The mercenary moniker: Condemnations,contradictions and the politics of definition

Abstract

Despite considerable efforts, the concept of the ‘mercenary’ remains ill-defined within the scholarly literature on non-state combatants. In common usage, ‘mercenary’ is intended to function as a descriptive category of combatant, denoting certain unique or transhistorical properties. Instead, however, it is a highly subjective, imprecise and politicized term. This article critically analyses historical, legal and philosophical definitions of ‘mercenary’, and asks whether it is worth retaining the term as an analytical category at all. In short, the answer is no. The article’s exposition of the ‘mercenary moniker’ uncovers the statist political ethic that anchors different interpretations of the mercenary concept. It shows that conceptions of the mercenary are deeply rooted in a Westphalian political ethic of war and conflict that upholds the instrumentality of the state to notions of political community, morality and identity. Accordingly, it argues that ‘mercenary’ should be jettisoned from the academic conceptual vocabulary of non-state combatants, and proposes ‘freelance militant’ as an alternative. Properly contextualized, this alternative could make possible a conceptual vocabulary that is able to clearly distinguish between such freelance militants and other non-state combatants.

Keywords

conflict definitions international law mercenary violence war

Introduction

At first glance, a prolonged account of the conceptual meanings of the word ‘mercenary’ would seem unnecessary. Mercenarism is an old issue, as Percy (2003) reminds us, and besides, private military firms have taken force-for-hire to a new level of organization, making any exposition of the ‘mercenary moniker’ redundant. Few, if any, scholars treat mercenaries and private military firms as interchangeable actors, and scholars in international relations and political philosophy have generally agreed that the mercenary is conceptually distinct from other actors that take up arms (Avant, 2000; Baker, 2011; Fabre, 2010; Krahmann, 2012; Lynch and Walsh, 2000; Pattison, 2008, 2010; Percy, 2007a, 2007b). Despite general agreement on this front, however, the terminological settlement would seem to be in need of revision because, entrenched as it is, ‘mercenary’ remains an ambiguous and ill-defined concept. So, rather than seeking to define ‘mercenary’, as many have done before, this article asks whether it is worth retaining the term as an analytical category at all. In short, it concludes, the answer is no.¹ The article discusses the normative foundations that underlie the language used to discuss the type of combatant to which the term ‘mercenary’ is usually applied. It looks closely at prominent definitions of the term as it appears in historical, legal and philosophical inquiry, and critiques the ways in which ideas of the mercenary are generated and circulated. It shows that conceptions of the mercenary are anchored to a Westphalian political ethic of war and combat that upholds the instrumentality of the state to notions of political community, morality and identity.

Interrogating the definitional boundaries of the term ‘mercenary’ addresses two problems. First, it serves the methodological aim of unpacking the term, which is commonly used to denote a type of combatant that is distinct from others. Upon closer inspection, however, the properties of the mercenary are seen to be analytically indistinguishable from those of other types of combatant. The second and more interesting reason for interrogating definitional boundaries gets at the cause of definitional ambiguity, which is that ‘mercenary’ is less a class of combatant than it is a political judgement that carries with it normative assumptions about a hierarchy of ‘rightful’ combatants. In some discourses, the mercenary moniker seeks to disqualify on moral grounds a particular type of war-fighter through a strategy of discursive negation that privileges particular types of combatant. In others, the properties of the mercenary are rooted in an ontological preference for Westphalian conceptions of war that confer special privilege upon state-enacted warfare and are suspicious of those that operate outside the legitimate control of sovereign states (Percy, 2007a). The result is a conceptual muddle that upholds a deeply value-laden construct that is normally presented as an objective class of combatant.

Though the subject of this critique is the term ‘mercenary’, there is a broader point to be made about the epistemological and political origins of concepts themselves. The internal composition of a concept is always constituted by the epistemological predilections of its authors. Thus, the boundaries of ‘mercenary’ – who is included in the term’s legal, historical and moral ambit – are by no means neutral. Definitions are established through acts of discursive creation and imbued with the disciplinary assumptions of their authors. After all, concepts, like theories, are ‘always for someone and for some purpose’ (Cox, 1981: 128). Over time, the circuitry of discourse about a particular concept generates a sense of permanence, normalizing the concept’s place in the lexicon. The purpose of the present article is to challenge this conceptual staying power, to reflect upon the heterogeneous meanings and applications in different strands of legal, historical and philosophical literature, and to posit an alternative.

The mercenary moniker

To appreciate the significance of this project, it is necessary to observe exactly how the statist ontology is built into the very meaning of ‘mercenary’. Therefore, the following sections unpack historical, legal and philosophical uses of the term. The discussion is divided along these lines because of the different epistemological starting points of each approach. Historical definitions share an inductive approach to defining their subject, drawing ideal-types from particular observations in order to ‘clarify history’ and organize ‘certain aspects of social life into internally consistent, logical constructs’ (Lawson, 2012: 219). They seek to articulate the characteristics of mercenaries that enable transhistorical distinctions between the mercenary combatant and other forms of state and non-state combatant. But, as will be demonstrated, the historical characteristics of the mercenary are pegged to notions of ‘foreignness’ that are unclear and often come with Westphalian inflections.

International law definitions suffer from many of the same conceptual pitfalls as historical definitions. What make them particularly fraught are the politicized geneses of the particular vernaculars that have been adopted in international law. While the authors of law aim to establish inductive definitions of ‘mercenary’ derived from observable traits, legal formulations are conditioned by the deductive suppositions of their framers. This critique is rooted in the social constructivist perspective on law. As Elke Krahmann (2012: 346) observes, ‘historical, social and ideological contexts play an important role in attributing particular meanings to legal texts’. Just as social forces act upon the interpretation of law over time, so too do these forces act upon law at the moment of its inception. Epistemologically, the retroductive process of crafting an empirically grounded definition to suit the normative interests of that definition’s authors injects the political interests of the state directly into the definition. Put more plainly, the historical moments in which international legal definitions were established bear heavily on how the ‘mercenary’ is constructed.

