1. Mercenaries, Terrorist, Freedom Fighters,
Self determination through a legal and philosophical perceptive,
JUA 340 Terrorism a Multi discipline approach.
Robert Silva
Dec 13 2006
1
2. Introduction
The purpose of this paper is to explain the legal definition and status of a
mercenary, and mercenarism. Then apply to the concept and definitions of mercenarism
and mercenaries to the terrorist because the discussion of the legal status of the
mercenary could help understand the legal status of the terrorist. I will be using the realist
and liberal philosophy to look at different perception to demonstrate phenomenology.
Then I will be looking colonization and the right to self determination to demonstrate the
concept of the mercenary, freedom fighter and terrorist legal status and motivation in
conflict.
Legal definition of a Mercenary,
Geneva Convention Protocol addition one 1949, United Nations, African Organize Unity,
and various other document define mercenaries and mercenarism illegal.
The generic definition which I derived from different sources is,
A mercenary is a person specially recruited from abroad or local to fight in a
conflict the person has no affiliation with both parties of the conflict. The person partakes
in conflict for private material gain or the promise of material gain. The characteristic of
a mercenary could be also not a national or a resident of the conflict, and not apart of
another state’s national army that is not apart of the conflict but is to assist the state in
conflict, by peacekeeping.
Legal status of people that hire Mercenaries
2
3. The definition of mercenarism is to solicit the services of a mercenary and to train
mercenaries and it is illegal according to international law. Mercenarism is the act of
hiring mercenaries, and training, financing individuals for the of arm conflict, when the
individual is not apart of a national military or a self determination group. If the state
allows mercenaries to use territory to train and to run operations this is also an act of
mercenarism. If a hired person is paid extremely more than a person of equal rank in the
national army this is also considered partaking in mercenarism, a freedom fighter or
combatant is paid the same amount or less to the equal rank in the armed service of the
nation this can help distinguish the difference between mercenaries and volunteers for
self determination movement. Mercenarism is considered an illegal act under
international law.
Legal status of a mercenary,
In article 45 Section 3 of the Protocol Additional 1949 Geneva Convention states,
The legal status of a mercenary is not to be considered a prisoner of war, but shall have
the rights defined in article 75 of the same convention.
Article 75 states that fundamental guarantees shall apply to all persons with in the
conflict according to Article 1 of the same convention, individuals that are not protected
or defined by existing international law depending on jurisdiction of the conflict exists
shall have the protection of Article 75. If a national or regional law exists about the
treatment of mercenaries then it shall apply to the mercenary all other persons in conflict
are subject to the fundamental guarantees of Article 75 of Protocol Additional 1949
Geneva Convention.1
The problems with mercenaries
Mercenaries are link to the instigation of domestic violence, to sabotage development,
oppress native populaces and provoke revolution lead to the creation of conventions to
1
Protocol Additional 1949 Geneva Convention
3
5. Corporations Oil companies, Drug Cartels uses specialized security groups to
promote protection of interest. The specialized security is not considered mercenaries
because of function and duties are not military in nature. Although, it was found murders,
rapes, kidnappings; by employees of these companies tend to go unpunished. This lowers
moral of the natives and creates tensions. The perception of the populace could be
perceived that they were state military and protecting the foreign business interest rather
that protecting the people of the nation.
The mercenaries8
could be used to cause human rights violation, oppression, and create
distrust of government.
Definition of terrorism,
Possible Legal Definition of Terrorism,
The goal of an attack to damage and destroy civilians and property, reprisals for past
actions against victim of the attack, and acts that are considered war crimes or a crime
against humanity and political motivated.
I derive this definition of terrorism from the Article 20, Draft Code of Crimes Against the
Peace and Security of Mankind, 1996, Protocols Additional (1) Geneva Conventions
1949, Rome Statue,(ICC), Nuremberg Tribunal.
Under war crimes article 20 Draft Code of Crimes against the Peace and Security of
Mankind,
Section (i) Willful killing
Section (iii) Willful causing great suffering or serious injury to body or health
A terrorist attack takes forethought a planning which can constitute willful killing,
the planning of an act of terrorism, the results of the action must be taken into
consideration, which requires thought and planning, therefore an act of terrorism is not
emotional spontaneous act. That the execution of the act could not be considered
8
Use of mercenaries as a means of violating human rights and impeding the exercise of self determination,
section 32
5
6. systematic because of the in depth planning of the act, that is not spontaneous nor is it left
to chance.
The goal to destroy civilian objects in the definition is in Article 52, Protocol Additional
(1) Geneva Convention 1949,
Section 1 Civilian objects shall not be object of attack or of reprisals.
