In Hindsight: Guns for Hire—The Security Council and Mercenarism
Mercenaries, the proverbial soldiers of fortune, have been part of conflict for almost as long as conflict has existed. Historical records suggest that mercenaries were used by the Carthaginians against Rome during the Punic Wars some 2,400 years ago. During the Middle Ages, so-called condottieri (Italian for “contractors”) regularly provided fee-based military services to city-states. Following well-publicised mercenary involvements in Africa in the late 1960s and 1970s, the post-Cold War period gave new impetus to private military forces, including high-profile cases of mercenarism in Equatorial Guinea, Papua New Guinea and Sierra Leone by the late 1990s and early 2000s.
Recently, mercenaries have been heavily involved in illicit, destabilising activities in a number of countries on the Security Council’s agenda. These actions have taken multiple forms, including attempts to overthrow governments, as was the case in Equatorial Guinea in December 2017, just days before starting its two-year Council term; taking control of natural resources, as has been seen in Syria and the Central African Republic; fighting on behalf of governments, as happened in Nagorno-Karabakh in 2020; and helping to protect embattled national governments, as apparently occurred this year in the Central African Republic. With Council-mandated UN peace operations in some of these same countries, the activities of mercenaries could complicate the UN’s work, potentially undermining or disrupting the mission’s ability to fulfil its mandate.
No country provides a better current example of the proliferation and globalisation of mercenary groups than Libya. Private entities, in support of different parties to the conflict in the country, have been involved in deploying private military capabilities and violating, or attempting to violate, the Council’s arms embargo in Libya. The final report of the Panel of Experts on Libya released on 8 March noted that three United Arab Emirates-based companies, apparently involving Australian, South African, UK and US nationals, are alleged to have designed a plan, named Project Opus, to provide forces affiliated with General Khalifa Haftar’s Libyan National Army with “armed assault rotary-wing aviation, intelligence surveillance and reconnaissance aircraft, maritime interdiction, cyber, unmanned armed vehicles, and intelligence fusion and targeting capabilities”. The plan also included a component to “kidnap or terminate individuals regarded as high-value targets”.
The panel also reported allegations that the Russian entity Wagner Group was deployed to Libya in 2018 to “provide technical support for the repair and maintenance of armoured vehicles” for Haftar’s forces. By early 2019, the report continued, Wagner’s support for Haftar evolved to “provide operational combat support”, growing to an estimated deployment of 800 to 1,200. (Wagner Group has also reportedly been operating in Syria and the Central African Republic; the government in Moscow denies any ties to the group.) Finally, the panel alleged that Turkey’s SADAT International Defense Consultancy has recruited and trained Syrian fighters. Turkey is the largest military backer of the Libyan Government of National Accord.
Mercenarism is big business, often entailing multinational personnel and highly sophisticated weaponry. While mercenary groups are ostensibly private entities, they can allow sponsoring states to advance national interests by outsourcing conflict. Further complicating the picture, private entities occupy a spectrum from mercenaries to so-called ‘legitimate’ actors who, States argue, are not mercenaries and don’t participate in hostilities.
International legal and normative foundations against mercenary activities include the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries and the 1977 Convention for the Elimination of Mercenarism in Africa, negotiated by the Organization of African Unity (the AU’s predecessor). Under the 1989 convention, which has 36 state parties and entered into force in 2001, the recruitment, use, financing and training of mercenaries are “offences of grave concern to all States”, and international cooperation among states is to be developed and enhanced “for the prevention, prosecution and punishment of such offences”. The 1977 convention states that the activities of mercenaries pose a “grave threat…to the independence, sovereignty, territorial integrity and harmonious development of Member States of the Organization of African Unity”.
With a spectrum of actors engaged in different facets of conflict situations, there have been efforts to address the conduct of private military and security companies (PMSCs). In 2008, the Swiss Government and the International Committee of the Red Cross (ICRC) finalised the Montreux Document, which addresses “substantive legal concerns, such as the status of PMSC personnel under the 1949 Geneva Conventions, individual accountability for misconduct in different jurisdictions, and the authorities’ duty to oversee and screen the actions of firms for potential misconduct”. It also “articulates the most pertinent international legal obligations with regard to PMSCs and debunks the prevailing misconception that private contractors operate in a legal vacuum”. It is currently supported by 57 states as well as the EU, NATO and the Organisation for Security and Co-operation in Europe (OSCE). In September 2017, the Human Rights Council (HRC) established an open-ended working group tasked with developing an international regulatory framework relating to the activities of PMSCs (resolution 36/11). It first met in May 2019.
