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30paper if it is multinational and controlled by the United Nations, or consists of nationalforces which are no longer directly controlled by the contributing nations.In 2004, the ICRC announced that it would expand its contacts with the PMCindustry, recognising its role in conflict zones. The Red Cross also reaffirmed its stancethat contractors, including armed guards, are civilians entitled to the protection ofinternational humanitarian law. 102 In September 2008, the ICRC finalised the MontreuxDocument on Private Military and Security Companies, also referred to as the ‘SwissInitiative’. This initiative was intended to promote respect for international humanitarianlaw, and the signatories acknowledged their duty to control PMC. Australia, the UnitedStates and United Kingdom were among the original seventeen national signatories. Afurther twenty-four countries have since signed. 103Whether the UN’s legal definition can be strictly applied to today’s PMC in theGWOT is debatable—but these PMC have already achieved de facto legal status.PMC generally assert that they perform either supporting roles or security functions,meaning that they have no intention of ‘fighting in an armed conflict’. Furthermore,the operations in which they participate carry the official sanction of the UnitedNations and are therefore not ‘a concerted act of violence aimed at overthrowinga government’. Thus, PMC logically assert that they do not fit the UN’s definitionof mercenaries. The governments participating in Coalition operations in Iraq andAfghanistan apparently agree with this interpretation as they either have contractswith PMC to support their operations or have allowed their citizens to be employedby PMC. Indeed, the United Nations and its agencies also utilise the services of PMC. 104Nonetheless, all armed PMC personnel run the risk of being regarded as mercenariesif captured—and thus forfeiting the legal rights of recognised combatants or noncombatants.102 ‘The ICRC to expand contacts with private military and security companies’, 4 August 2004, accessed 5 January 2010.103 ICRC, Montreux Document on Private Military and Security Companies (also referred to as the‘Swiss Initiative’), Bern, 17 September 2008, accessed 5 January 2010.104 The author observed this first hand while serving as a UN observer in East Timor in 2000.
31National laws and accountabilityAt the national level, mercenarism has rarely attracted significant legal attention. Forthis reason, PMC generally operate outside the framework of legal accountability.In the United States, the Neutrality Act was originally enacted in 1794 andrevised in 1937 following the Spanish Civil War. The Act prohibits the recruitment ofmercenaries on US territory. During the 1970s, accepting mercenary employment waswidely believed to result in the loss of US citizenship although, under contemporaryUS law, mercenary activity is not a crime unless other criminal or international lawsare breached. 105 Prior to his election, President Barack Obama promised to tightencontrol on the operations of PMC. His administration has since determined thatUS PMC operating in conflict zones must adhere to the Uniform Code of MilitaryJustice. 106In the United Kingdom, the Foreign Enlistment Act of 1870 was originally intendedto prevent British subjects from jeopardising British foreign policy, and arose fromthe difficulty of British neutrality during the American Civil War rather than as ameans of prohibiting mercenarism. There have been no convictions under the Act,suggesting that the issue has been largely avoided. 107 Following the prosecution ofthe British mercenaries in Angola in 1975, Lord Diplock told the British Governmentthat mercenarism per se should not constitute a crime, although the recruitmentof mercenaries to fight in foreign conflicts may be considered so. 108 Mockler arguesthat the Neutrality Act and Foreign Enlistment Act are virtually dead letters. 109 TonyGeraghty agrees, pointing out that:Such inactivity derives from the fact that some freelance operators can be veryuseful to government from time to time, and that this consideration outweighsthe occasional embarrassment. 110105 Hoare, Congo Mercenary, p. 241; and Kwakwa, The International Law of Armed Conflict,pp. 116–18.106 N Hodge, ‘PSCs become US election issue’, Jane’s Defence Weekly, 12 March 2008, p. 9.107 Burchett and Roebuck, The Whores of War, pp. 184–96; Shearer, Private Armies and MilitaryIntervention, p. 20.108 Kwakwa, The International Law of Armed Conflict, pp. 118–19.109 Mockler, The New Mercenaries, p. 356.110 Geraghty, Who Dares Wins, p. 133.
Page 1 and 2: Land Warfare Studies CentreWorking
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Page 5: IntroductionPrivate military compan
Page 8 and 9: 4financial reward. Thus, mercenaris
Page 10 and 11: 6were widely respected for their mi
Page 12 and 13: 8The Industrial Revolution allowed
Page 14 and 15: 10The post-colonial struggles of Af
Page 16 and 17: 12only the standard pay rates to th
Page 18 and 19: 14Under pressure from the South Afr
Page 20 and 21: 16in Iraq outnumbered US troops on
Page 22 and 23: 18mercenaries was arrested by Zimba
Page 24 and 25: 20children are actually sent into p
Page 27 and 28: Part Two - IssuesThe use of PMC in
Page 29 and 30: 25of Western nations rely heavily o
Page 31 and 32: 27use of mercenaries to fight movem
Page 33: 29(b) Is motivated to take part the
Page 37 and 38: 33The recruitment of personnel in A
Page 39 and 40: 35Command and control are problemat
Page 42 and 43: 381. International Register of PMC.
Page 45: 41March 1987,SydneyMay 1988,SydneyM
Page 49 and 50: 45Dinnen, S, May, R and Regan, A J,
Page 51: 47Military Professional Resources I
Page 54 and 55: PMC references published during the
Page 56 and 57: 52Hider, J, ‘Private guards to lo
Page 58: 54Republic of South Africa, ‘The
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Page 63 and 64: 59107 de Somer, Greg and David Schm
Page 65: 61BooksWahlert, G (ed.), Australian

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