Section 2 limits the attack to military objectives, that are used for military define by
location purpose and use in conflict.
Section 3 defines the scope of dual use facilities shall be presumed used as civilian
primary use if in doubt of usage.
The attack on civilian objects is clearly define and is fore see ability when ones reads the
law that it is illegal and considered a war crime and crime against humanity.
Art 51: Protection of the civilian population, of the Protocol Additional (1) Geneva
Convention 1949,
Section 4 defines Indiscriminate attacks are prohibited,
(a) which defines those which are not directed at specific military objective,
(6) Attacks against the civilian population or civilians by way of reprisals are
prohibited.
This supports the attacks must have a military purpose even though the actor of the
terrorist attack could be considered a non state actor, international law allows individuals
held accountable for their actions when in an official capacity of the state or not in
official capacity. The Nurnberg Tribunal states, “any person who commits an act which
constitutes a crime under international law is responsible therefore and liable for
punishment.” The Nurnberg Tribunal states definition of crimes against humanity and
war crimes, which could apply to a person that performs an act of terrorism, if the
behavior and circumstances fits the definition of the law.
In the Nuremburg Tribunal Convention places responsibility of the act on the
individual that receiving the command from a superior officer does not exonerate the
person from responsibility of the act. This can apply to mercenaries and terrorist.
6
7. Since the mercenary does not get the status of Prisoner of War and either does the
person that performs an act of terrorism because is not associated with national military
or a group that has status of Combatants. Although, if a person performs an act of
terrorism then and as is a part of a combatant group or national military then they receive
the status of prisoner of war, but still held accountable for the acts of crimes against
humanity that could be considered apart of a terrorist attack. Those involved in a conflict
shall receive fundamental guarantees according to the Geneva Convention. This can
Article can apply to non-combatants and mercenaries because mercenaries can be used in
terrorist activities.
Policy definition of a Terrorist,
If a person that attacks civilian targets, the intent is to intimidate society to
promote political change. It could be argue that most armed conflict is to promote
societal and political change. The difference between a terrorist attack and a legitimate
military attack is one target is civilian and the other is military.9
The concept of dual use
targets can be used for military or civilian is defined in the context of the situation and
the environment but cannot be a legitimate target if purpose is not defined.10
So a terrorist
attacks enemy indirectly by attacking non-military targets to force others to act on the
perceived enemy of the terrorist and does not follow the established laws of conduct of
war. According to Jacobins Martinssen, an act of terrorism is a media event to broadcast
a message to promote a belief. 11
The definition of the terrorist through the ages, is the group of people struggling
for rights, if you look at who was considered a terrorist, since the 1700’s it was the non-
established of society. First, was the Monarchist versus the Republicans during the
revolutionary time, then in the nineteenth century it was Republicans or Industrial
capitalist versus or the communist is was up until the 1989, then the next wave was the
9
Lecture Mirza Biag
10
Article 52, Protocol Additional (1) Geneva Convention 1949, Section 3 Article 52
11
Lecture on Terrorism and the Media.
7
8. Muslim’s rejecting western business practices and culture in the 1990’s to the present.
12
The point is the establishment seems to always demonizes the lesser establish group to
derogate rights, to ensure dominance with in the system. It looks like a power struggle
which democracy and free market economic enterprise was supposed to diffuse. To
define a terrorist by socio-economic status cannot fit, because in the international law a
terrorist is someone that does not follow Laws of War, performs crimes against humanity
that are political motivated. This has nothing to do with historical definition context. In
the past situations it was permission able to derogate rights to promote the established
order, but in the modern context it is the derogation of rights is what promotes violent
conflict, and destabilizes the order. If the order is democracy then everyone is the
establishment. Historically the label terrorist was to demonize an individual.
