Sunday, July 01, 2007

What Is A 'Mercenary'?

It seems that a very unseemly, but highly amusing, spat has been developing over the Support Security Services contract in Iraq. In fact, this spat has all the hallmarks of a modern American classic. It involves, of course, Iraq, government contracts and large companies. There are injunctions and court cases. All good all American stuff.

It turns out that this contract is up for renewal. The contract is worth $475 million. However, it seems that there is a problem. The problem is caused by the 1893 Anti-Pinkerton Act and a man called Brian Scott. The Anti-Pinkerton Act is a law that prohibits the U.S. Federal government from hiring mercenaries. However, Brian Scott has filed suit, arguing that the contract violates this act.

Although the democratic discussion boards have been full of gleeful comments, Scott is no tree hugging peacenik hippie. He is an ex-serviceman who wants to bid on these contracts, but believes that he is prevented from doing so by the law. So, this raises the rather interesting question: what is a 'mercenary'? This is an interesting question, that even the Military appear to be somewhat confused about.

The General Accounting Office has attempted to defuse the situation by ruling that the contracts do not violate the law. The argument offered is that, as a previous Court decision refused to define "mercenary, quasi-military forces", then there is no reason to think that the contract violates this. However, it seems that not all judges are persuaded by this reasoning.

I will skip over the legal stuff, but instead will return to the question at hand. It is clear that this is a topic of interest to the military. See for instance, the discussion in The Military and The Constitution: A Legal History in Military Law Review, 136 (1992).

One thing that is certainly worth mentioning is that the Blackwater Company, who is also a bidder on this contract, comes up as a suggestion when a Google search is done on the term 'Mercenary'. However, what is more interesting is what the Military itself has to say.

An interesting example can be found on page 29 of The Military Law Review, 89 (1982). There one Professor Mallison opines that,

"As I understand Article 47 of Protocol I, dealing with mercenaries,
and its very interesting negotiating history, any competent
combatant who has a good lawyer doesn’t need to be a mercenary.
The definition of “mercenary” is so narrow, and there are so
many exceptions to it, that only a very incompetent combatant, with
a wholly incompetent lawyer, or perhaps not one at all, is going to
come within this narrow conception."


That seems to make things quite simple: nobody with a good lawyer is a mercenary! However, this is not the only remark of interest. In the November 2003 edition of The Army Lawyer, on page 31, note 78, Evan J. Wallace, in a paper entitled "Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander" we find the following,

"By definition, mercenaries are motivated by a desire for private gain."

However, given that this claim was made in the context of a discussion of Al Qaeda, perhaps it does not count. After all, why should there not be different 'definitions' for different sides in a war? Well, I can think of at least one reasons why varying definitions should not be permitted -- consistency! However, maybe this is just a philosopher thing. Any which way, what happens with these contracts should be pretty amusing to watch!

The CP

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