UC Law Journal


Mercenarism's metamorphosis during the final decades of the twentieth century from the profession of soldiers of fortune into the work of publicly traded private military assistance corporations has enabled modern mercenaries to evade a burgeoning international legal movement toward their eradication. Despite persistent efforts to recognize private military corporations as mercenary companies, the evolution of legal definitions of mercenarism has failed to keep pace with the strong international consensus against mercenaries, thereby causing the letter of international law to diverge from its spirit. Hiding mercenarism behind a corporate veil flouts the spirit of international law and serves to eviscerate the accountability of governments for the actions of the corporate mercenaries they hire. Changing the traditional definition of mercenarism from an actor-oriented conception to one focused on prohibited activities would establish consistency between the letter and spirit of international law and provide for governmental accountability. From a theoretical perspective, modern mercenarism can be understood as one aspect of a larger philosophical problem posed by the common intuition that a powerful state is free to disregard international law to whatever extent it can. There are, however, philosophical grounds for recognizing an obligation to obey international law, which is binding on all states even in the absence of enforceable sanctions. Ideally, the definition of mercenarism should be amended to bring the letter of international law in line with its spirit; but, even without such a change, the dictates of the spirit of international law should nevertheless be recognized as binding.

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