To look at terrorism as a word, it is to promote fear to make the intention of the
victim to think twice to promote respect and fear and this is form of deterrence, to
intimidate. This is a classical realist point of view, expressed by Thucydides that people
should know their power and place themselves in the proper pecking order. Fear is the
reason people respect according to Machiavelli. The demonstration of destruction of
civilian targets shows ability of power and the ability to project power. The method of
achieving self interest is through dominating and coercing of others through acts of
destruction. Coercing could be offer what other actors want or destroying what they need
or threatening their lives or the lives they are responsible for. Realist thought could
classify the act of terrorism it is to undermine authority and to show power. The attack of
civilians could prove the chosen leader is not strong enough to protect the people so the
people begin to follow the terrorist edicts which becomes the new leader, if you look at
power relations and the classical realist thought, because the people place themselves in
pecking orders and support the group who gives them the most benefits or could hindered
them the most, so they ally with that actor, this is concept of the bandwagon. The realist
victim of an act of terrorism would act with more power and power projection to prove to
the society in this case the international society and domestic society, that the leader still
12
Terrorism in Context, University Park, Pa. : Pennsylvania State Univ. Press, cop. 1995
8
9. has more power over the terrorist attacker; this would be a balance of power of the
terrorist. This is the realist thought which does not support democracy in the way of the
liberal philosophical thought. Realist usually does not support democracy because
conflicts always end in violence anyway the need for deterrence and power is the way to
promote stability in the international arena, so the actor must obtain power, through,
finances, military and politics. So terrorism in a realist world would be a person that
obtains power through violent acts that creates fear in people, to cause them bandwagon
or to balance another power. That terrorism is a demonstration of power, for the purpose
of to change political alliances and structures.
The liberal argument, terrorism stems from rights not be protected or enforced.
The liberal understands people are self interested, and act in their own benefit but offers a
solution to conflict that does not require violence. Democracy has conflict with in it
because self interest tend to clash through debate through dialogue but the cooperative
nature of humans will try to solve the conflict without violence. The ultimate goal of
liberal thought is to create a system to allow individuals to achieve their individual
interest without clashing with other’s interest. This is done through free and fair trade and
communication. The mechanism and tools of the conflict resolution is rational debate,
and the conflict is not violent, and allows self interest to be heard, and fulfilled. The
ability not to have rights practiced and protected through the system leads to conflict.
The following the rules of peaceful conflict resolution can promote a peaceful co-
existence. The problem is when an irrational actors seizes control of a government and
abuses human rights, the populace has the right overthrow through legitimate peaceful
means but if not possible the use of force but must follow the laws of war.13
A terrorist is
an irrational actor that uses violence to promote political views through acts of
destruction against the civilian targets to create an air of intimidation to promote political
change. The terrorist is not a democratic actor but an irrational actor because the terrorist
lacks the desire to communicate or negotiate interest but uses violence to convey
message. Terrorism could be considered a crime against humanity because it breaches
13
United States http://explore.georgetown.edu/blogs/?id=19298 , Definition of a Terrorist
9
10. human rights and undermines democratic processes and peaceful conflict resolution
which undermines the principals of the United Nations Charter.
Conclusion on Policy definition of a Terrorist
A terrorist is a person that uses violence to promote political change, the violence
is an indirect attack to the perceived enemy; the attacks could be symbolic and is meant
to bring awareness to the terrorist causes and to intimidate to create a consciousness of
fear in the general public, to promote political pressure on the leaders. The attack is not
for military purpose, but to create a sociological affect that will affect political and policy
direction of the victim society. It is a tool of conquering in an abstract way, by changing
the attitude and beliefs of the intended audience but it is an indirect form of conquering.
It is an indirect method to create societal change might not lead to the results desired. A
terrorist uses methods of terrorism therefore criminal in a liberal perspective, in a realist
perspective a possible threat to security. The liberal sees a terrorist as threat to
civilization while a realist see the terrorist a threat to status quo.
Can their be a legitimate terrorist act,
No act of terrorism can be legitimate in a liberal perception because the definition
of a terrorist attack has attributes of crimes against humanity crimes against humanity are
Jus Cogen or supra norms, no law can breach them, therefore an act of terrorism can
never be legitimate because no law can legitimize terrorism because of natural law
theories.
In a realist perception there is no international order but only anarchy, so there is
no consensus, terrorism is considered apart of war or interstate relations. The method of
terrorism does not follow international norms, but international norms are scrapes of
paper it is the power that creates the order. To argue from a realist point of view,
terrorism could be legitimizes if it is necessary to promote security and power of the state
or actor.(positivism) This thought is supported with nuclear weapons, that each state
should have nuclear weapons to promote deterrence through Mutual Assured
10
11. Destruction(Waltz). To relate to terrorism, an actor performs act of terrorism against an
actor, if the victim actor performs an act of terrorism against the aggressor actor this
could create a future deterrence not to change interstate interactions because of the
concept of Mutual Assured Destruction and balance of power theory(Waltz). If everyone
had a terrorist then all states would fear terrorist attacks because of the escalation
between the relations of states conflict to civilian violence as it would with nuclear
weapons. The problem is the non state actors are the terrorist, but they could be operating
from a realist perception of the state of nature to influence a government through
violence, and hold the populace hostage in some abstract way by threaten a terrorist
attack, or to create deterrence of a state interfering in the non states actors affairs. This
can apply to Drug cartels; organize crime, and other nefarious organizations. The realist
could legitimize a terrorist attack to promote state or actor power and position in the
international system.
