The armed conflict between Azerbaijan and Armenia which was over the disputed region of Nagorno-Karabakh had developed quite an interesting twist with Turkey projecting itself as a ‘big’ brother of Azerbaijan and throwing its weight behind Baku and sending Syrian mercenaries to fight in the conflict. Ankara’s involvement in the conflict of the Caucasus is another portrayal of its hegemonic ambitions in its neighboring region.
Turkish foreign and military policy is now said to have permanently embraced proxy warfare as its policy. It had sent mercenaries from Syria to Libya in order to support the Libyan Government of National Accord against Khalifa Haftar. He is the Libyan strongman and Colonel Gaddafi’s erstwhile deputy backed by UAE and Russia. The economic gains pledged by Turkey are the primary motivation for mercenaries. Turkey has also promised monetary compensation for the families of mercenaries in case of death and Turkish citizenship.
Turkey’s actions have also received support from its South Asian ally Pakistan where social media handles considered close to the ruling dispensation have supported Ankara’s move and it is also believed that mercenaries from Pakistan will also be joining their Syrian counterparts in Nagorno-Karabakh. Islamabad’s own policy of supporting and using proxy outfits in its neighborhood is no longer a thing of disguise. This article intends to find the status of mercenaries under international law. It also seeks to know whether the use of mercenaries in armed conflicts is lawful or not.
Since the ancient ages mercenaries have been used by kingdoms for protection from outside attacks. Cyrus the Younger of Greece hired a mercenary group called The Ten Thousand to fight against his brother.
The Varangian Guards were used by the Byzantine Empire to serve as personal bodyguards of the royal family and guard the frontiers. These loyal guards played an instrumental role in keeping the empire together. However, when the Western Europeans sacked Constantinople during fourth crusade, the mercenaries lost trust.
The White Guards were another group of brutal mercenaries famous for their wars in Italy. John Lockwood, a famous veteran of the hundred years’ war, commanded these mercenaries to fight mercilessly.
Mercenaries were also witnessed during second world war when an American group by the name of The Flying Tigers comprising of American volunteer pilots fought against the Japanese during the latter’s intrusion in Burma (Myanmar).
In recent years, mercenaries exist in Syria, Afghanistan, Libya, Sudan and Pakistan etc. The use of mercenaries has grown extensively given the changing nature of warfare. It has the potential to escalate to nuclear conflict. Hence, countries for reasons of anonymity prefer mercenaries over conventional forces.
As defined under Article 47 of the Additional Protocol I to the Geneva Conventions, a mercenary is any person who is:
- specially recruited locally or abroad,
- does, in fact, participate directly in the hostilities,
- 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
- neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict;
- not a member of the armed forces of a party to the conflict; and
- has not been sent by a State that is not a party to the conflict on official duty as a member of its armed forces.
This definition provided under International Humanitarian Law is quite restrictive under its 6 points. It is pertinent to note that International Humanitarian Law does not term hiring and use of mercenaries as unlawful but at the same time, it does not have the right to be treated as a prisoner of war. It seems that the Geneva Convention does not deal with the question of legality or illegality of mercenaries. However, there are countries like Canada and South Africa whose manuals on Law of Armed Conflict explicitly designate mercenaries as unlawful.
The 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries declares the use and recruitment and any kind of support to mercenaries as unlawful. The convention defines a mercenary as any person who is not a member of the armed force which is currently a party to the conflict. It goes to the extent of declaring the use of mercenaries as being violative of the principles of sovereignty, territorial integrity of a state, and right to self-determination of the natives of the concerned state. It stipulates prosecution and extradition for persons indulged in the use of mercenaries. The Report of the Special Rapporteur on the Question of the Use of Mercenaries describes the usage of mercenaries in an armed conflict as violative of human rights and principles of self-determination and provisions of the UN Charter.
Further, the 1970 Declaration on Principles of International Law, Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations states that: “every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.”
The ICJ in the Nicaragua Case held that the principle of non-intervention prohibits a state from intervening directly or indirectly, with or without armed force in another state and there is also a prohibition on direct or indirect intervention or direct or indirect use of force in international relations.
In Democratic Republic of Congo v. Uganda, the ICJ held that an unlawful armed intervention after reaching a certain magnitude and duration, would amount to a grave violation of the provisions of Article 2(4) of the UN Charter.
The mercenaries’ course of action involves potential and actual use of force. Thus, they have indulged in heinous war crimes like mass murders, rape, drug trafficking, sex trafficking, etc. Consequently, there have been a number of voices calling for their regulation and changes in the conventional law regarding mercenaries. The main pitfall in the UN Convention against Mercenaries is that it excludes Private Military Security Companies (hereinafter PMSC) from its ambit.
These PMSCs provide a number of services. Ranging from providing security to notable personalities and providing safety to industrial units. Protection of oilfields to other strategic areas like seaports, airports, military bases, etc. The way in which these PMSCs function have entailed serious consideration for their regulation. Thus, the UNHRC has formed a working group on mercenaries by way of Resolution 7/21. The aim is to monitor and study the functioning of mercenaries and the allegations of human rights violations. Also, to suggest possible regulatory framework and changes in the present convention.
Throughout history, mercenaries have facilitated the growth of terrorism. They have spurred insurgency in various regions ranging from Syria, Afghanistan, almost the entire North America, etc. As noted by Antonio Guterres, the present Secretary General of the United Nations, these mercenaries, along with fighting in the conflict, pave the way for transnational crimes and violent extremism under the shadowy nature of their activities.
The international community must condemn Turkey’s use of mercenaries in the volatile region of Nagorno-Karabakh. Ankara needs to realize that its aim of regional domination on Iran, Saudi Arabia, Egypt, and partner-cum-rival Russia is baseless. It is costing thousands of civilian lives. The international community should learn to call a spade a spade. It should invoke the convention to hold Turkey liable under international law. There is an urgent need to incorporate possible changes to the dormant convention. To bring it at par with the geopolitical aspirations of 21st century.
Aditya Raj is a student at National Law University, Jodhpur, India.
Suggested citation: Aditya Raj, Turkey’s Tryst with Mercenaries, JURIST – Student, Commentary, January 19, 2021, https://www.jurist.org/commentary/2020/01/aditya-raj-turkey-mercenaries/.
This article was prepared for publication by Kanak Mishra, a JURIST staff editor. Please direct any questions or comments to Kanak at commentary@jurist.org
