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Laws on mercenaries in war zones

18th June, 2024 International Relations

Laws on mercenaries in war zones

Source: Defense Research

Disclaimer: Copyright infringement not intended.

Context: On June 11, the Ministry of External Affairs (MEA) acknowledged the tragic loss of two Indian nationals who were recruited by the Russian Army amidst the ongoing conflict between Russia and Ukraine.


Indians were getting killed while fighting on behalf of Russia in the Ukraine war. 

  • Over the past year, nearly 100 Indians have been recruitedby the Russian Army after being reportedly duped by agents with the lure of money and a Russian passport.
  • Contracts signed by these recruits stipulate a “no leave or exit policy” before six months of service, with salaries amounting to ₹1.5 lakh to ₹ 2 lakh per month.
  • In January, Russian President Vladimir Putin signed a decree simplifying the process of obtaining Russian citizenship for foreigners who sign a minimum one-year contract with the Army.
  • At least 30 Indians have so far contacted the MEA and the Indian Embassy in Moscow, seeking help to return. These tragic deaths highlight a disturbing reality — Indians are increasingly falling prey to labour trafficking rackets after being unable to secure jobs domestically, leading to their recruitment as mercenaries in international armed conflicts.

Indian government and agency response

  • The MEA has issued a press note advising Indians to exercise caution while seeking employment opportunities in Russia.
  • According to the Central Bureau of Investigation (CBI it had filed a first information report (FIR) booking 15 individuals and four companies for their alleged role in the “trafficking of gullible Indian nationals to Russia and duping them for better employment and high-paying jobs.” In May, the central agency divulged that it had made four arrests in the case.

Distinction between Conventional Combatants and Mercenaries

  • The distinction between conventional combatants and mercenaries is a fundamental cornerstone of international humanitarian law (IHL).
  • A combatant is typically a member of the armed forces of a party to the conflict, whereas a mercenary is recruited from a third-party state unrelated to the conflict. Mercenaries usually engage in hostilities motivated primarily by personal gain as opposed to the virtues of patriotism associated with regular combatants.

Definition of a Mercenary under Article 47 of Additional Protocol I

Article 47 of Additional Protocol I to the Geneva Conventions (API) envisages six cumulative conditions for a person to qualify as a mercenary. The person:

  • Should be specially recruited locally or abroad in order to fight in an armed conflict.
  • Has taken a direct part in the hostilities.
  • Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party.
  • Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict.
  • Is not a member of the armed forces of a party to the conflict.
  • Has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces.

Legal Implications for Mercenaries under Customary IHL

  • Under customary IHL, being a mercenary itself does not constitute a specific crime. However, if captured, mercenaries are not entitled to prisoner-of-war status or any protected categories under the Geneva Conventions. This allows for their prosecution for the commission of war crimes or other grave breaches of humanitarian law. They may also face charges under the domestic laws of the detaining nation.
  • Nevertheless, mercenaries qualify for humane treatment in accordance with the fundamental guarantees of humanitarian law, as outlined under Article 75 of the API.

African and International Responses to the Definition of Mercenaries

Organization of African Unity Convention for the Elimination of Mercenarism in Africa (1977)

  • Over time, African states began expressing reservations about this definition, as it only addressed international armed conflicts and overlooked civil wars, where mercenary activities were most prevalent.
  • This led to the adoption of the Organization of African Unity Convention for the Elimination of Mercenarism in Africa in 1977, which included a more expansive definition of mercenaries.

United Nations International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989)

  • Similarly, in 1989, the United Nations General Assembly (UNGA) adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.
  • This convention criminalized the recruitment, use, financing, and training of mercenaries and also promoted inter-State cooperation in this regard.
  • It also widened the definition of mercenaries as provided under the API to include “persons recruited for the purpose of participating in a concerted act of violence aimed at overthrowing a government or otherwise undermining the constitutional order of a State, or at undermining the territorial integrity of a State.”

Limitations and Challenges

Regulatory and Legal Gaps

  • Lack of a clear, comprehensive legal definition of mercenaries.
  • The definition outlined under Article 47 of the API does not include within its ambit foreign military personnel integrated into the armed forces of another state — such as the Gurkhas (soldiers from Nepal who have served in the British Army since the 1800s).
  • No accountability mechanisms for foreign advisors and trainers.

Emerging Trends and Private Military Companies

Role of PMSCs

  • The emerging trend of private military and security companies (PMSCs) gradually taking over roles previously associated with mercenaries.
  • “These for-profit companies provide a range of services from combat to food supplies for troops. The legal framework surrounding the operations of PMSCs is more loosely defined and relies heavily on a country’s domestic legal capacity.
  • Examples: Controversial Wagner Group in Russia, despite being registered as a private entity, it reportedly includes Russian army veterans among its ranks, raising accountability issues.

Montreux Doctrine

  • Signatories commit to oversight of PMSCs’ compliance with humanitarian and human rights laws.
  • Neither India nor Russia is a signatory, but India can still impose tighter recruitment restrictions.

Way Ahead

Policy Framework and Preventive Measures

  • India should develop policies addressing distress migration and human trafficking.
  • Adopt a two-pronged approach: Long-term economic solutions and immediate public education and vetting measures.
  • Consider pre-travel approval from MEA for suspicious cases of trafficking.
  • Learn from Bangladesh's Dhaka Principles for Migration with Dignity and Nepal's travel bans to Russia and Ukraine.




Q. Montreux Doctrine often mentioned in news is related to which of the following?

A. Wetland conservation

B. Private Military

C. Human Migration

D. Migratory Birds

Answer B