Overcoming Post-Colonial Myopia: A Call to Recognize and Regulate Private Military Companies

MILITARY LAW REVIEW

Volume 176 June 2003

OVERCOMING POST-COLONIAL MYOPIA: A CALL TO RECOGNIZE AND REGULATE PRIVATE MILITARY

COMPANIES

MAJOR TODD S. MILLIARD1

These, in the day when heaven was falling,

The hour when earth's foundations fled,

Followed their mercenary calling

And took their wages and are dead.

Their shoulders held the sky suspended;

They stood, and earth's foundations stay; What God abandoned these defended,

And saved the sum of things for pay.2

I. Introduction

The sovereign's resort to mercenaries is as old as history itself. Ramses II led an army composed largely of Numidian mercenaries in the Battle for Kadesh in 1294 B.C.,3 and King David used mercenaries to drive the Philistines from Israel in 1000 B.C.4 From 800 to 400 B.C., mercenaries played a relatively minor role in the Greek hoplite armies,5 but by the time Alexander the Great crossed the Hellespont to invade Persia in 334 B.C., specialized mercenaries comprised almost one third of his army.6 In 50 B.C., Caesar relied almost entirely on mercenaries for his cavalry,7 and 600 years later, many of the feoderati of Justinian's East Roman Army were mercenaries.8 Mercenary use continued unabated by William's army during the Norman Conquest,9 by Renaissance Italian city-states with their condottieri,10 and by Britain who resorted to Hessian mercenaries to fight American colonists during the Revolutionary War.11 Indeed, the sovereign's use of mercenaries predates the national armies that arose only after

the Treaty of Westphalia.12 Despite the recent success of modern standing armies, however, the mercenary and the sovereign's resort to his services endures.

In the twentieth century's latter half, international law attempted to limit states' practice and individuals' conduct regarding mercenary activities. Regulation of state practice concerned primarily states' recruitment and use of mercenaries for intervention against "foreign"13 self-determination movements, raising questions of the jus ad bellum. Regulation of individual mercenaries concerned their status and conduct during foreign conflicts, raising questions of the jus in bello. Oftentimes, the drafters of international legal provisions affecting mercenaries confused the principles of jus ad bellum and jus in bello, thereby producing questionable and

ultimately tenuous attempts at international regulation.14 More often, the drafters struggled to define adequately the ancient profession.15

An underlying political component further complicated the mercenary issue. This pit First World, former colonial powers wherein most mercenaries originated against Third World, post-colonial African powers that undoubtedly bore the brunt-and occasional benefit-of twentieth century mercenary activities.16 The Cold War's ideological divisions only exacerbated the political taint expressed in the debate and resulting international provisions aimed at mercenaries.17 Unfortunately, the first attempts at mercenary regulation focused on eliminating but one type of mercenary, the indiscriminate hired gun who ran roughshod over African self-determination movements in the post-colonial period from 1960 to 1980.18 As mercenaries evolved, however, mercenary regulations did not.

The focus on post-colonial mercenary activity continued as attempts at mercenary regulation progressed from aspirational declarations by the United Nations (UN)19 and Organization of African Unity (OAU)20 in the

1960s; to defining and discouraging individual mercenaries in Article 47 of Protocol I in 1977;21 to articulating states' responsibilities in regards to mercenary activities when the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries (UN Mercenary Convention) finally entered into force in 2001.22 As a result, today's international provisions aimed at mercenary regulation suffer from myopic analyses23 because, in law and fact, they are still directed at controlling post-colonial mercenary activities in Africa. This flawed approach ignores mercenaries' long history,24 their modern transformation into sophisticated private military companies (PMCs), and their increasing use by-not against-sovereign states engaged in...

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