Laws on mercenaries in war zones

Syllabus
GS Paper 2 – Effect of Policies & Politics of Developed and Developing countries on India (India’s interests, diaspora)

Context
Ministry of External Affairs (MEA) recently acknowledged the tragic deaths of two Indian nationals recruited by the Russian Army as mercenaries.

Source
The Hindu| Editorial dated 18^th June  2024

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Laws on mercenaries in war zones

The deaths of two Indian nationals recruited by the Russian Army amidst the Russia-Ukraine  conflict underscores a concerning trend, of Indians being lured into international conflicts under false pretences.  This situation also highlights the broader issue of mercenary recruitment and the complexities of international humanitarian law.

Mercenaries

Mercenaries are individuals who are recruited to fight in an armed conflict but are not part of any official armed forces. They are typically motivated by financial gain rather than allegiance to a nation or cause.

The following table outlines the key differences between combatants and mercenaries:

Feature	Combatants	Mercenaries
Legal Status	Legally part of the armed forces of a state	Not part of any official armed forces
Motivation	Typically patriotic, serving their nation	Primarily motivated by financial gain
Recruitment	Enlisted or conscripted by a state’s military	Recruited from third-party states, often by private entities
Recognition under IHL	Recognized as lawful participants in hostilities	Not recognized as lawful participants
Protections under IHL	Entitled to prisoner-of-war status if captured	Not entitled to prisoner-of-war status
Legal Protections	Protected under the Geneva Conventions	Do not have the same protections under the Geneva Conventions
Direct Participation in Conflict	Part of military strategy and operations	Engaged in hostilities primarily for personal gain
Nationality	Nationals of the parties to the conflict	Usually not nationals of any party to the conflict
Employment Terms	Governed by state military laws and regulations	Governed by contracts with private entities or third parties
Examples	Soldiers, officers in national armies	Private military contractors, foreign fighters for hire

International Laws Concerning Mercenaries

• Article 47 of Additional Protocol I (API) to the Geneva Conventions
• Six Cumulative Conditions of a mercenary:

1. The person is specially recruited to fight in an armed conflict.
2. They take a direct part in hostilities.
3. They are motivated primarily by the desire for private gain and are promised material compensation significantly higher than that of regular combatants.
4. They are not nationals of any party to the conflict.
5. They are not members of the armed forces of a party to the conflict.
6. They are not sent by a state on official duty as part of its armed forces.

• No Prisoner-of-War Status: Mercenaries, if captured, are not entitled to the protections afforded to prisoners of war under the Geneva Conventions.
• Humane Treatment: Despite their lack of status, mercenaries must still be treated humanely according to the fundamental guarantees of humanitarian law as specified in Article 75 of API.
• Organization of African Unity Convention (1977):
  • This convention was established to address mercenarism in Africa, particularly in civil wars, where mercenary activity was prevalent. It provides a more expansive definition of mercenaries than API.
• UN International Convention (1989):
  • This convention criminalizes the recruitment, use, financing, and training of mercenaries.
  • It aims to promote international cooperation to prevent mercenary activities and includes a broader definition of mercenaries that covers those participating in efforts to undermine constitutional orders or territorial integrity of states.

Limitations of the Existing Regime

• Lack of Clarity in definitions:
  • There is no universally accepted and comprehensive legal definition of a mercenary, which creates challenges in enforcement and accountability.
  • The current definitions do not cover individuals who are integrated into the armed forces of another state, such as the Gurkhas in the British Army.
  • The definitions also fail to account for foreign advisors and trainers who might be involved in combat operations.
• Lack of Domestic Laws:
  • Many countries do not have specific laws that criminalize mercenary activity, leading to gaps in the legal framework that can be exploited.
• Lack of accountability from Private Military and Security Companies (PMSCs)
  • PMSCs provide a variety of services from direct combat support to logistical and security services.
  • PMSCs operate under loosely defined legal frameworks, making it difficult to hold them accountable under international law.
  • Example: The Wagner Group in Russia is a notable example of a PMSC that has been involved in the Ukraine-Russia conflict. Despite its significant military role, it operates with ambiguous legal status.

 Way Forward

Measures that can be adopted by Indian government are:

• Preventive Measures:
  • Public Awareness: Educate potential migrants about the risks and legal implications of joining foreign military services.
    • Pre-Travel Vetting: Establish strong vetting procedures for Indians planning to travel to conflict zones to prevent exploitation.
• Pre-Travel Approval and Monitoring
  • MEA Approval: Require Indian nationals to obtain pre-travel approval from the Ministry of External Affairs (MEA) for travel to high-risk areas such as Russia. This helps identify and prevent trafficking cases.
  • Learn from Other Countries: Adopt best practices from countries like Bangladesh, which has implemented the Dhaka Principles for ethical overseas recruitment, and Nepal, which has imposed travel bans to conflict zones to protect its citizens.
• Policy Framework
  • Address Distress Migration: Develop policies to tackle the root causes of distress migration, such as unemployment and economic instability, which make individuals vulnerable to exploitation.
    • Focus on long-term strategies to improve domestic job opportunities and economic conditions.
    • Combat Human Trafficking: Implement strict measures to prevent and penalize human trafficking.

Global efforts that can be adopted are

• Strengthen Bilateral Agreements:
  • Enhance cooperation with other countries through bilateral agreements to monitor and regulate the recruitment and movement of individuals across borders.
• Joint Task Forces:
  • Establish joint task forces with international law enforcement agencies to identify and dismantle trafficking networks that operate transnationally.
• Information Sharing:
  • Promote the sharing of information between countries to track and prevent the recruitment of nationals by foreign armed forces or mercenary groups.

• Improvement in International Law:
  • Clarify Legal Definitions: Work towards a more precise and universally accepted definition of mercenaries under international law to close existing loopholes.
  • Expand Legal Protections: Advocate for the inclusion of mercenary activities within the scope of domestic and international criminal laws to ensure accountability.

Conclusion

To prevent such incidents, India must strengthen legal frameworks, raise public awareness, and implement stringent pre-travel vetting. International cooperation is crucial to combat the threats of mercenary recruitment and human trafficking, ensuring the protection and dignity of all individuals.

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Related PYQ

Indian Diaspora has an important role to play in South East Asian countries economy and society. Appraise the role of Indian Diaspora in South-East Asia in this context. [ UPSC Civil Services Exam – Mains 2017]

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Practice Question

What do you understand by the term, ‘mercenaries. Discuss the implications of the recent recruitment of Indian nationals by the Russian Army? [250 words]

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