Definitions from the just war tradition of political ethics are based explicitly on normative distinctions between morally desirable and undesirable forms of violence. In essence, these arguments attempt to define mercenaries on the deductive basis of how they transgress first-order moral principles in ways that other combatants do not. As will be discussed, such principles include claims about the motivation for, the intention behind, and the consequences of combat activities. Analytically, the problem with setting first-order principles about jus in bello as the standard of morality is that any combatant, mercenary or otherwise, can violate such principles. Thus, deductive principles of jus in bello do not provide an adequate way of identifying the mercenary. Indeed, definitions from the just war tradition differ from legal and historical definitions in that their normative content is made plain to see. The real value in analysing definitions from this tradition is that it exposes the ontological primacy of the state in the definition’s normative logic.

Definitions from history

The historical record of freelance militancy is expansive, and a rich body of historical scholarship traces the practice from Ancient Greece to the mid-20th century (Grundy, 1968; McCormack, 1993; Mockler, 1985; Percy, 2007b; Thomson, 1994). However, the seeming ubiquity of mercenaries in history gives rise to loose assumptions about transhistorical similarities. For historians and historically minded political scientists, the objective is to distinguish mercenaries inductively on the basis of empirical evidence drawn from historical records. But, on what evidence should an empirical definition of mercenarism rest? Should mercenaries be distinguished according to their different historical manifestations, or by transhistorical features of this class of combatants?² This section considers two approaches. First, it addresses distinctions between different roles that mercenaries have played, which give clues to the phenomenon’s common transhistorical features. Second, it addresses definitions of mercenarism and critically examines the meaning of ‘foreignness’ as the sine qua non of the mercenary. It is in the meaning of foreignness that the ontological bias on the part of historians towards a Westphalian conception of war emerges.

Historical types of mercenary

Kim Nossal (1998) builds on a classification of historical forms of the mercenary originally developed by historian Anthony Mockler (1985). The first class includes soldiers who sell their military services outside their own political community. These types of combatants take the historical form of ‘resident auxiliaries’, troops hired by a foreign sovereign in the early period of European state formation. The second class is the palace guard-type, hired by heads of state as personal bodyguards. The most famous example are the Swiss Guards, who remain the symbolic protector of the papacy. Historically, heads of state surrounded themselves with foreign guards because of the ruler’s mistrust of his own court and countrymen. Surrounding himself with ‘foreigners’, who were isolated by language, custom and popular disdain, permitted the leader a sense of personal security that could not be provided by ‘domestic’ troops. The third class is the short-term hire. Here, governments recruit or rent individual combatants who will fight the wars of the employer, subsequently dissolving the relationship once the conflict ends. The fourth class is the ‘vagabond mercenary’ of Mockler’s description. These combatants lack legitimacy because their employers lack legitimacy. They are professional or former soldiers who are brought together in a surreptitious and ad hoc fashion, and deployed as challengers to established authorities. However, while Nossal’s and Mockler’s commentaries provide a useful set of distinctions between mercenaries throughout history, the essential characteristics remain implicit. This leads to the most difficult task for any attempt to define ‘mercenary’: establishing a balanced definition that is broadly applicable to the different types of combatants included under the term’s umbrella.

Transhistorical properties of the mercenary

Peter W. Singer (2003: 40–48) provides the most complete empirical definition of ‘mercenary’. He sets out six essential characteristics of contemporary mercenarism that distinguish it from other forms of military organization. The first two are the most commonly cited features: mercenaries are foreign and they are paid to fight. The third is that the mercenary is an independent agent, is not integrated for an extended period of time into any national force and is bound only by the contractual ties of a limited employee. The fourth is that mercenaries are recruited surreptitiously or by circuitous ways so as to avoid legal detection or prosecution. Fifth, in operational terms, mercenary fighters are quite primitive in their organizational and command structures. And sixth, mercenaries are limited in their battlefield capabilities and are unable to undertake actions beyond small-scale combat and very limited basic training.

Of these six characteristics, the fourth, fifth and sixth are operational features drawn from observations of conflicts in postcolonial Africa or other areas of weak government. Rather than distinguishing mercenarism as such, they are more useful as ways of separating the vagabond freelance militants of postcolonial Africa from the private military firms of the early 21st century. The second feature, short-term economic gain, rests upon the limited logic of financial motivation (a point that will be discussed later). However, the precise meaning of ‘foreign’ goes largely unexplored and underscrutinized in the literature. What do scholars mean when they talk about the ‘foreign’ character of mercenary combatants? Being external to the fight seems intuitive, but what is really meant by this condition? There are three different ways in which the foreignness condition can be interpreted with regard to mercenaries, each of which betrays an ontological bias towards state-centric understandings of the mercenary concept. The remainder of this section will focus on the multiple meanings of foreignness that continually appear as an essential feature of mercenarism. The purpose here is to unsettle the meaning of foreignness, because it is not as clear as intuition might suggest.

First, the combatant participating directly in the fighting is foreign to the conflict itself. This condition implies that the combatant must have no identifiable connection, stake or interest in the outcome of the conflict beyond fulfilling the terms of the contract. However, such a construction gives no insight into the determinants of foreignness. Foreignness could be based on political community, territory, ideology, class, ethnicity, and so on. The political origin of the mercenary’s insidious foreignness comes from Machiavelli, who laid the foundational arguments against mercenarism that continue to (mis)inform the literature. Machiavelli’s thoughts on mercenaries are scattered throughout his writing on military organization and warfare in The Art of War, but the most focused criticisms appear in Chapters XII and XIII of The Prince. Though Machiavelli provides no systematic definition of the practice he proscribes, clues as to its essential features are discernible through the rhetoric.

