Suspected Mercenaries in Libya

I really do more things than tweeting, but this morning I got up to find that the ICRC had sent out a message that simply stated the title of the Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977 and a link to the treaty.

I can only assume they’re doing it in response to the situation in Libya where it has been alleged that Gaddafi has been using mercenaries (from Chad? Nigeria? – They seem to deny it, claim to be ordinary African migrant workers) to back up his regime.

I find this interesting for a few reasons. The ICRC has tweeted the treaty with zero context whatsoever. As if this was a normal thing to tweet out on a Saturday morning in Geneva. But I hear they’re having a bad ski season, so that might explain it.

The other thing is that this treaty is often held up as an example of just how ineffective IHL is at regulating private actors such as mercenaries and private military companies in conflict.

A brief history of the treaty is that it was written in the 1970s when there were concerns that colonial powers and the then-Apartheid government of South Africa – both who were seen as wanting overthrow left-wing/Marxist/anti-colonial governments – were using mercenaries.

Yet you don’t even need a close reading of the treaty to realize what the problem is. According to Article 1:

1. A mercenary is any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflicts;
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;
d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflicts;
e) is not a member of the armed forces of a party to the conflict; and
f) is not sent by a state other than a party to the conflict on official mission as a member of the armed forces of the said state.

How could one possibly prove 1(a) and (c) in court? They have to do with motivation which, unless the person was stupid enough to write “HA! HA! Today I am a mercenary and I have been specifically recruited to fight and I am solely motivated by profit! HA! HA!” in their diary, would be something that is easy to challenge in any defence. Certainly if the person said that they were motivated by ideological factors, they would fall outside the definition provided.

As Geoffrey Best is often quoted as saying, “any mercenary who cannot exclude himself from this definition deserves to be shot — and his lawyer with him”.

So while I am sympathetic with the ICRC for reminding one and all about the relevant treaties applicable to the situation, there are some difficulties. I’m actually more concerned that this is fueling an anti-foreigner witch- hunt that seems to be taking place where anyone who is suspected of being a mercenary could be attacked while the situation is so chaotic. Certainly the ICRC could have tried to provide some context?

But even beyond linking to a rather useless IHL treaty, perhaps they might focus on Additional Protocol II (which Libya signed in 1978) or at least its customary provisions. While the application of APII is very rare (and it is a pretty weak Protocol) certainly it’s possible to argue that it’s a point where it is applicable? Or is that to make a normative judgement upon the status of the conflict?

Perhaps the best thing about this situation is to renew discussions about how to regulate private actors in conflict, along the lines of the 2008 Montreux Document.