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PRIVATE MILITARY CONTRACTORS, PARAMILITARIES AND MERCENARIES …
particular situation could be deemed an international armed conflict, as it was in
fact between the armed forces of two countries, and subsequently followed by an
occupation.13 However, the fact that Russia may have been invited in by the leader
of the semi-autonomous region, may negate any notion of it being an international
armed conflict, as well as dampening any notion of Russia’s liability for breaching
international peace or committing acts of aggression.14 Regardless, Russia became an
occupying power when it entered and took control of the Crimean region. As such,
Russia will bear any responsibility for actions of any armed forces in that region under
international humanitarian law and international human rights law.15 As an occupying
power, Russia “is ultimately responsible for violations of international humanitarian
and human rights law committed by local authorities or proxy forces.”16 Whether
the remaining conflict in Eastern Ukraine is internal or international will ultimately
depend on who is controlling, influencing, or supporting any non-traditional fighters.
As news and allegations continue to emerge from Ukraine, the nature of the actors
seems to have increasing importance. While the allegations are yet to be proven on
either side, and this author is not in the business of crediting one media source over
another, the allegations pose an interesting issue under international law. Whether the
players are Ukrainian military, mercenaries, private military contractors, paramilitaries,
business security forces that were not originally intended to be PMSCs, or civilians
who have taken up arms, the nature of the actors in the conflict will shape the role of
accountability and order under international law, as well as influence efforts to restore
peace in Ukraine. The label given to the fighters determines the level of protection
they are afforded, as well as their responsibilities towards civilians and their armed
counterparts.
2. Mercenaries, PMSCs, and Paramilitaries
To begin with, each potential type of fighter must be defined, or attempted to be
defined. Under international law, the concept of a mercenary has existed for many
decades. Article 47 of the First Additional Protocol to the Geneva Conventions
denies mercenaries’ rights to prisoner of war status, and defines a mercenary as any
person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
13 Sylvain Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual
situations,” International Review of the Red Cross, Vol. 91 No. 873 (2009).
14 Remy Jorritsma, “Ukraine Insta-Symposium: Certain (Para-)Military Activities in the Crimea: Legal
Consequences for the Application of International Humanitarian Law,” Opinio Juris, March 9,
2014, available at
activities-crimea-legal-consequences-application-international-humanitarian-law/.
15 “Questions and Answers: Russia, Ukraine, and International Humanitarian and Human Rights
Law,” Human Rights Watch, March 22, 2014, available at
questions-and-answers-russia-ukraine-and-international-humanitarian-and-human-righ-0.
16 Ibid.