Machiavelli’s claims are perfect illustrations of the normative content of empirical definitions of ‘mercenary’. Machiavelli is an unambiguous opponent of the practice of mercenarism because of the subversive element it introduces to the state. In a famous passage, he hints at the normative reasons for his disapprobation. Mercenaries, he says, ‘have no affection for you or any other reason to induce them to fight for you, except a trifling wage, which is not sufficient to make them want to risk their lives for you’ (Machiavelli, [1532] 1988: 43). Machiavelli’s claim here is somewhat misleading. All soldiers are paid a wage for their service, even those who are the exclusive servants of the Prince – a fact he no doubt understood. But, for Machiavelli, remuneration in the case of the ‘citizen soldier’ does not raise the spectre of perfidy. Rather, the reason that mercenaries are undesirable is that they are unattached to the civic enterprise Machiavelli sees as essential to the security of the state. Without attachment to a meaningful cause, he suspects that mercenaries will not risk life and limb for their employer. So, for Machiavelli, not having a stake in the cause is what makes mercenaries undesirable, not the fee-for-service arrangement. This suggests that there is something problematic with the mercenary’s detachment from the cause. Hence, we see the first iteration of the mercenary’s other essential feature: foreignness.

The implicit problem with mercenaries and auxiliaries in Machiavelli’s account is that they are morally and geographically unattached to the fundamental cause of the fight. This is the core of his case against mercenarism and the basis of many contemporary claims. Unlike the just war philosophers of subsequent centuries, he objects to the foreignness of mercenaries on strictly instrumental grounds. For Machiavelli, the purpose of creating a citizen militia was to foster loyal and obedient subjects that would respect the Prince and uphold the law, public good and virtu. Foreign soldiers undermine the civic virtue of sacrifice and weaken the bonds of loyalty between people and the sovereign – such loyalty being a particularly pressing need in the loosely structured Florentine state (Hornqvist, 2010). Mercenaries, in Machiavelli’s construction, are both characterized and morally disqualified on geographical and philosophical grounds: they are alien to the physical state and are without virtue because they subvert the state’s political objectives.

Prime historical counterpoints to the ostensibly subversive and virtue-less foreign mercenary are explained by Malet (2013), who discusses transnational identities that propel non-state combatants across jurisdictions. The International Brigades that fought in the 1936–1939 Spanish Civil War or the diasporic Jews who fought in the 1947–1949 Arab–Israeli War defy the necessary relationship between foreignness and virtue-lessness. More contemporary examples reside in international jihadists who traverse state borders to fight for their ideological cause (Hegghammer, 2010–2011). Historical scholarship has established the diverse motivations of these combatants. In the case of the International Brigades, many were moved by political commitments, ideas of virtue and hopes for the creation of a just society (Jackson, 1994). These geographical foreigners claimed to have a principled stake in their cause, rendering the problem of foreignness irrelevant through the ideological kinship that implicated them directly in the conflict.

A related meaning of foreignness can be seen in Peter W. Singer’s (2003: 43) interpretation, according to which foreignness means that a mercenary is ‘not a citizen or resident of the state in which he or she is fighting’. The immediate objection raised with this condition is that, under its terms, any combatant fighting beyond the borders of his or her home state is liable to be deemed a mercenary. Singer anticipates this by affixing additional criteria like independence, motivation, recruitment, degree of organization and services rendered in order to prevent intuitively ‘non-mercenary’ actors like United Nations (UN) peacekeepers or the International Brigades from being captured by the definition. To his credit, Singer’s definition is comprehensive. However, pegging citizenship or residency to the state in which the fighting takes place assumes a decidedly modern conception of political space. It hinges upon the state system and the presumption that states enjoy the exclusive right to wage war. Attempting to apply this state-based conception of foreignness to pre-Westphalian mercenarism would be an anachronistic projection of modern criteria to an era where they do not, and indeed could not, apply.

A third meaning of foreignness turns on the relationship between the agent and the principal. In this case, the agent is employed by a principal that is not his or her home state (Thomson, 1994). Percy (2007b) follows in this vein but includes the absence of ‘direct ties’ as a measure of foreignness. These are reasonable, if narrow, definitions that are unhelpfully constrained by a state-centric perspective that limits their applicability to a Euro-Westphalian context. Under this type of construction, the operative consideration is the nature of the connection between the mercenary and the client. However, the determining connections between the two are left unstated. Under what conditions can an ostensible mercenary claim legitimate connection with the state client such that the relationship cannot be considered foreign? Can the condition be citizenship or something else like diasporic identity? Examples of this second category – diasporic identity – might include the French Foreign Legion, which holds out the promise of future citizenship to non-French nationals in exchange for military service, and Israel’s Mahal programme, under which non-Israeli Jews are recruited to serve for up to 18 months in combat units for the Israel Defense Forces (n.d.).

Nossal (1998) provides a similar conceptualization of foreignness that does not hinge on citizenship. He suggests that a mercenary is a combatant-for-hire who sells his or her services outside his or her own political community. While this evades the problem of citizenship, it complicates the matter by expanding the range of political commitments and solidarities that can define ‘political community’. Here, Nossal is using ‘political community’ synonymously with ‘state’, but it is conceivable that political communities may extend beyond the boundaries of the state. In the case of diaspora communities, for example, individuals may have no citizenship or residency claim to a foreign state, but may claim it as their own on the basis of cultural, ethnic or other political solidarities. The peripatetic fighters of the Arab Spring fit this conception of political community, as do many ethnic Croats who travelled from abroad to fight in the 1991–1995 Yugoslav wars (Arielli, 2012). The possible meanings of ‘political community’ are extensive and make arriving at a precise definition of ‘foreignness’ more difficult.

