Mercenaries. Soldiers of fortune. Many names. Many groups. Many nations. They join battles all over the world
Photo: Generic photo of alledged mercenaries
09 April 2022 | James Porteous | Clipper Media News
A mercenary, sometimes known as a soldier of fortune or hired gun, is a private individual, particularly a soldier, who takes part in military conflict for personal profit, is otherwise an outsider to the conflict, and is not a member of any other official military.
Mercenaries fight for money or other forms of payment rather than for political interests. Beginning in the 20th century, mercenaries have increasingly come to be seen as less entitled to protections by rules of war than non-mercenaries.
The Geneva Conventions declare that mercenaries are not recognized as legitimate combatants and do not have to be granted the same legal protections as captured service personnel of a regular army.
In practice, whether or not a person is a mercenary may be a matter of degree, as financial and political interests may overlap.
A former US Special Forces commander has set up the Mozart Group, aiming to pass on his, and other veteran’s, frontline experience.
07 April 2022 | Simon Newton | Forces.net
A former US Special Forces commander has set up a military training centre in Ukraine aimed at passing on his, and other veteran’s, frontline experience.
The ex-US commander Colonel Andrew Milburn was the first US Marine to lead a Special Operations Task Force during the war against the so-called Islamic State and is now set on training Ukraine’s Special Forces in the military skills they lack.
Colonel Milburn’s called his organisation the Mozart Group – a counter to Russia’s infamous mercenary firm The Wagner Group.
Funded by donations those joining are paid an undisclosed fee for their expertise.
Colonel Milburn says he has already hired several British Army veterans and the scale and type of warfare happening in Ukraine is different to anything even he has seen.
An estimated 5,000 foreign volunteers have reportedly headed for the Ukrainian war zone to join a loosely organised Ukrainian Foreign Legion.
The ex-US commander says many that have lied about their military experience are now paying the price and emphasised the need for an assessment screening.
He says he was drawn to Ukraine by a desire to do something and even with the reported Russian troop withdrawal from Kyiv, he believes it is only a temporary pause as they consolidate forces in the east.
“The Russians are best in the defence. Yes, they’ve been inept in the offence but they use reams of mines and they’ve got no shortage of artillery shells.
“The barrages that they can bring down very quickly have to be seen to be believed.”
I’m Andy Milburn. Reporter currently on assignment in Ukraine for Task and Purpose. Author, key note speaker, former MARSOC regimental commander.
I’m leading The Mozart Group. We’re the antithesis of the Wagner Group. We are supporting our allies for freedom.
05 April 2022 | BBC
British military intelligence says 1,000 mercenaries from the Russian private military company, the Wagner Group, are being deployed to eastern Ukraine.
The group has been active over the past eight years in Ukraine, Syria and African countries, and has repeatedly been accused of war crimes and human rights abuses.
How was the Wagner Group started?
A BBC investigation into the Wagner Group has pointed to the believed involvement of a 51-year-old former Russian army officer, Dmitri Utkin. He is thought to have founded Wagner and given it its name – his own former call-sign.
He is a veteran of the Chechen wars, a former special forces officer and a lieutenant colonel with the GRU, Russia’s military intelligence service.
The Wagner Group first went into action during Russia’s annexation of Crimea in 2014, says Tracey German, professor of conflict and security at King’s College London.
“Its mercenaries are thought to be some of the ‘little green men’ who occupied the region,” she says. “About 1,000 of its mercenaries then supported the pro-Russian militias fighting for control of the Luhansk and Donetsk regions.
“Running a mercenary army is against the Russian constitution,” she adds. “However, Wagner provides the government with a force which is deniable. Wagner can get involved abroad and the Kremlin can say: ‘It has nothing to do with us’.”
Samuel Ramani, associate fellow at the Royal United Services Institute, says Wagner mainly recruits army veterans who need to pay off debts: “They come from rural areas where there are few other opportunities for them to make money.”
Who funds the Wagner Group?
Some suggest Russia’s military intelligence agency, the GRU, secretly funds and oversees the Wagner Group.
Mercenary sources have told the BBC that its training base in Mol’kino in southern Russia is next to a Russian army base.
Russia has consistently denied Wagner has any connection with the state.
The BBC investigation that identified Utkin’s links to the Wagner Group also links Yevgeny Prigozhin, the oligarch known as “Putin’s chef” – so-called because he rose from being a restaurateur and caterer for the Kremlin.
Many of Mr Prigozhin’s companies are currently under US sanctions for what it calls his “malign political and economic influence around the globe”. He has always denied any connection with the Wagner Group.
Where has the Wagner Group operated?
In 2015 the Wagner Group started operating in Syria, fighting alongside pro-government forces and guarding oilfields.
