Mercenaries Are in the Eye of the Beholder

While immigrants who are permanent residents with green cards have long been eligible to enlist, this move, for the first time since the Vietnam War, will open the armed forces to temporary immigrants if they have lived in the United States for a minimum of two years.

This is rather amusing, considering that one criticism frequently leveled against private security contractors is that they are mercenaries.

The most widely if not universally accepted definition of a mercenary is that in the 1977 Protocol I to the Geneva Conventions. Article 47 puts forward six criteria, all of which must be met for a combatant to be considered a mercenary. At least three of the criteria would seem relevant to the U.S. military initiative: is specially recruited locally or abroad in order to fight in an armed conflict; does, in fact, take a direct part in the hostilities; and is motivated to take part in the hostilities essentially by the desire for private gain.

Given current U.S. military commitments, it is likely that any immigrants who join the military under this program will find themselves deployed to a war zone, and eventual U.S. citizenship would certainly qualify as a private gain.

This initiative merely codifies a longstanding reality. There are tens of thousands of people serving in the American military who aren’t even American, at least not yet. The number increased from 28,000 to 39,000 from 2000 to 2005 alone.

Many of them applied under a fast‐​track process approved by President George W. Bush in 2003 and enacted in October 2004. Under the new rules, people in the military can become citizens without paying the customary $320 application fee or having to be in the United States for an interview with immigration officials and naturalization proceedings.

The president also made thousands of service members immediately eligible for citizenship by not requiring them to meet a minimum residency threshold, as civilians applying to be citizens must do, although they still must be legal residents of the United States.

In late 2006 it was reported that the U.S. military, struggling to meet recruiting goals, was considering opening up recruiting stations overseas and putting more immigrants on a faster track to U.S. citizenship if they volunteered. Such proposals have been catching on among parts of the establishment. Michael O’Hanlon, a senior fellow at the Brookings Institution in Washington, and Max Boot, a senior fellow at the Council on Foreign Relations in New York, proposed allowing thousands of immigrants into the United States to serve for four years in the military in exchange for citizenship.

In any event, such immigrants are fighting — and in some cases dying — for a country of which they are not citizens, but we don’t call them mercenaries. As of March 2008, more than 100 foreign‐​born members of the U.S. military had earned American citizenship by dying in Iraq.

In fact, the United States, as it has done in every major conflict since the Civil War, is making it easier for legal resident aliens to become U.S. citizens if they choose to fight. To that end, a bill was introduced in Congress in 2001, subsequently called the Development, Relief and Education for Alien Minors Act, which targeted children of undocumented immigrants resident in the United States for more than five years but not born within its border. Such children would be granted legal status and become eligible for citizenship if they graduated from high school, stayed out of trouble, and either attended college for two years or served two years in the armed forces.

None of this is necessarily bad. Like anything else, it all depends on the details and how they are implemented. But it helps to illustrate that defining a mercenary is a bit like defining pornography; it is frequently in the eye and mind of the beholder.

In fact, in the current age, in which modern state militaries are staffed by volunteer recruits largely joining in peacetime — many for the pay and benefits — the difference between the private and public soldiers appears to revolve largely around the form of employment contract.

Indeed, considering that the U.S. military is increasingly accepting immigrants, whether legal or illegal, into its regular armed forces, one could make a case that in some respects the United States has a hybrid professional/​mercenary military.

Accept for a moment, for the sake of argument, that contractors are at least a sort of quasi‐​mercenary component of the All Volunteer Force; it seems the Department of Defense certainly has no qualms about their use. The trend for many years has been ever increasing reliance on and integration with regular military forces.

The 2005 Department of Defense Instruction “Contractor Personnel Authorized to Accompany U.S. Armed Forces” was a significant step toward integrating contractors into the Total Force. The Pentagon’s policy now directs that performance of commercial activities by contractors, including contingency contractors and any proposed contractor logistics support arrangements, shall be included in operational plans and orders.

Next year will see the release of the latest Quadrennial Defense Review. This would be an excellent time for the Department of Defense, as Human Rights First previously recommended, to comprehensively assess planned uses and roles of contractors by the Defense Department over the next 20 years, to include making adequate provision for long‐​range requirements for control, oversight and accountability.