From this discussion, a preliminary conclusion is that the analytical boundaries of ‘foreignness’ are unclear, and that its continued usage to anchor definitions of ‘mercenary’ contributes to the ambiguity surrounding non-state combatants. A large part of the problem is the political origins of the concept of foreignness at play here. The various meanings of ‘foreignness’ elucidated above are all pegged to conceptions of political identity that are bounded by clearly delineated political community. For Singer, Thomson and Nossal, the bounds of community are fundamentally Westphalian in character, however they are constructed. These authors use the exclusivity of the ‘state’ to anchor the distinctions between different types of combatants without explanation, thereby giving ontological privilege to state actors doing violence and eliding alternative conceptions of political identity/community that may drive individuals to arms. This is perhaps understandable. Mercenarism as an ad hoc form of military organization runs counter to the historical trends of bureaucratic centralization in Europe over the past three centuries. What is more, mercenarism runs counter to the Weberian ideal type of state that successfully monopolizes the legitimate use of coercion. Indeed, given the tremendous pull that Westphalianism exerts on international relations scholarship (Buzan and Lawson, 2012; Paul, 1999; Schmidt, 2011), it is little wonder that ontological statism is the tacit centre of gravity for the meaning of ‘foreignness’. Outside the academy, in international legal definitions of mercenarism, the politicized nature of the term is even more evident.

Definitions in international law

This section addresses international law definitions of ‘mercenary’, which carry the same statist ontology as historical definitions and do so more explicitly. The historical and political contexts in which international legal definitions were established bear heavily on how the ‘mercenary’ is constructed. Legal definitions crafted at global and regional levels developed in a crucible of state security interests and reflect the political projects of their state framers. They are, in short, firmly rooted in the historical circumstances in which they were authored. The resulting legislation is precisely enumerated and seemingly objective, but loaded with political biases and agendas.

Three major pieces of international legislation attempt to define or demarcate mercenarism as a specific illegal act: the Geneva Convention’s Additional Protocol I (1977), the Organization of African Unity’s Convention for the Elimination of Mercenarism in Africa (1977) and the UN Convention on Mercenaries (1989). These three legal frameworks each put forward idiosyncratic definitions of ‘mercenary’ in language that is refracted through the political agendas of their framers. Specifically, the Organization of African Unity’s definition was crafted as part of a postcolonial state-building project, while the Additional Protocol and the UN Convention were written as part of a broader project of consolidating the state’s monopoly over the legitimate use of violence. There is already a healthy academic literature on the practical and technical shortcomings of the language in these laws, especially with regard to the UN Convention and the Additional Protocol (Holmqvist, 2005; Kinsey, 2005; Schreier and Caparini, 2005; Singer, 2004; Zarate, 1998). Accordingly, the discussion here is limited to the political projects that gave shape to the wording of each definition and the subsequent construction of the legitimate non-state combatant.

Organization of African Unity

In the 1970s, the Organization of African Unity (OAU) pursued two major definitions of mercenarism: those of the Luanda Draft Convention and the Convention for the Elimination of Mercenarism in Africa. Both definitions were rooted in specific experiences with mercenaries during the decolonization conflicts in sub-Saharan Africa, and both reflect the political necessities of purging these destabilizing actors from the region. In 1972, after nearly two decades of white mercenary interference in liberation struggles, especially in the Congo in 1960–1965, the OAU Council of Ministers’ Committee of Legal Experts began the process of drafting the Convention that would eventually be adopted in 1977.

However, before the OAU Convention was adopted, the cause of anti-mercenarism was underscored by the spectacle of the Luanda trials. Thirteen white mercenaries were tried and convicted in June 1976 of charges that included mercenarism for their roles in Angola’s post-independence conflict during 1975–1976 (Burchett and Roebuck, 1977; Mockler, 1985). Prior to the trials, the Angolan government established a 50-member International Commission of Inquiry on Mercenaries to observe the trial and develop language for an anti-mercenary convention. The International Commission eventually endorsed a Draft Convention on the Prevention and Suppression of Mercenarism in 1976. Article 1 of the 1976 Luanda Draft Convention defines the crime of mercenarism as an act committed by the individual, group or association, representatives of the state and the state itself that, with the aim of opposing by armed violence a process of self-determination, practices any of the following acts:

Organizes, finances, supplies, equips, trains, promotes, supports or employs in any way military forces consisting of or including persons who are not nationals of the country where they are going to act, for personal gain, through the payment of a salary or any other kind of material recompense;

Enlists, enrolls or tries to enroll in the said force;

Allows the activities mentioned in paragraph (a) to be carried out in any territory under its jurisdiction or in any place under its control or affords facilities for transit, transport or other operations of the abovementioned forces.

In 1977, the original OAU Convention replaced the Luanda Draft as the language of record, formally entering into force in 1985. It is clear that the 1977 OAU Convention for the Elimination of Mercenarism in Africa sets out a definition that is animated by post-World War II intrastate conflict. Article 1 of the 1977 Convention defines the mercenary as:

anyone who, not a national of the state against which his actions are directed, is employed, enrolls or links himself to a person, group or organization whose aim is:

To overthrow by force of arms or by any other means the government of that Member State of the Organization of African Unity;

To undermine the independence, territorial integrity or normal working of the institutions of the said State;

To block by any means the activities of any liberation movement recognized by the Organization of African Unity (cited in Zarate, 1998: 132).

Interestingly, neither the Luanda Draft Convention nor the OAU Convention makes any claim to universal application. Rather, the conventions are unique to the region and reflect the historical experiences of African states during the decolonization and early postcolonial period. Reminiscent of early European state-building strategies, the conventions serve the interests of the nascent African states by delegitimizing and controlling non-state forms of violence (Thomson, 1994). The regional particularity of the conventions reflects concerns that OAU member-states had with furthering the causes of anti-colonial national liberation movements and consolidating the sovereignty of newly independent states. Viewing mercenaries as subversive and destabilizing threats to fledgling states, the conventions’ framers limited their definitions to the specific roles that mercenaries played in African conflicts during the 1950s–1970s.