It has been active in Libya since 2016, supporting the forces loyal to General Khalifa Haftar. It’s thought that up to 1,000 Wagner mercenaries took part in Haftar’s advance on the official government in Tripoli in 2019.
In 2017, the Wagner Group was invited into the Central African Republic (CAR) to guard diamond mines. It is also reported to be working in Sudan, guarding gold mines.
Most recently, the Wagner Group has been invited in by the government of Mali, in West Africa, to provide security against Islamic militant groups. Its arrival in 2021 influenced the decision by France to pull its troops out of the country.
Samuel Ramani says the Wagner Group has about 5,000 mercenaries in total operating across the world.
What crimes is Wagner alleged to have committed?
The United Nations and the French government have accused Wagner mercenaries of committing rapes and robberies against civilians in the Central African Republic, and the EU has imposed sanctions on them for this.
In 2020, the United States military accused Wagner mercenaries of having planted landmines and other improvised explosive devices in and around the Libyan capital, Tripoli.
“Wagner Group’s reckless use of landmines and booby traps are harming innocent civilians,” said Rear Admiral Heidi Berg, director of intelligence at the US Army’s Africa Command.
What is the Wagner Group doing in the current Ukraine war?
In the weeks leading up to Russia’s invasion of Ukraine, it is thought Wagner Group mercenaries carried out “false flag” attacks in eastern Ukraine to give Russia a pretext for attacking, says Tracey German.
Now, messages have appeared on Russian social media recruiting mercenaries by inviting them to ‘a picnic in Ukraine’.
However, the mercenary groups go by other names, such as The Hawks.
Candace Rondeaux, professor of Russian, Eurasian and Eastern European studies at Arizona State University, says this may mark an attempt to steer away from the Wagner name because “the brand is tainted”.
Early in the morning of July 7, 2021, a heavily armed group entered the home of Haitian President Jovenel Moise and killed him in his bedroom. The assailants, reportedly dressed as U.S. Drug Enforcement Administration agents, were well-trained, organized, and appear to have received significant financing for the assassination. Haitian authorities have made a number of arrests in connection with this event, including of two U.S. citizens, though the parties primarily responsible for this assassination — and the precise motive — currently remain under investigation.
If the two Americans arrested in Moise’s assassination are found guilty, they will have clearly broken Haitian law. However, they may not have broken U.S. law. Under current laws and regulations, it is not illegal for a U.S. citizen to provide combat services as a foreign mercenary fighter.
The closest legal prohibition to U.S. mercenaries might be found in the Neutrality Act (18 U.S.C. §960). This statute, however, prohibits only acts carried out “within the Unites States” as part of a military expedition against a friendly country. Which raises the question: Should it be legal for U.S citizens to provide services as a paramilitary fighter against a foreign country? After all, this type of dangerous work is often contrary to U.S. national security interests.
Countries around the globe (e.g., the United Kingdom, France, Germany, and South Africa) have domestic laws that restrict their citizens from serving as foreign mercenaries.
While an argument might be made that U.S. citizens should be free to join in foreign conflicts as a matter of personal choice or conviction (as many did during the Spanish Civil War, for instance), I’d submit that in light of broader national security interests, the United States should take affirmative action in restricting U.S. persons from selling their services as foreign fighters.
To address this hole in the law, the Biden administration should amend U.S. export regulations to expand the definition of “defense services” to cover U.S.-based mercenaries. An amendment to arms trafficking regulations might also be an effective and practical approach, as opposed to seeking to pass a new statute via Congress.
Having devoted years to national security prosecutions as a career federal prosecutor, I view U.S. mercenary conduct as equivalent to the illegal supply of U.S. weapons to a foreign party.
The uncontrolled supply of weapons to foreign end users is contrary to U.S. national security interests as it can lead to local and regional instability. The government regulates the export of U.S. origin weapons for that reason, and the law should do the same for U.S.-origin combatants. Both weapons and combatants can pose a real and present danger to U.S. national security interests.
The History of Mercenaries
Mercenaries have a long, controversial history in international conflict, reaching back at least 3,000 years to the Egyptian empire under Ramses II, and they were later frequently used by the Greek and Roman empires.
A “mercenary” has been defined by a U.N. convention as a non-national person acting to overthrow a government or undermine the constitutional order of that nation motivated by private gain or material compensation. Britain’s use of Hessian mercenaries in the American Revolutionary War is part of the country’s lore.
Spanning the last century alone, foreign mercenaries were employed in conflicts in Africa, the Middle East, the Americas, and Southeast Asia. Mercenaries have often been employed to overthrow unstable governments in developing counties and provide the critical manpower (often with a limited number of combatants) for many small-scale coup d’états.
