Overcoming Post-Colonial Myopia: A Call to Recognize and Regulate Private Military Companies

摘要

The sovereign's resort to mercenaries is as old as history itself. Ramses II led an army composed largely of Numidian mercenaries in the Battle for Kadesh in 1294 B.C. and King David used mercenaries to drive the Philistines from Israel in 1000 B.C. From 800 to 400 B.C., mercenaries played a relatively minor role in the Greek hoplite armies, but by the time Alexander the Great crossed the Hellespont to invade Persia in 334 B.C., specialized mercenaries comprised almost one third of his army. In 50 B.C., Caesar relied almost entirely on mercenaries for his cavalry, and 600 years later, many of thefeoderati of Justinian's East Roman Army were mercenaries. Mercenary use continued unabated by William's army during the Norman Conquest,9 by Renaissance Italian city-states with their condottieri, and by Britain who resorted to Hessian mercenaries to fight American colonists during the Revolutionary War. Indeed, the sovereign's use of mercenaries predates the national armies that arose only after the Treaty of Westphalia. Despite the recent success of modern standing armies, however, the mercenary and the sovereign's resort to his services endures. In the twentieth century's latter half, international law attempted to limit states' practice and individuals' conduct regarding mercenary activities. Regulation of state practice concerned primarily states' recruitment and use of mercenaries for intervention against 'foreign self-determination movements, raising questions of the jus ad bellum. Regulation of individual mercenaries concerned their status and conduct during foreign conflicts, raising questions of the jus in bello. Oftentimes, the drafters of international legal provisions affecting mercenaries confused the principles of jus ad bellum andus in bello, thereby producing questionable and ultimately tenuous attempts at international regulation. More often, the drafters struggled to define adequately the ancient profession.