Why Gurkhas and Foreign Legionnaires are not legally mercenaries
A mercenary fights for pay in a conflict that is not his own, and international law treats him differently from a soldier. A 1977 addition to the Geneva Conventions strips mercenaries of prisoner-of-war protections, though they must still be treated humanely and tried before punishment. Gurkhas and Foreign Legionnaires, crucially, do not qualify.
The classic mercenary is an outsider who joins a war for money rather than political conviction and belongs to no official army. Since the 20th century such fighters have been seen as less deserving of the protections soldiers enjoy, though in practice the line blurs because profit and politics often mix. Article 47 of Protocol I, agreed in 1977, gives the most widely accepted legal definition, but the United States does not endorse it, and a fighter must meet every one of its criteria to be classed as a mercenary. A later UN convention, passed as resolution 44/34 on 4 December 1989 and in force from 20 October 2001, widened the net to foreigners hired to topple a government or break up a state.
Countries police their own citizens differently. Britain's Foreign Enlistment Acts of 1819 and 1870 forbid joining armies at war with a state at peace with Britain; British volunteers who aided Greek rebels may have broken the law, and ministers considered but decided against prosecuting volunteers in Spain's International Brigades and in Angola. France outlawed mercenary work in 2003 while still allowing volunteers, yet the state owns 50% of Défense Conseil International, a training firm that made €222 million in profit in 2019. South Africa's 1998 Foreign Military Assistance Act was reviewed in 2005 after Mark Thatcher was prosecuted over an alleged coup plot in Equatorial Guinea organised by Simon Mann.
In the United States, the Anti-Pinkerton Act of 1893 bars the government from hiring firms like the old Pinkerton detective agency. A 1977 appeals ruling read it as a ban on hired quasi-military forces, though whether it covers only strikebreakers remains disputed, and in 1978 the Comptroller General exempted guard services. In 2007 a lawsuit citing the act briefly froze a $475 million Army security contract in Iraq before the case was thrown out.
Foreign nationals do serve in famous units. Nepalese Gurkhas fight in the British and Indian armies, and recruits to the French Foreign Legion and Spanish Legion serve in organised units of national forces, which places them outside Article 47. Private military companies call their staff security contractors; a British government report in February 2002 noted they might be cheaper than soldiers for UN missions, though regular troops often view them with suspicion.
Source: Mercenary