From this point on in the paper I will argue from the Liberal philosophical
perspective.
Can a national army, mercenary, freedom fighter be consider a terrorist, yes.
Acts that breach international law, or indirectly attack enemies could be considered a
criminal act to promote fear in the public to put pressure on the political structure to give
into demands. This could be considered a tool of propaganda which is also outlawed by
international law. The status of individual or a group does not give them the privilege to
breach international law or domestic law for any reason. Mercenaries, national armies
and freedom fighters breach international law for political reasons become a terrorist.14
Since all war and self determination conflicts are political struggles then when a person
performs a crime against humanity or a war crime it could be considered an act of
terrorism. It is assumed acts of war or rebellion is about promoting a political agenda.
Mecenaries work for governments or non state actors that wish to promote their policy
agendas, which can be construed as political therefore a mercenary can be become an
14
E/CN.4/2004/15 section 30
11
12. terrorist by working for a state, or group that uses terrorism as tool to promote the groups
political agenda.
Just War or war for self determination,
The following is loosing based on Osama Bin laden speeches, in the book : Osama bin
Laden’s al Qaida, Profile of a Terrorist Network: This is my perception of his perception
of the Middle East situation on modern colonization.
The argument of the freedom fighter is to promote the self determination of the
people, and human rights enforcement because the corrupt is using the government to
promote an autocratic interest, and denying human rights to the people is to create
vulnerability in the public to promote an order that will benefit the corrupt officials or
actors. This is to be able to intimidate and coerce with the governmental structure. The
United Nations calls this colonization, and people have the right to free themselves from
colonization.
The right to struggle against colonial powers is stated in the United Nations
Documentation. The Colonialist power uses the legal system to exclude others from the
political, economic development, and social rights. For the purpose to allow the elite to
control society, the laws and policies are created to promote the elite or ruling class,
making impossible for the underclass to strive or better situation without the consent of
the ruling class. That self determination does not exist because of the need to promote the
status quo order. Individual self determination is reliant on the conformity with the elite’s
policies and perceptions about reality or society to access privileges. This is not self
determination but assimilation. The ability not to practice human rights and compensation
mechanism for injustices did not exist if it did not promote the elites order, and this leads
to conflict and to violence. In the modern context we should look for methods that create
a situation that will lead to behavior that recreates colonial type of situations.
12
13. The following is a Philosophical analyze of intentions of actors of a conflict through a
Realist and Liberal philosophies.
The argument, if a colonial powers or imperialist (realist actors) was subjugating
the native or own populace through economic, legal, and political methods to promote an
order. The autocratic regime argued the need to breach human rights was necessary for
the maintaining of the order (positivism). Human rights violations were happening to
promote the established while hindering the non-established. Therefore revolution was
needed to promote the natural law order that will promote self determination and protect
the individual human rights. Revolution could be done through legitimate and peaceful
means by voting and creating a public debate (Liberalism). The problem of an autocratic
totalitarian regime the media is usually controlled through the elite, and the derogation of
the freedom of expression are to ensure the elite’s message is not challenged. The
bureaucracies promote and enforce extra legal social, economic and political agendas
(The Real Politick). The concept of extra legal is not the public legal codified method of
interaction of people, but an illegal method of moral and behavior enforcement, [for
examples Mafia’s, crime syndicates, good old boy networks (tend follow the thought of
Thucydides)] This is to promote the group’s or individual’s influence over the system for
dominance. This can be done through denial access to public or private services, the right
not defend self in disputes, arbitrary decisions based on circumstance, processes of
exclusion and derogations of rights done through a quasi due process method, or just
straight gun point denials. Criminal groups, mercenaries can perform these acts outside of
state authority but to promote the groups influence over the state. Crime leads to
undemocratic practices in the governmental system for the need to create security for the
established order. The purpose is to expand the power of the government therefore the
power of the elite running the government.