Despite the persistently destabilising effect of mercenaries on international peace and stability, addressing mercenarism has rarely been at the centre of global attention, and overall, the United Nations’ attention to the subject has been modest. In 1987, the UN Commission on Human Rights (the predecessor of the HRC) created a Special Rapporteur on the use of mercenaries. In 2005, the commission ended this position, creating a new Working Group on the use of mercenaries that focuses on “mercenaries as a means of violating human rights and impeding the exercise of the rights of people to self-determination”. Composed of five independent experts, the working group is mandated to work towards strengthening the international legal framework for the prevention and sanction of the recruitment, use, financing, and training of mercenaries, as well as studying mercenaries, mercenary-related actors and PMSCs, and identifying the sources and causes of mercenary and mercenary-related activities. In support of this work, it conducts country visits and reports on these visits to the HRC. Finally, it produces annual reports for the General Assembly on relevant thematic issues. Its most recent report, published on 28 July 2020, looks at the evolving nature of mercenarism and aims to “shed light on the pervasive secrecy and opacity surrounding mercenary and mercenary-related activities,” which, it notes, is “particularly stark when such actors are employed as an instrument to remotely influence armed conflicts, while their patrons, including States, deny involvement and seek to avoid legal responsibilities”.
The Security Council has held two sessions on the matter. The first was an 18 March 2003 meeting on the proliferation of small arms and light weapons and mercenary activity in West Africa, which resulted in the adoption of resolution 1467, the Council’s only dedicated resolution on mercenaries. The resolution expressed concern about “links between mercenary activities, illicit arms trafficking and the violation of arms embargoes that help to foster and prolong conflicts in West Africa”. In addition, it requested subregional states to “ensure that relevant measures adopted at the national, regional and international levels to combat these problems are put into effect”, including strengthening cooperation to identify those who “provide support for mercenary activities”.
The Council’s second consideration of mercenarism came on 4 February 2019 with a high-level debate on “Mercenary activities as a source of insecurity and destabilization in Africa”. The meeting was organised under the presidency of Equatorial Guinea, which has been the target over the past quarter–century of five attacks involving foreign mercenaries. As a follow–on, the Council appeared set to adopt a presidential statement in December 2019 expressing concern about the impact of mercenaries and their illicit activities in Central Africa. The text failed to pass silence on 30 December, and within two days, the penholder (Equatorial Guinea) was no longer on the Council; the presidential statement was not pursued. The draft recognised that mercenaries and mercenary activities constitute a threat to stability in Central Africa and condemned the “use, recruitment, financing, protection and training of mercenaries in order to impede the exercise of the right of peoples to self-determination, destabilize or overthrow governments or otherwise undermine the constitutional order, disrupt or compromise the territorial integrity, sovereignty and the rule of law of States as well as to commit abuses of human rights”.
The December 2019 draft statement was not adopted because of an issue highlighted during the Council’s meeting that February, namely distinguishing between illegal, destabilising mercenary activities and the activities of what are considered legitimate private military and security companies. The Working Group on mercenaries reiterated in July 2020 that there are legal definitions in the 1977 Additional Protocol I to the 1949 Geneva Conventions and the 1989 Convention, but they are “exceedingly narrow and difficult to apply”. It added that the international legal framework on the issue “reflects the specific historical context in which it was developed: namely a period characterized by decolonization, post-colonial wars and interventions in the internal affairs of newly independent States, especially in Africa”. Speaking at the open debate on 4 February, the UK said that “it is important to draw a distinction between mercenaries—a term clearly defined in international humanitarian law—and properly regulated and responsible private security companies”, while the US highlighted the need to “draw a sharp contrast between illegal destabilizing mercenary activities and the legal legitimate role that private military and security companies can play in many places”. South Africa, where one of the first post-Cold War private military firms, Executive Outcomes, originated, argued that the international community should “address the perception around the privatization and corporatization of security services, as such a role should be the sole responsibility of sovereign governments”.
With the rise in mercenarism in countries on the Council’s agenda, including in countries with UN peace operations, there may be a need for a better understanding of the issue. To reinvigorate the discussion started by Equatorial Guinea in 2019 and examine situations on its agenda more closely, the Council could hold an Arria-formula meeting with members of the working group on the use of mercenaries and other experts to explore the impact of mercenaries in specific countries and regional cases on the Council’s agenda. It could also consider this issue on a more regular basis, perhaps in a semi-annual or annual meeting.