The political objectives are conveyed in the respective preambles, which affirm the importance of state stability, anti-colonialism and self-determination, and convey an abiding suspicion of white political interference. The framers of each convention make no attempt at crafting a broadly applicable definition based on the mercenary’s alleged intrinsic characteristics. Rather, they focus on the particular characteristics of what mercenaries in African history have done: undermined independence movements, destabilized state institutions and contributed to the escalation of domestic conflict. The preamble to the 1977 OAU Convention outlines its framers’ intentions in no uncertain terms, vilifying mercenaries as grave threats to the ‘independence, sovereignty, territorial integrity, and harmonious development’ of OAU states, and affirming solidarity among these states in their resolve to eliminate the ‘subversive activities of mercenaries in Africa’. Finally, the framers resolve to eradicate from the African continent ‘the scourge that the mercenary system represents’. The Luanda Draft Convention went even further in its condemnation of mercenarism, unambiguously identifying the racist, oppressive and reactionary dynamics that characterized white mercenarism in Angola and Congo. In its preamble, the cause of national liberation is reaffirmed and situated in the postcolonial context. Mercenarism, it is declared, ‘is part of a process of perpetuating by force of arms racist colonial or neo-colonial domination over a people or state’. Quite clearly, mercenaries are regarded as hostile to the stability of postcolonial states and national liberation movements. Accordingly, the definition of mercenary is crafted to delegitimize actors inimical to those causes.

While the language of anti-colonialism and self-determination is explicit, what is excluded from the legislation also sheds light on the political objectives of the framers. Despite the language equating mercenarism with racism and oppression, both the Luanda Draft and the OAU Convention stop short of completely outlawing mercenarism. Prohibitions on its use are unambiguous, but the limited prohibitions leave open the possibility for governments to employ mercenaries of their own. Reasons for this exception, again, reflect the geostrategic interests of nascent states. With ‘processes of self-determination’ as the irreducible object of protection, the exclusions convey a tacit approval of an African state’s legal right to employ non-national combat forces in self-defence against insurgencies not considered by the OAU to be legitimate liberation movements (Sheehy et al., 2009; Taulbee, 1985). This is a loophole that is profoundly contextualized by the previous two decades of decolonization, where the causes of independence were often undermined by external forces. Chief among those forces were white mercenarism and neocolonialism, which are referred to explicitly in the preamble of the OAU Convention and clearly the subject of prohibition (Kufour, 2000). Tacit provisions for the use of mercenaries by African states permit future deployment of mercenary forces in the interests of self-determination without violating the letter or spirit of the OAU Convention. The result is the prohibition of mercenaries in some cases but not others. With regard to the definition, the OAU Convention does a fine job in terms of describing what mercenaries are in the African context, but not what a mercenary is as such. Thus, the definitions of ‘mercenary’ in the OAU and Luanda Conventions can only be seen as reflections of historical experiences and regional priorities, rather than objective articulations of a discrete actor in war.

International law definitions

Definitions in international law are less overtly politicized and attempt to codify a universal, legally binding and analytically sound definition of mercenarism. The first attempt at codifying an internationally applicable definition of ‘mercenary’ began at the 1974–1976 Geneva Conference, where states convened to update the 1949 Geneva Conventions dealing with humanitarian law in warfare. Decolonization movements and the Vietnam War cast a long shadow over the conference, so the proceedings unfolded in a diplomatic context preoccupied with issues arising from national liberation movements and asymmetrical warfare (Kritsiotis, 1998). Language on mercenarism adopted in the Additional Protocol reflected a global political environment quite different from that which had prevailed 25 years earlier.

Article 47 of Additional Protocol I sets out the penalty for mercenarism and its definition. Paragraph 2 sets out a six-part cumulative definition of mercenarism that would be much maligned in subsequent analyses. It declares that 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 (cited in Singer, 2004: 528).

Three years later, the UN General Assembly formed a committee to draft an international convention against mercenarism and its attendant activities. By 1989, the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries opened for signature and ratification, finally coming into force in October 2001. The UN Convention retains the same language as the Additional Protocol, with the exception of the removal of Section 2(b), the requirement that a mercenary take direct part in the hostilities. In subsequent years, the definitions in both pieces of legislation have been roundly criticized for being flawed, easily circumvented and impossible to prosecute (Holmqvist, 2005; Singer, 2004; Zarate, 1998).

Why was such flawed and easily circumvented language accepted? It seems quixotic for the international community to adopt something so glaringly ineffectual. The weaknesses of the law, however, can be explained by the biases of the framers towards preserving state control over force. In their eyes, the problem with mercenaries was not necessarily the moral repugnance of the mercenary’s foreign origins or financial motivation, but rather the fact that mercenaries operate outside of the purview of state control. Hence, the definitions in the 1977 Additional Protocol and the 1989 UN Convention were crafted with a particular type of non-state combatant in mind: the freelance militants of Africa’s postcolonial civil conflicts (Sheehy et al., 2009). Moreover, as Percy (2007a) argues convincingly, the weaknesses in the law suggest that the framers were willing to sacrifice enforceability for definitional precision. The law’s narrowness excludes from its prohibitions other forms of military personnel that states regard as acceptable or desirable, such as officers on secondment, special advisers, contractors attached to military units, or the aforementioned French Foreign Legionnaires and Mahal recruits. Hence, special exceptions are made for combatants privileged by states in paragraphs 2(e) and (f), which protect any personnel associated with a state’s armed forces. The resulting definition is a ‘tortuous contrivance’ muddied by the political objectives of the authors, resulting in conceptual confusion and ineffective legislation (Kritsiotis, 1998: 18). But, in effect, the legislation achieves the political goal of consolidating the exclusive right of states to control and dispense legitimate force.

