A look at the definition of mercenary as developed within the framework of international consensus at the United Nations.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)

Article 47.-Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is 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;

(c) 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;

(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) Is not a member of the armed forces of a Party to the conflict; and

(f) 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.

Party to the conflict

Interesting terminology.

If you're like me, you probably thought 'Coalition of the Willing' was just a dopey marketing phrase to make the war in Iraq sound as if it had some international popular support.

On March 27, 2003, there were 49 countries listed as members of the Coalition of the willing. If we consider these 49 as members of the party to the conflict, we start to understand why only Coalition countries were allowed to bid on the big reconstruction contracts funded by the United States. Companies from countries outside of the Coalition legally could have been considered 'mercenary' by the  United Nations.  

Blackwater as an American firm working in Iraq hired under contracts with American governmental agencies clearly falls outside of the United Nations' definition of mercenary. But I bet 'mercenary' probably sells books.

Blackwater: The Rise of the World's Most Powerful Security Services Company.

Umm. Yeah. That'll sell a ton of books.

Mercenary vs Security

Back to the United Nations...while it's too long to quote here, perhaps the most extensive definition to date is International Convention against the Recruitment, Use, Financing and Training of Mercenaries of December 4, 1989. Entry into force: October 20, 2001.

If you actually took the time and visited the link to the 1989 Conventions, you saw how extensive the definition of mercenary was. But, even the 1989 definition is not good enough.

Statement by Ms. Amada Benavides, PDF
2nd Session of the Human Rights Council  
Geneva, September 25, 2006

...private military and security companies and their employees fall into a gray area not specifically covered by the 1989 Convention. This demonstrates the need for appropriate international and national regulation, control and monitoring of the activities of these security companies, including registration and licensing, in order to ensure that these services provided by companies to States and intergovernmental and other organizations do not impede the enjoyment of human rights.

The UN recognizes the ongoing problem of developing a broad enough definition that also adequately addresses modern use of private security companies in legitimate security roles. They have an entire Working Group dedicated to investigating the role of mercenaries interfering with human rights. That's some serious street cred on the subject.

National Regulations

Mercenaries are guns for hire so let's look in the  Federal Acquisition Regulations. Always a good read.

FAR 37.109 Services of quasi-military armed forces.

Contracts with "Pinkerton Detective Agencies or similar organizations" are prohibited by 5 U.S.C. 3108. This prohibition applies only to contracts with organizations that offer quasi-military armed forces for hire, or with their employees, regardless of the contract's character. An organization providing guard or protective services does not thereby become a "quasi-military armed force," even though the guards are armed or the organization provides general investigative or detective services.

I've read that 'leftists' love the Pinkerton Act. But. Oooo. So close. It turns out the 5th Circuit Court ruled in 1977 that the Pinkerton Act relates only to union strikebreakers.

GAO: Matter of: Brian X. Scott page 3

The purpose of the Act and the legislative history reveal that an organization was "similar" to the Pinkerton Detective Agency only if it offered for hire mercenary, quasi-military forces as strikebreakers and armed guards. It had the secondary effect of deterring any other organization from providing such services lest it be branded a "similar organization." The legislative history supports this view and no other.

Hey. I don't make up the rules. I just research them.

Classification

Let's look at the North American Standard Industrial Classification.

5616 Investigation and Security Services

This industry comprises establishments primarily engaged in providing one or more of the following: (1) investigation and detective services; (2) guard and patrol services; and (3) picking up and delivering money, receipts, or other valuable items with personnel and equipment to protect such properties while in transit.

Feel free to explore the NASIC but I didn't find it to be much help.

Legislation

Rep. David E. Price (D-NC 4), Chairman of the Appropriations Subcomittee on Homeland Security -- subcommittees are where the real action takes place -- has introduced legislation that looks like it might impact companies such as Blackwater.

HR 369 Transparency and Accountability in Security Contracting Act of 2007 related bill S.674

To require accountability for personnel performing private security functions under Federal contracts, and for other purposes.

Defines security functions as:

(2) PRIVATE SECURITY FUNCTIONS- The term `private security functions', with respect to activities carried out under a covered contract in a theater in which the United States is engaged in a contingency operation, means--

(A) any activities for which personnel are allowed to carry weapons in the performance of the contract;

(B) the performance of--

(i) military logistics and maintenance;
(ii) interrogation of prisoners;
(iii) convoy security;
(iv) guarding vital facilities and personnel;
(v) tactical security work; or
(vi) local force training; or

(C) any other activity in support of the contingency operation, as determined by the Theater Security Contract Coordinating Officer.

Kinda vague. It definitely seeks oversight of security companies like Blackwater. But it doesn't bgin to address the question of what is a 'mercenary.'

It might be a good idea to keep 'mercenary' separate from 'security' for the time being.

Define Mercenary

Your turn. Jump in and share your thoughts.

Additional reading

Armed entrepreneurs: private military companies in Iraq by James Kwok a Senior Editor, Harvard International Review, Vol. 28 (1) - Spring 2006
Buck Private by Katherine McIntire Peters, Government Executive, October 1, 2003
Private Security Company Association of Iraq The Private Security Company Association of Iraq "PSCAI" is a non-profit organization formed and maintained to discuss and address matters of mutual interest and concern to the industry conducting operations in Iraq.