After the arrest of ex-soldiers: new laws against mercenaries?


Status: October 29, 2021 1:44 p.m.

German authorities are targeting military service providers. However, there are hardly any laws in this country to curb mercenaryism in war zones, although a UN resolution has long required this.

They are said to have discovered war as a lucrative business model for themselves. Last week, the Federal Prosecutor had two former Bundeswehr soldiers arrested. They are accused of having planned to set up a mercenary force – a “paramilitary unit” of 100 to 150 men in order to participate in the Yemen conflict on behalf of the Saudi Arabian government. However, they should not have had a specific order so far.

From a legal point of view, the case is a novelty. The Federal Public Prosecutor specifically accuses the two ex-soldiers of attempting to found a terrorist organization. Normally, terrorists are seen as political criminals who have a specific goal, such as the establishment of a National Socialist or Islamist state. In this case, however, the motivation of the accused is said to have been primarily financial. From the point of view of the public prosecutor’s office, the two men are therefore apolitical terrorists.

Ex-soldiers arrested on suspicion of terrorism

Claudia Kornmeier, SWR, daily show 17:00, 20.10.2021

No right to kill

In Karlsruhe they are convinced that the former Bundeswehr soldiers wanted to take part in combat operations in a war zone. They were aware that “inevitably also acts of killing” had to be carried out. They are said to have expected that civilians would also be killed and injured, it is said.

Unlike soldiers in a regular armed force, the investigators say, the two accused did not have a so-called combatant privilege under international criminal law. So you would not have been entitled to participate in hostilities. Accordingly, the allegedly planned actions in Yemen would have been illegal.

No laws against mercenaries in Germany

The prosecution of private military service providers is anything but easy in Germany. Because in this country there are no laws that forbid mercenaries in principle. Since December 1989 there has been a UN resolution aimed at preventing precisely such activities.

Resolution 35/48 – “International Convention against the Recruitment, Use, Financing and Training of Mercenaries” provides that the member states of the United Nations combat and prevent mercenaries. The Federal Government signed this declaration of intent at the time, but has not ratified it to this day. So far, no national laws have been created that explicitly criminalize mercenary activity by German citizens or the recruitment and training of mercenaries by German companies.

“The convention has not become legally binding for the Federal Republic of Germany,” said a spokesman for the Federal Ministry of Justice when asked. There are several reasons for non-ratification. International humanitarian law, the possibility of prosecution for committing war crimes or the national criminal offense “recruiting for foreign military service” are sufficient to “adequately capture the criminal law problem of the use of private security companies”.

The definition of the term “mercenary” in the UN resolution was also not precisely defined and would thus “raise legal systematic problems”, the ministry spokesman continued. In addition, only four of the 27 EU countries have ratified the convention. The Federal Republic therefore continues to adopt a “cautious attitude”.

Uncontrolled and non-transparent industry

The political scientist and peace and conflict researcher Herbert Wulf is an expert on private security guards and the privatization of wars. Unlike in the USA or Great Britain, the military service provider industry in Germany is “rather of a manageable size,” says Wulf. This could be another possible reason why no federal government has wanted to implement the UN resolution so far.

“If private military service providers commit crimes abroad, this can of course also be prosecuted by the German judiciary,” said the political scientist. However, it is very difficult to really clear up such crimes, “especially if they took place in war and crisis areas”.

However, Wulf does not consider new laws necessary. Instead, he points out that existing regulations such as the Foreign Trade Act should be applied in order to be able to take more restrictive action against mercenaries. “That would be entirely appropriate, because this industry is largely uncontrolled and, above all, non-transparent.”

Reporting requirements in the USA

In some states, for example in the USA, there are reporting requirements for military service providers. American companies must disclose to the State Department where and for whom they operate. Such an obligation does not exist in Germany. There are, however, voices from the parliamentary arena calling for stricter controls in this country as well.

“The freedom of occupation does apply, but it should be checked what exactly the services are, in which regions they should take place and whether the staff has an impeccable reputation,” says the CDU member of the Bundestag Roderich Kiesewetter. It should also be considered to examine the training and armament of such service providers and to certify the quality of the companies according to standards to be determined. The legal situation may also have to be adapted.

“We must ensure more transparency in the activities of private security companies abroad,” said FDP domestic politician Benjamin Strasser. It is in the Federal Republic’s “own security interest” to provide a better insight into who and with what tasks such companies operate.

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