Ultimately, the UN Convention and Additional Protocol I reproduce the conceptual problems with foreignness and, as will be discussed below, financial motivation. At the same time, they incorporate exceptions that permit the transference of states’ armed forces personnel to third-party states, only adding to the confusions of definition and legal implementation. In the end, these laws are not helpful ways of establishing a definition of ‘mercenary’ and founder on the same rocks as definitions from history. Addressing state-enacted definitions brings the trouble with legal definitions into focus: even if the inherent normativity in law-making is accepted, the definition is so egregiously gerrymandered around the boundaries of combatants ordained by states as legitimate that the law is impractical, weak and unenforceable. Certainly, the OAU and the UN Conventions advance definitions of ‘mercenary’, but the terms of those definitions are moulded to the interests of their authors, with political and strategic implications foremost in mind.

Definitions from just war theory

The final approach that seeks to define ‘mercenary’ is drawn from the just war tradition of political ethics. Indeed, the morality of mercenarism is a small element of just war theory literature and should not be taken as representative of the broader literature. But, in the literature discussed here, mercenarism is used to explicate the dimensions of jus in bello and jus ad bellum (Coady, 2008). These currents in just war theory are worth exploring in order to emphasize a perspective on mercenarism that differs from the more empirically minded positions of law and history. Definitions from this epistemological position are based explicitly on a normative distinction between morally desirable and undesirable forms of violence. In essence, these arguments define mercenaries on the basis of how they transgress moral principles in ways that other combatants do not. In order for normative arguments to obtain, they must be clear about the principles of jus in bello and how the ‘mercenary’ as a particular type of combatant transgresses those principles. Combatants that do not violate these principles cannot be logically termed mercenaries. Only in this way can the mercenary be considered a conceptually distinct actor on the basis of moral considerations. Typically, making these arguments involves an exposition of the problems with foreignness and financial remuneration, which, as discussed above, are not the secure foundations that intuition might suggest. But, these arguments also include other intrinsic and instrumental considerations, which will be discussed below. Methodologically, separating the inherently immoral mercenary from the moral non-mercenary is far more easily said than done. What complicates this approach is that any combatant, including supposedly ‘legitimate’ combatants like state soldiers, can violate the rules of jus in bello. Similarly, it is plausible that ‘mercenaries’ (or any other combatants) can also serve the higher-order principles at the intrinsic heart of jus ad bellum. Politically, it is the philosophical support for anti-mercenary claims about mercenary motivations, intentions and consequences that brings the underlying statist assumptions into sharpest relief. Not only are philosophical definitions too expansive in their ambit to properly define the mercenary as a mutually distinct actor; they also give ontological privilege to the state by anchoring their moral reasoning to an instrumental ethic of state centrality.

The following arguments against mercenarism follow the lead of Lynch and Walsh’s (2000) excellent philosophical inquiry into the major anti-mercenary claims. In their article, the authors reconstruct and critique the intrinsic, instrumental and political arguments that are often leveled against mercenaries. Ultimately, they arrive at the conclusion that it is exceptionally difficult to distinguish between mercenarism and the activities of state soldiers strictly on moral grounds. This is the conceptual argument. Politically, their claim is similar to the broader argument in the present article. Lynch and Walsh object to knee-jerk anti-mercenarism in political theory and argue that the case against mercenarism is fundamentally political: mercenarism runs contrary to the institutionalization of state control over violence. As a result, philosophical definitions of mercenarism are a matter of proclaiming what is wrong with the practice, thereby affirming by implication the rigorousness of the state’s claim to legitimate violence. The argument in the present article shares this conclusion but goes further, suggesting that the continuing use of ‘mercenary’ to refer to a particular class of combatant perpetuates statist claims to a monopoly on the legitimate use of force. Before pursuing that case, however, this discussion will address the conceptual claims.

The first argument that Lynch and Walsh put forth is that mercenaries are undesirable because of their negative implications for higher-order principles of democracy and accountability. Regarding accountability, the absence of legitimate control over the right to wage war is a distinguishing feature of mercenarism. By Pattison’s (2008) account, a mercenary is a combatant that fights outside of any system of legitimate authoritative control. Introducing market-based sources of violence circumvents the traditional state-based system of authorizing and controlling war, which, as some argue, is so morally significant that it can only be valued as an expression of free public will (Dorfman and Harel, 2013). This, says Pattison, is problematic because it leaves the mercenary entirely unaccountable for his actions – as opposed to state soldiers, who are subject to codes of military justice for transgressions. Pattison develops the normative concern about the moral importance of legitimate democratic authority, arguing that well-developed and legitimate mechanisms of control can facilitate the collective regulation of war. However flawed regulation may be in practice, it can curtail the use of force in morally desirable ways by diffusing normative expectations about appropriate conduct (Pattison, 2008: 151; for an empirical development of this point, see Avant, 2005).

Regarding democracy, the claim about the subversive threat posed by mercenaries is a contemporary echo of Machiavelli’s concerns that they erode civic virtue, as well as the state itself. In the 21st century, the concerns remain focused on the public good but are animated by deeper apprehensions about democratic illegitimacy. In terms of democratic illegitimacy, critics suggest that the employment of mercenaries signals a subversion of constitutional restraints on the power of the executive. Pattison (2008: 153) argues that democratic control over force is intrinsically valuable, and raising an army via contract permits governments to circumvent constitutional procedures for waging war. By turning to mercenaries, state executives avoid constitutional restraints and legislative oversight of the ultimate public policy decision. Thus, as Lynch and Walsh argue, mercenaries are democratically undesirable because they are symptomatic of a government that no longer commands the respect or allegiance of its citizens, and accordingly the decision to wage mercenary war suffers from a severe democratic deficit (Lynch and Walsh, 2000: 149).

The democratic deficit argument suggests that mercenaries undermine democracy, are unaccountable and circumvent regulatory mechanisms that states developed to control warfare. However troubling these maladies may be, they are outcomes of mercenary use and not inherent properties of a mercenary. Accordingly, these features do not distinguish between mercenaries and other non-state combatants, such as corporate military contractors, nor do they help to define mercenarism in the first place. Moreover, these features are overtly political and interest-based definitions that privilege the state monopoly over force. While normative criticisms about democratic legitimacy do indeed appeal to the democratic conscience, they remain unsatisfying as definitive properties of the practice of mercenarism. Moreover, the underlying political project of consolidating the democratic state’s control over force is a latent ontological premise enmeshed in the higher-order concerns over democracy.

