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4.21 MERCENARIESThe act of being a mercenary is not a crime in customary international law nor in anytreaty to which the United States is a Party. 448 Under the customary law of war and the GPW,“mercenaries” receive the rights, duties, and liabilities of combatant status on the same basis asother persons. For example, being a “mercenary” or paid for participating in hostilities does notdeprive a person of POW status, if that person otherwise meets the requirements for POW status,such as by being a member of a militia that is part of the armed forces of a State. 449 Mercenariesmust comply with the law of war and may be tried and punished for violations of the law of waron the same basis as other persons. States that employ mercenaries are responsible for theirconduct, including their compliance with the law of war.Mercenaries are often nationals of States that are not parties to a conflict. In general, anational of a neutral State who, during an international armed conflict, commits hostile actsagainst a State or who voluntarily enlists in the armed forces of one of the parties should not bemore severely treated by the State against whom he or she has abandoned his or her neutralitythan a national of the other belligerent State could be for the same act. 4504.21.1 Treaties on Mercenaries. A number of treaty provisions are intended to repressmercenary activities. The United States has not accepted any such provision because theseefforts are not consistent with fundamental principles of the law of war. 451AP I denies “mercenaries” the right to be lawful combatants or POWs. 452 This provisionin AP I was adopted because certain States wanted to condemn mercenary groups that hadplayed a role in armed conflicts that had taken place in Sub-saharan Africa since 1960. 453448 See Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of CapturedMercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3457 (“The act of being a mercenary is not a crime under international law. An individual who is accused ofbeing a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian protections ofthe international law applicable in armed conflict, including those specified in the Geneva Convention Relative tothe Protection of Civilian Persons in Time of War (Aug. 12, 1949; TIAS No. 3365; 6 UST 3516). The specificrights which such an individual would be entitled to vary depending on whether the conflict is an internationalconflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled toprisoner-of-war status.”).449 Refer to § 4.5 (Armed Forces of a State).450 Refer to § 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State).451 See, e.g., The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D.Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OFINTERNATIONAL LAW AND POLICY 460, 469 (1987) (“[Article 47 of AP I] was included in the Protocol not forhumanitarian reasons, but purely to make the political point that mercenary activity in the Third World isunwelcome. In doing so, this article disregards one of the fundamental principles of international humanitarian lawby defining the right to combatant status, at least in part, on the basis of the personal or political motivations of theindividual in question. This politicizing of the rules of warfare is contrary to Western interests and the interests ofhumanitarian law itself.”).452 See AP I art. 47(1) (“A mercenary shall not have the right to be a combatant or a prisoner of war.”).453 BOTHE, PARTSCH, & SOLF, NEW RULES 269 (AP I art. 47, 2.2) (“The condemnation and outlawing of mercenarygroups and individual mercenaries who had played a substantial (and often unsavoury) role in the armed conflicts170