Mercenaries and the law: Ron Smith criticises plans to criminalise mercenary activity and to enable New Zealand to ratify the Anti-Mercenary Convention.

• Author: Smith, Ron

Legislation now before Parliament will permit New Zealand to ratify the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries. There are reasons to doubt whether this is a good idea. To begin with, there is a substantial and unresolved problem with the definition of the central concept, and this fact is accepted by the relatively few states that are already party. More positively, there is some opinion that, properly regulated, private military companies (which seem to be the main target of the Convention) might provide a valuable niche service to some of the more troubled of the world, both individually and collectively.

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The International Convention against the Recruitment, Use, Financing and Training of Mercenaries arose from understandable African concerns about the influence of European mercenaries in the continent during decolonisation in the 1960s and early 1970s. These same concerns also gave rise to a very adverse treatment of the concept 'mercenary' in Protocol 1 (1977) to the Geneva Conventions of 1949. However, these events do not justify, in 2004, further anti-mercenary measures and, particularly, they do not require the ratification of the convertion against mercenary activity, about which even the existing small number of parties have considerable doubt. As the British Foreign Secretary said in his foreword to an official green paper on the subject, 'Today's world is a far cry from the 1960s when private military activity usually meant mercenaries of the rather unsavoury kind involved in post-colonial and neo-colonial conflicts'.

Before adopting further strictures we ought seriously to consider the basis of present anti-mercenary prejudice and, particularly, the services that private military companies might provide in the modern world. Suitably regulated and appropriately used, mercenaries might offer timely humanitarian protection and security in cases where individual states or the United Nations (for a variety of reasons) cannot act. The ratification by further states of the Anti-Mercenary Convention would also tend to reinforce the anomalous combatant status of persons deemed to be mercenaries and, thus, undermine the humanitarian protection of such persons. Notwithstanding all this, New Zealand has presently before Parliament a Bill to criminalise mercenary activity and to enable New Zealand to ratify the Convention. This is the prime focus of the comments that follow.

The purpose of the Mercenary Activities (Prohibition) Act 2003 is said to be 'to implement in New Zealand law New Zealand's obligations under the Mercenaries Convention' and the reason that New Zealand would want to do this is that,

Becoming a party to it demonstrates to the international community that New Zealand is among those countries that consider the recruitment and use of mercenaries to be unacceptable as a method of conflict resolution. Of course, the crucial question that follows is: why is the use of mercenaries necessarily unacceptable as a method of conflict resolution? It is also instructive to ask what company New Zealand would be in when it does ratify the convention.

In addition, there is an acute problem of definition. The definition used in the Convention (and Protocol) and in the Mercenary Activities Bill is so complex as to present insuperable problems in its application. The parliamentary select committee process made a number of changes in this respect, but the fundamental problem remains. The concept as defined in the Bill is such that virtually none of the activity that people refer to when they ordinarily talk about 'mercenaries' would be caught by the definition. On the other hand, it is possible that the New Zealand government could find itself in diplomatic difficulty over the extradition requirements of the Convention when faced with requests to extradite citizens of states that are known to be sensitive about these things.

To date, the Convention has not been ratified by any of the five permanent members of the Security Council (Britain, China, France, Russia and the United States). Equally, Australia, Canada, India, Japan and Germany are not parties. In fact only 25 of the 191 states of the world have ratified or acceded to the treaty. The full list of parties (as of April 2004) is: Azerbaijan, Barbados, Belarus, Belgium, Cameroon, Costa Rica, Croatia, Cyprus, Georgia, Guinea, Italy, Libya, Maldives, Mali, Mauritania, Qatar, Saudi Arabia, Senegal, Seychelles, Suriname, Togo, Turkmenistan, Ukraine, Uruguay and Uzbekistan. This is the company we would be in. It is not immediately evident why it is the company we should seek.

Two categories

The definition of 'mercenary', as amended in the select committee process, follows exactly that of the 1989 Mercenaries Convention, which distinguishes two categories of mercenary, depending on whether 'a concerted act of violence' is involved. Otherwise the definitional elements are the same in each case. Being a mercenary entails:

* fighting in an armed conflict (or...