A second charge levelled against mercenaries is based on their motivations. Here, the claim is that mercenaries have neither the right intentions nor the just cause that would legitimize the otherwise abhorrent act of killing. According to this line of argument, two demands must be satisfied in order for armed combat to be legitimized. First, the cause of fighting must be just: governments engaging in war must do so in the service of a just cause that legitimizes the pursuit of war. Second, combatants undertaking the morally problematic act of killing must be motivated by an intention that cannot be private financial gain. To the point that financial motivations are problematic, this claim is weak. There is nothing inherently wrong about doing something strictly for profit (provided that the task is not egregiously immoral). While many may find it distasteful to work strictly ‘for the money’, aesthetics are not sufficient grounds to disqualify a fee-for-service transaction. More significantly, ‘lucrepathology’ is not necessarily a characteristic exclusive to the mercenary (Lynch and Walsh, 2000). Certainly, mercenaries are to some degree motivated by the financial outcomes, but there is nothing to say that a state soldier cannot be solely motivated by financial reward, nor is it implausible that a combatant-for-hire may set personal standards and fight only in the service of a just cause. In such circumstance, the attitudes of the individual combatant matter more than the relationship of employment, meaning that any combatant can be unjust. Thus, the financial motivation argument is easily dispatched. A similar problem arises for arguments that make the virtuous motivations of a combatant the key criteria: since virtue travels well, it matters not if a virtuous combatant works for a public or private client (Baker, 2011). Should a supposed mercenary embody the virtues usually ascribed to a state soldier, then distinguishing between the two types of combatant on the grounds of virtue is unsustainable. The question, then, becomes what kind of just cause could distinguish state soldiers’ motives for killing from those of mercenaries?

Lynch and Walsh (2000) explore three possibilities: group motivation, defensive posture and state service. The first claim is that association within a larger group of combatants absolves individual combatants of moral culpability for fighting. In this case, the group dynamic provides a ‘sort of moral armour for a fighter’ (Percy, 2003: 726). Individual combatants have an inferior explanation as to why they kill because they take the decision to fight alone, whereas others are compelled by reasons greater than themselves. Mercenaries, as free agents seeking pay for their services, choose to fight and carry on their consciences the moral burden of both jus in bello and jus ad bellum. Yet there is one major problem with the argument of group motivation: the size of a fighting unit has no meaningful bearing on the justness of its cause. The argument implies that a corporate body of combatants is, by virtue of being corporate, more desirable than an individual combatant. But this assumes too much. Connection to a group is only desirable if the group itself is motivated by a just cause. It is plausible that an unaffiliated combatant fighting in the service of a just cause is morally preferable to a state soldier serving an unjust cause (Walzer, 2008). In such a case, the solitary, unaffiliated killer should be held in greater moral esteem. Therefore, group motivation cannot be a necessary part of what constitutes a just cause. At the political level of analysis, the instrumentality of the state is clearly at play in the moral logic of this line of thinking.

Beyond group motivation, Lynch and Walsh consider defensive posture and state service. It is here where the instrumentality of the state is most visible in their moral reasoning. They point to arguments about the defensive and non-aggressive orientation of armed groups, and the supposedly legitimate nature of state coercion. However, these two considerations are easily dispatched. The former claim is rebutted by the conceptual difficulty of distinguishing between defensive and offensive operations (Singer, 2003: 90–91). But, setting that aside, the latter claim is much more significant for the general argument being made here. Fundamentally, the moral claim about state service reveals most starkly the ontological privilege of statism in this debate. In fact, this is precisely what Lynch and Walsh argue. They conclude that the real reason mercenarism meets with general disapprobation is because it contravenes the logic that binds the rights and obligations of citizens to the state.

Ultimately, Lynch and Walsh are unsatisfied with moral claims against mercenarism and settle upon an outwardly political argument, one that is explicitly statist in its reasoning. Mercenarism, they say, is ‘inconsistent with the logic of the modern system of sovereign nation-states’ (Lynch and Walsh, 2000: 150). The value of the state, they maintain, is that the violence it enacts occurs within the array of duties and rights of citizenship, which allows combatants to act as citizen agents of the public good, and not as private, self-interested actors. Theirs is a pragmatic political case against mercenarism that says, essentially, that mercenarism is a lesser evil and worthy of prohibition. In fairness, however, there is a case to be made for the instrumental utility of maintaining the state’s control over violence. The state-based system of war regulation does have some desirable features, chief among them being the accountability mechanisms states bring to bear on combatants, the regulatory frameworks developed around warfare, and the democratic control over force (Pattison, 2008). However, this is an empirical argument that is valid insofar as it gets results, and beside the point when it comes to the deductive reasoning in the just war tradition. Moreover, it would be quite convincing if states did not have such a spotty track record of peacefulness. States can be, and indeed were in the 20th century, the greatest purveyors of violence – a point that Lynch and Walsh (2000: 152) readily concede. Even democratic states are not immune to aggressive warfare and the imposition of suffering on others through the use of armed force. Accordingly, the definition of mercenarism from a normative angle remains inconclusive and has to accord special moral consideration to the state in order to make its case.

In each of the arguments reconstructed above, it is possible to identify both the conceptual muddiness of ‘mercenarism’ and the instrumentality of the state in the normative reasoning. The arguments are primarily focused on the morally undesirable qualities in a combatant that are intuitively ascribed to mercenaries. While these arguments successfully identify what may be objectionable about the practice of mercenarism, none of the moral objections are sufficient to distinguish the mercenary actor from other forms of ‘legitimate’ combatant. And, like legal and historical definitions, there is an underlying political project at hand: the delegitimization of mercenarism and the consolidation of the democratic state’s control over coercive force. Instrumentally, objections to mercenarism are made on the basis that mercenaries act beyond the ambit of state controls and, as a result, are morally undesirable. The philosophical contortions do a great deal to bring out what is just and unjust in war. However, the levels of analytical abstraction on which they operate reveal the political undercurrents that lie beneath. Philosophical understandings of rightful combatants are inextricably tied to an instrumental ethic of state-centricity.

