CYIL 2014

PRIVATE MILITARY CONTRACTORS, PARAMILITARIES AND MERCENARIES … Mercenaries are essentially “hired guns” meant to directly participate in hostilities through fighting. Alternatively, PMSCs can be civilians who are providing logistics, training or any variety of services in a conflict situation. However, should a member of a PMSC engage in direct fighting, then they will likely fall under the definition of a mercenary, particularly if their intent was to fight and they were compensated for that service. 23 Paramilitaries tend to be distinct from mercenaries and PMSCs in that their aim is not always financial gain. While the definition of paramilitaries is somewhat broad and can vary, in general they are considered to be a militarized organization that, while similar to an official military in structure and training, is not affiliated with a State military or armed forces. They can often be private voluntary militia. Thus, people who take up arms as part of an organizational effort to oppose a government or other concern, but are not members of the armed forces, are likely paramilitaries. There is no question that there are Ukrainian citizen paramilitary groups fighting in eastern Ukraine, which is the likely label for the pro-Russian separatists. While both PMSCs and paramilitaries have the ability to engage in military like actions, and in fact often do, unless they are incorporated into the military of a State, they are in fact civilians, and thus lose much of the protection of combatants under international humanitarian law. As civilians, they would otherwise be protected in both international armed conflicts and non-international conflicts by the Fourth Geneva Convention, the Additional Protocols of 1977 and customary law. However, the point of taking up arms may shift some of the protections away from such fighters. Mercenaries do not have a right to protection as prisoners of war under Additional Protocol 1 and, arguably, customary international law, though States may choose to afford them that status. 24 At most, they are entitled to a fair trial for any crimes they committed. The debate surrounding mercenaries, private military companies, and the Responsibility to Protect is in large part a discussion over the role of the legal and social responsibility of many organizational actors in a conflict, particularly with regard to protecting human rights and assigning accountability thereof. 25 Human rights must be respected by all parties to a conflict, regardless of its character. In Article X of The Institute for International Law’s 1999 Resolution, entitled “The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties,” it was asserted that “[t]o the extent that certain aspects of internal disturbances and tensions may not be covered by international humanitarian law, individuals remain under the protection of international law guaranteeing fundamental human rights. All parties are

23 Ibid. 24 Rule 108, supra note 18.

25 James Cockayne, The Global Reorganization of Legitimate Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law, 863 International Review of the Red Cross 459 (2006), at 486.

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