The International Convention against the Recruitment, Use, Financing and Training of Mercenaries (the U.N. Mercenary Convention) came into force in 2001. As noted at the time of the debate on this resolution, the convention represented an important effort by the international community to limit the harm and injury employing foreign fighters to support violent conflicts causes to civilian populations.
This is, in many ways, analogous to the 1982 U.N. Convention on the Law of the Sea, which — among other things — prohibits piracy, whether state-sponsored or by irregular partiers. The U.N. Mercenary Convention declares that the use and financing of mercenaries in armed conflicts represents an offense. Ratified by 35 member nations, the United States, Russia, and China have not ratified the treaty. The United States has not ratified the treaty in part due to the perception that prior U.N. protocols and resolutions on this topic have included different, if not conflicting, definitions and possible applications. In addition, some nations have argued that private military companies should be covered by the mercenary definition.
Lastly, given that that only 35 counties have ratified this convention, there exists a question as to whether ratifying it would have a meaningful substantive effect in creating an accepted norm of international law. Accordingly, the U.S. government may have simply decided that inaction was the better course to take, at least until a majority of other countries (and the major powers) were willing to commit to banning mercenaries.
Several countries have enacted domestic laws that restrict or prohibit their citizens from recruiting, financing, or serving as mercenaries in foreign-based conflicts. In Germany, for example, it is an offense for a citizen to join the armed forces of or a comparable armed association in a foreign state absent the approval of the Ministry of Defense.
In France, it is illegal for a citizen to be recruited or to act as a fighter in another nation’s armed conflict for personal benefit, or to act in hostilities or participate in acts of violence aimed at the overthrow of the governmental institutions of another state.
No U.S. law currently restricts or prohibits U.S. persons from serving in a foreign mercenary force. Only the U.S. government is restricted from hiring mercenaries under what is known as the Anti-Pinkerton Act of 1893. The Fifth Circuit interpreted this statute in a 1977 decision as prohibiting the government from using any organization that offers “quasi-military armed forces for hire.”
The U.S. government, however, is not restricted from employing private businesses that provide security services (also known as “private military companies” or “PMCs”) like those used in Iraq and Afghanistan. Mercenaries (as commonly defined) are generally individuals serving in foreign combat roles for money, while private military companies are legally formed entities contracted by governments for specific security related services.
As to individual U.S. citizens, one statute that is part of the Neutrality Act makes it illegal for any person “within the United States” to take part in “any military or naval expedition or enterprise” carried out from the United States against a friendly country. Court decisions have held that this law is designed to prohibit “the use of the soil or waters of the United States as a base” for unauthorized military expeditions against friendly foreign powers.
Attorney General Robert Kennedy declared in 1961 following the Bay of Pigs attack, “[t]here is nothing criminal in an individual leaving the United States with the intent of joining an insurgent group.” As written, unless there is evidence of any domestic act, the Neutrality Act does not prohibit a U.S. mercenary from acting outside of the United States.
A Possible Legal Solution
The law that comes closest to applying to individual mercenaries is the Arms Export Control Act (“AECA,” 22 U.S.C. § 2778 et. sec.) and the International Traffic in Arms Regulations (“ITAR,” 22 C.F.R. Parts 120-130). Under the International Traffic in Arms Regulations, it is illegal to export from the United States a wide range of “defense articles” (military technology and technical data) or provide “defense services,” such as conducting military training, on behalf (or for the benefit) of any foreign person or forces (“regular or irregular”) without a State Department export license.
It is illegal to provide a defense service without a license “whether in the United States or abroad.” Thus, unlike the Neutrality Act, there is no requirement for prosecution under the International Traffic in Arms Regulations that any of the service be provided “within the United States.” A willful violation of the regulation carries a maximum penalty of 20 years imprisonment and a $1 million fine.
Export control regulations have been effective in controlling the flow of military technology from the United States to foreign end users in Russia, China, Iran, Libya, Thailand, Syria, and North Korea; to rebel and insurrectionist groups (such as the Tamil Tigers); to terrorist groups such as Hizballah; and to various private international arms brokers (e.g., the notorious Russian arms dealer Viktor Bout). U.S. persons have also been prosecuted under the regulation for illegally providing a “defense service” to foreign persons.
Proposed Amendment to the International Traffic in Arms Regulations
The International Traffic in Arms Regulations definition of a “defense service” does not cover hired mercenary services in foreign conflicts. An amendment to this definition as a regulated “export” could address this concern.
Specifically, the definition of a “defense service” contained in 22 C.F.R. § 120.9(a)(1) that covers “furnishing of assistance” could be amended to include providing personal services, or material support, as a combatant to (or for the benefit of) a foreign power, person, or military force (“regular or irregular”).