Conclusion: A proposed alternative

The position here is to develop an alternative to the term ‘mercenary’ that avoids the normative pitfalls that bedevil the mercenary moniker. The first of such pitfalls is ontological statism, which arbitrarily links the ethics of political violence to the state. The second is the circular moral logic that ascribes a term of opprobrium to a class of combatant that is empirically significant and deserves fair analytical assessment. The alternative suggested here is freelance militant. This term is much more descriptive in its orientation and thus avoids the pejorative connotations of ‘mercenary’ – a term that is intended both to describe and to condemn. In this sense, freelance militant recalls the historical features of the free companies (Mockler, 1985), and is consistent with contemporary labour market terminology about experts who earn livelihoods from contracts with multiple, often simultaneous, employers. It also avoids the ontological predisposition that defines the ethics of political violence in statist terms. Freelance militants are militant in that they trade in military labour, and freelance in that the actors are not salaried members of an organization but are, rather, agents who sell their labour to employers on an ad hoc basis. Now, this is not to suggest that extracting analysis from its normative context is possible: political terminology always comes with certain built-in assumptions. But, even if we accept the impossibility of analytically objective or neutral language, it is at least desirable to dispense with oblique and politicized language that is deeply enmeshed in normative state projects. The new term ‘freelance militant’ may not have quite the same ring as ‘mercenary’, but what it sacrifices in terms of style it gains in conceptual clarity. More importantly, it creates conceptual space for describing a historical type of actor without the politicized agendas built into that actor’s conventional moniker and opens the floor to debate about the increasingly complex array of non-state actors that participate in war.

Any alternative to ‘mercenary’ must also be contextualized in the increasingly fragmented field of security practice. International relations theorists have recognized that this fragmentation has led to changes in norms about the state’s monopoly on violence and has undermined 20th-century conceptions of interstate violence (Abrahamsen and Williams, 2009; Davis, 2009; Kaldor, 2007; Krahmann, 2013). Part of the broader phenomenon is the proliferation of different types of non-state actors that engage in different kinds of armed conflict. All of these actors – including guerillas and rebels, jihadists and vigilantes, militias, mercenaries and terrorists – have come under renewed scholarly attention (Fitzsimmons, 2013; Khalil, 2013; Malet, 2013; Reno, 2011). The contemporary iteration of freelance companies – the private military firm – has prompted systematic distinctions between paramilitary firms and mercenaries, as well as typologies of the private military itself (Kinsey, 2006; Mandel, 2002; Singer, 2003).

What these networks of actors participating in war represent is a new ‘field of agents’ (Bigo, 2011: 239) whose constitutive units make up the 21st-century battlefield. This field is characterized by the interpenetration of public and private spheres, the dissolution of inside/outside distinctions, and the enmeshment of state and non-state actors (Leander, 2011a). Here, such networks will be termed combatant assemblages, a concept derived from recent applications of social theory to international relations (Abrahamsen and Williams, 2011; Leander, 2011b; Sassen, 2006). As a non-state combatant, the so-called mercenary needs to be located and distinguished within these combatant assemblages if scholars are to comprehend it more thoroughly. The post-9/11 wars, not to mention the civil wars in Libya and Syria, illustrate this phenomenon where freelance militants, foreign fighters and other non-state armed actors have fought on all sides of a conflict (Gwin, 2011; Schmitt, 2013). As tangled combatant assemblages become more complex, the need for conceptual distinctions among the participants only increases. Therefore, in order to understand mercenarism and to develop policies towards non-state actors in combat, scholars need a conceptual vocabulary that distinguishes freelance militants from other non-state combatants. As a concept, ‘mercenary’ fails to do so.

To understand properly where this actor fits on the spectrum of non-state combatants, scholars must update the conceptual lexicon. As discussed earlier, the problem is that ‘mercenary’ is loaded with centuries of moral opprobrium that serves a very specific purpose: delegitimation of non-state violence and the affirmation of the state’s right to do violence. The result is a supposedly analytical category that is entangled in moral and political assumptions about the right way of combat. A similar circumstance arises with the ‘terrorist’ moniker. In this case, the assignation of ‘terrorist’ is a fundamental declaration of illegitimacy that subsequently bears upon political and legal responses (Cassese, 1989; Mendelsohn, 2005). Doing away with the mercenary moniker is an important step towards removing this deceptively normative concept from the analytical lexicon and developing a clearer picture of the many types of non-state actors that participate in war.

This examination of various definitions of ‘mercenary’ reveals both the contradictions and, more importantly, the underlying political projects at play. Together, these two considerations undermine the term’s ostensible descriptive neutrality. Much like ‘terrorist’ and other terms used to label subversive actors, ‘mercenary’ is laden with subjective meaning. It is a term of disapprobation which condemns what it means to describe, and herein lies the fundamental problem. The concepts ‘mercenary’ and ‘mercenarism’ are vessels for political projects, and those political projects are obscured by the routinized use of loaded terminology that is neither objective nor analytical. Rather than seeking to rehabilitate the term ‘mercenary’ through redefinition, scholars ought to jettison it in its entirety and replace it with something that is unburdened by centuries of moral opprobrium.

Footnotes

Acknowledgements

The author would like to thank Wayne S. Cox, Matthew I. Mitchell and Security Dialogue’s anonymous reviewers for their helpful commentary on earlier drafts of this article.

Funding

This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

Notes

Aaron Ettinger, Ph.D., teaches international relations in the Department of Political Studies at Queen’s University, Kingston. His research on military privatization has appeared in International Journal and Millennium.

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