Mercenaries, Terrorist, Freedom Fighters,

Self determination through a legal and philosophical perceptive, JUA 340 Terrorism a Multi discipline approach.

Robert Silva

Dec 13 2006

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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

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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

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stop indirect state aggression against another state. 2 The mercenary exists for the purpose

to wage war since; they are trained personal selling their skill in war and violence. They

exist to wage war and promote violence. This goes against the principals of the United

Nations, and peaceful conflict resolution. 3 The accountability and the enforcement of

international law and domestic law is the major concern of states with mercenaries

because of the disruption of international and domestic tranquility.4

Mercenaries have been used in breach of crimes against humanity and international law.

In Sierra Leone during the political elections of 1996 mercenaries performed ethnic

cleansing and genocide.5

The mercenary had been link to drug cartels and drug trafficking which is/ was being

used to undermine constitutionals governments, they carry out terrorist attacks to

aggravate conflicts, they promote the use of propaganda against enemies the mercenary

would promote conflict to ensure themselves future employment.6 Mercenaries are

commonly used to promote colonial type of situations in developing countries, that the

mercenary hinders the ability of the native people to exercise human rights.7

It has been found also the mercenaries prescribe to an ideology after they employed by an

employer. The affiliation is about financial or material reward rather than the political

movement. The mercenaries have been also been know to carrying out sabotage against a

third state.

The mercenary and non-state actor,

2 The Soviet Union and International Terrorism, by Leon RomanieckiSoviet Studies © 1974 University of Glasgow p. 417-4403 e/cn/.4/2004/15 p11 section 30, 314 International Convention against the Recruitment, Use , financing and training of Mercenaries, Preamble5 e/cn/.4/2004/15 p11 section 226 Use of Mercenaries as a means of violating human rights and impeding the exercise of self determination, section Ibid section 18-20

7The use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination Human Rights Résolution 2005/2

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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

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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.

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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 Biag10 Article 52, Protocol Additional (1) Geneva Convention 1949, Section 3 Article 5211 Lecture on Terrorism and the Media.

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Muslim’s rejecting western business practices and culture in the 1990’s to the present. 12The 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

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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

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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

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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

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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.

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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

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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

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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

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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

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