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Subject Area: Political Theory

Mercenaries and Autonomy - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Mercenaries and Autonomy

H.C. Burmester

  • Principal Legal Officer in the Australian Attorney General's Department

“The Recruitment and Use of Mercenaries in Armed Conflict.” American Journal of Jurisprudence 72 (January 1978): 37–56.

Mercenaries have been used throughout history in both international and civil disputes. Although they were once even looked upon as necessary components of war, attending the rise of modern nation states with their standing armies and powers of conscription, the importance of mercenaries has declined. The public's awareness of, and interest in, mercenary activity has similarly declined. However, recent events in Rhodesia and Angola have again brought mercenaries to the public's attention. More importantly, these events have also stimulated governments and international bodies to restrict the recruitment and organizing of mercenary forces. These recent developments call for reviewing existing laws and making some proposals for dealing with mercenaries and their recruitment.

Under traditional international law, neutral states are obligated to prevent the formation of armed expeditions or the operation of recruit offices on their territory. But states are not obligated to prevent their citizens or foreign nationals from leaving to enlist in the armed forces of a belligerent nation or in a mercenary organization. Further, international law generally does not impute responsibility to a state for the actions of its nationals serving as mercenaries unless there has been state complicity in their recruitment. In addition, some states have laws that prohibit or restrict travel abroad for the purpose of serving in the armed forces of other nations. Nevertheless, such statutes do not usually apply to traveling abroad for the purpose of serving as a mercenary or the recruiting of mercenaries.

Since the early 1960s conflict in the Congo, the United Nations and the Organization of African States have appealed to states to deter mercenary activity, particularly the recruitment of mercenaries by “colonial and racist regimes.” These proposals urge that: (1) the practice of using mercenaries against movements for “national liberation and independence” be made a crime and that mercenaries should be punished as criminals rather than as prisoners of war; (2) governments should enact legislation branding financing, recruitment, and training of mercenaries as a punishable offense; and (3) governments should prohibit their nationals from serving as mercenaries.

Although it is difficult to define what a mercenary is and antimercenary proposals would probably involve restrictions on the autonomous right of citizens to travel, Burmester supports governmental action to prohibit a state's citizens from mercenary activities on two grounds: (1) the use of foreign nongovernmental forces tends to bring into conflict the states whose nationals are involved and so the use of foreign private armed forces poses a threat to world peace; and (2) the liberties of citizens may be limited or denied for a “compelling” public purpose.