in their conflict, but their presence is not a secret in Bangui. There is a possibility that actors besides or outside of the government have involved the Wagner Group in the Central African Republic conflict. As reported, the presence of mercenaries in Bangui is condemned by EU and also the UN, which has now started a probe into it.
Besides private military contracting groups, it has been reported that 4000 Tunisians are working as foreign fighters in Syria, about 1000-1500 in Libya and several others in Iraq, Mali, Yemen etc. The flow of mercenaries by Tunisia was condemned by the UN Working Group. A BBC investigation revealed that the Wagner Group has a huge role to play in Libya too.
While many countries have condemned Russia's actions against Ukraine, but the looming nuclear threat by Russia has resulted in no countries sending their army in support of Ukraine. Since President Zelensky's call several foreign fighters have now joined the war.
Ilya Nuzov from International Federation for Human Rights (FIDH), in his blog post on EJIL: Talk! has argued that 'foreign fighters' in support of Ukraine should be treated as combatants because they don't fall under the definition of 'mercenaries' and are part of the Ukrainian armed forces.
It has been more than a week since the Russian defence ministry alleged that the West are sending mercenaries in Ukraine. This allegation has not been addressed by either Ukraine or the West. But it's important to note that there is a difference in treatment of mercenaries by EU and the UN in African nations and when its closer to home in Europe.