Limitations of the existing Laws on Mercenaries

Source: The post limitations of the existing Laws on Mercenaries has been created, based on the article “Laws on mercenaries in war zones” published in “The Hindu” on 18th June 2024

UPSC Syllabus Topic: GS Paper2-international relation-Important International institutions, agencies and fora, their structure, mandate.

Context: The article discusses the recruitment of Indian citizens by the Russian Army to fight in Ukraine, often under false pretenses of good pay and citizenship. It highlights the deaths of two such recruits and the Indian government’s efforts to manage and prevent such situations. Limitations of the existing Laws on Mercenaries

How Did the Indian Government Respond to such recruitment?

1. The Ministry of External Affairs (MEA) acknowledged the deaths and recruitment of Indian nationals by the Russian Army and has been actively engaging with Russian authorities to address the issue.
2. The Indian Embassy in Moscow raised concerns with the Russian Ambassador in New Delhi seeking intervention for the release of Indian nationals.
3. In response to the crisis, the MEA issued a press note advising Indians to exercise caution when seeking employment opportunities in Russia.
4. The Central Bureau of Investigation (CBI) filed a First Information Report (FIR) against 15 individuals and four companies involved in trafficking Indians to Russia under false employment promises.

Who Are Mercenaries?

1. Mercenaries are individuals recruited from third-party states to fight in conflicts, mainly for personal gain rather than patriotism or loyalty to a cause. They differ from conventional combatants, who are members of the armed forces of a party to the conflict.
2. Under international humanitarian law, particularly Article 47 of Additional Protocol I to the Geneva Conventions, a mercenary must meet six criteria: recruited to fight in the conflict, taking direct part in hostilities, motivated by significant financial gain, not nationals or residents of the conflict states, not members of the involved armed forces, and not sent on official military duty by their home country.
3. The Organization of African Unity Convention (1977) expanded this to include civil wars.
4. In 1989, the UN General Assembly broadened it further to cover acts undermining governments and state integrity.
5. Despite these definitions, mercenaries do not qualify for prisoner-of-war status if captured but must be treated humanely under international humanitarian law.

What are the limitations of the existing Laws on Mercenaries?

1. Ambiguity in Definition: The Geneva Conventions’ definition excludes foreign military personnel integrated into another state’s armed forces, like the Gurkhas.
2. Domestic Law Gaps: Most countries do not criminalize mercenary activities.
3. Lack of Accountability: No mechanisms to hold foreign advisors and trainers accountable.
4. PMSC Loopholes: Private Military and Security Companies (PMSCs) operate under loosely defined legal frameworks, relying on domestic laws. For example, the Wagner Group in Russia has not been formally acknowledged by the Kremlin, complicating accountability.
5. Non-signatory States: Countries like India and Russia have not signed the Montreux Doctrine for regulating PMSCs.

What should be done?

1. Develop Robust Policy Framework: Implement policies to address distress migration and human trafficking. Focus on both long-term and immediate measures.
2. Long-Term Measures: Target economic factors driving people to leave India. Create more domestic job opportunities and improve economic conditions.
3. Immediate Measures: Educate the public about risks of overseas job offers and implement strong pre-travel vetting for Indians going to Russia or other conflict zones.
4. Pre-Travel Approval: Require pre-travel approval from the MEA to identify and prevent trafficking cases.
5. Learn from Examples: Nepal banned its citizens from working in Russia or Ukraine due to similar issues. India can consider similar measures.

Question for practice:

Examine the limitations of existing laws on mercenaries, focusing on their application to the recruitment of Indian nationals by the Russian Army to fight in Ukraine.