This circumstance creates and promotes conflict because the lack of means to
practice and enforce human rights through democratic processes or peaceful conflict
resolution. This could be perceived to promote the criminality of the people demanding
their rights, because the dissenters of the new political order have to use illegal means to
13
14. have their message heard, and this could be used as an argument for the legitimization of
the behavior and policies of an autocratic totalitarian state. This can also be used to deny
people political office and access to economic activities and finances for the fear of using
these things to undermine the positivist autocratic totalitarian regime because of the lack
of loyalty to the regime. This is it self breaches Human Rights and does not follow
natural law in which promotes democratic practices. The need for democratic practices
could be argued not necessary for the security and order maintenance of the state. This
could be a method to establish a colonial type situation in a country, of the necessity of
security, to legitimatize the derogation of rights. This can lead to struggle and even armed
conflict because the lack of expression and peaceful conflict resolution. Mercenaries,
terrorist, and criminal groups help promote this type of circumstance.15
Applying concepts of mercenary and freedom fighter to self determination situation
The struggle for legitimate human rights is consider justified conflict, this can be
also considered self determination movements to promote democratic society in return
encompasses human rights and democratic practices. The individual that partakes in this
conflict as long the laws of war are abided by are not considered a terrorist. If the group
hires an a group of people to fight for the cause and is significantly paid more, than the
average freedom fighter, or is promise material compensation after the conflict then the
group is practicing mercenarism which is a breach of international law, but could still be
considered freedom fighters because mercenaries adopt the groups methods and ideology,
but the mercenary does not get the status of prisoner of war. If the mercenaries become
freedom fighters if by accepting the same pay or less then they are considered the legal
status of a combatant. A personality is either a mercenary or a freedom fighter but never
both. While a mercenary, combatant, and military personality can be considered a
terrorist because the act of terrorism is a behavior.
The terrorist could never be a freedom fighter because of root Ideological
difference.
15
Use of Mercenaries as a means of violating human rights and impeding the exercise of self determination,
section 21, 22 A/50/390
14
15. A terrorist method in this situation would only promote stricter rules and
separation of people and creation of a societal caste, the trusted and non-trusted. Acts of
terrorism could be used to create this a totalitarian situation. Mercenaries could be hired
to create a consciousness of fear, to cause a reaction for the public demand positivist
controls over society, which will eventually lead to a totalitarian system because of
logical conclusions based on reasoning to promote security. The terrorist creates a
totalitarian regime rather than creating democracy. It promotes it by spreading fear, and
creating distrust because the argument is anyone is possible of a terrorist attack. Terrorist
could not be linked with freedom fighters, because the desire to promote democratic
principals which is codified in international law is the freedom fighters goal. The ends do
not justified the means or the road to hell is paved with good intentions and bad deeds. To
use methods that are illegal to promote a good cause is still criminal even if the people
gain control of the government, because the law is to promote harmony, but their actions
create disharmony which creates reactions because the of justice, or the need to reach
equilibrium will conflict with the actor of the bad deeds. Terrorism does not promote
democratic society, but more of an autocratic society the freedom fighter promotes self
determination with in a democratic society. This is why a terrorist can never be link to
freedom fighters because ideological roots that would dictate methods of dealing with the
conflict.
Conclusion
Mercenaries are used promote disruption in the international system and domestic
countries. The mercenary could be link to human rights abuses and terrorist acts. The
mercenary allows for non-state actors to create militaries to promote interest and threaten
sovereignty of states the non-state actor operates in. The purpose of military is to promote
self defense of the people of a state, but in many cases the mercenary has been used to
oppress peoples in a nation, and this lends itself to violence confrontation stated in many
reports from the United Nations Reports about mercenaries. Mercenaries and terrorism
are closely related in behavior, but intentions of actions are different. A terrorist is
15
16. motivated by political change as the mercenary is motivated by economic rewards; both
use similar tactics to achieve goals and are illegal to international law.
My personal opinion about the acts of terrorism is that they are crimes against
humanity, and seek to deteriorate the moral fabric of our society. It compromises relation
between people, especially the state and the individual, and creates distrust among
nations. I believe in civilized society, and the duty of democratic states to role model
proper democratic behavior by enforcing the rule of law, this is the only way that we may
obtain a peaceful co existence among the nations, and humans. Human rights must be
protected and made sacred as the water we drink, the food we eat and the air we breathe.
Honor, courage, and noble acts, terrorism is neither of these things. To speak your mind
to proclaim the truth and your interest in adversity takes more courage than to hurt
innocents that have nothing to do with the quarrel.
Bibliography
1) 44/34 International Convention against the Recruitment, Use, Financing and Training
of Mercenaries, A/RES/44/34
2) Rights of Peoples to Self Determination United Nations A/50/390
3) Convention of the OAU for the eliminations of Mercenarism in Africa Libreville, 3rd
July 1977
4) Terrorism in Context, University Park, Pa.: Pennsylvania State Univ. Press, cop. 1995
5) Dealing with Terrorism-Stick or Carrot? Bruno S. Frey
16