Alternatively, a new Section 120.9(a)(4) could be added to specifically include providing personal services as a foreign fighter, or otherwise providing material support to foreign parties or forces, as a “defense service” requiring an export license.
Amending Section 120.9(a) is consistent with the objectives of the International Traffic in Arms Regulations in controlling arms trafficking (and defense services) and the broader concept of prohibiting material support to terrorists (in this case, foreign regular or irregular forces).
This could address the threat to U.S. national interests from U.S. origin mercenaries supporting foreign forces involved in both localized coup d’états and ongoing larger conflicts such as those in eastern Ukraine or Syria. Regulating mercenaries as a defense service could also cover a range of foreign combat conduct not covered by Section 2339A. As with other International Traffic in Arms Regulations regulated conduct, this approach would allow the government to approve or reject a “mercenary export license” on its specific merits and on a case-by-case basis.
The Status Quo Isn’t Good Enough
Arguments against amending the International Traffic in Arms Regulations “defense service” definition could range from substantive concerns to technical objections. First, some might ask, shouldn’t the primary objective be the enactment of a stand-alone statute adopting the U.N. Mercenary Convention into domestic law to prohibit mercenary activities (or otherwise follow the examples of France or Germany)?
It’s better to legislate a new law prohibiting or limiting mercenaries than to use the administrative or regulatory process. For example, look to the number of U.S. criminal code statutes adopted to conform to other U.N. resolutions or treaties, such as those prohibiting the production and use of biological and chemical weapons.
While this might represent a good legislative means to the desired end, it doesn’t have to represent a binary choice. The International Traffic in Arms Regulations serves to implement the language of the Arms Export Control Act that in “furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services.”
A modest expansion of the International Traffic in Arms Regulations definition of a “defense service” to (logically) include the “export” of combat services is entirely consistent with an existing statute. Congress clearly remains free to enact any relevant substantive law at any point in the future.
Secondly, tinkering with the International Traffic in Arms Regulations definition of “defense service” could risk opening all of the existing legal government contractor defense security businesses and their employees to potential criminal liability.
I’d suggest that this really is a straw man argument, given that those organizations that provide foreign services (training, etc.) already are regulated under the International Traffic in Arms Regulations (22 U.S.C. § 2752). In addition, private military companies operate as legally formed and licensed businesses that obtain government authorization for their activities through the contract process. Thus, the International Traffic in Arms Regulations would apply only if and when any private military contractors or their employees might engage in some non-licensed “defense service” of a mercenary nature.
Another objection might be that “if it ain’t broke, don’t fix it” with more unnecessary laws and regulations. After all, the actual number of freelancing, marauding U.S. mercenaries has to be minimal.
However, this assumes we truly know that mercenary activity is de minimis and, more importantly, believe that mercenary conduct (condemned around the world for its harm) is neither harmful nor a risk to U.S. national security interests (or at least is at an acceptable level). If the risk attendant from mercenary conduct (existing or in the future) to U.S. interests is real, however, it should merit action.
The International Traffic in Arms Regulations exists to restrict the flow of military technology and weapons — and associated defense services — from the United States to hostile foreign powers, non-state actors, and opportunistic brokers looking to profit from foreign instability and conflicts.
Under these regulations, government permission is required before U.S. citizens can provide any “defense service” in the form of combat training to foreign parties. Yet, there is no legal restriction on U.S. citizens travelling abroad to actually engage combat for hire in foreign conflicts. It is time to correct that gap in the law.
The recent attack in Port-au-Prince by mercenaries that killed Haitian President Moise is a stark reminder that even the most forceful U.N. resolution or treaty still is dependent on each member nation adopting effective domestic laws.
Currently, there is a clear absence of any substantive domestic U.S. law that restricts U.S. citizens from serving abroad as foreign fighters. The question now for policymakers is whether to continue with this status quo in which U.S. citizens are free to serve as foreign mercenaries for hire around the globe. Or should the current effective arms trafficking regulations be amended to include private foreign combat by U.S. citizens as a regulated “defense service”?
The first option is fraught with risks to U.S. national security interests. If the International Traffic in Arms Regulations currently controls both the export of weapons and technical data, and personal services relating to military training and development, why not include as an equally important provision — the export of mercenary services? The risks such unregulated private paramilitary conduct poses to U.S. foreign policy interests greatly outweigh the value of any “personal freedom” to engage in armed combat anywhere for personal profit.
Will Mackie has served for thirty years as a federal prosecutor with the Department of Justice, both as an assistant U.S. attorney and a senior trial attorney with the National Security Division, Counterintelligence and Export Control Section, overseeing numerous counterproliferation, export control sanctions, and arms trafficking investigations and prosecutions. He currently is an adjunct law professor teaching national security related topics at Washington & Lee University School of Law.