Percy: Mercenaries: Strong Norm, Weak Law

Percy, Sarah V. Mercenaries: Strong Norm, Weak Law. International Organization 61 (April 2007): 367-397.

“Private security companies and their mercenary predecessors appear to be uncontroversial actors in international relations. States have a long history of turning to the private sector to provide military services. Indeed, mercenaries are referred to as the worlds’ second-oldest profession and played important roles in state militaries until the midninteenth century” (367).

“...the international law designed to deal with [the acceptability of private forces] is so weak that it is virtually unusable” (368). There was a strong anti-mercenary norm throughout the late 20th centuries. States abided by this law and attempted to institutionalize it through the creation of laws. However, these laws are weak and ineffectual, also highlighting the state’s continues desire to rely on private actors to support military operations. “The conventional wisdom about mercenaries and anti-mercenary law is inaccurate, and the study of a weak law caused by a strong norm provides a revealing window into the relationship between social and legal norms” (368).

Four possible explanations for a weak mercenary law: “…in the 1970s and 1980s states did not care enough to create effective law because mercenaries did not cause enough practical difficulty nor did they prompt enough moral concern to require legal attention…A second argument is that states purposely created loopholes in the law on mercenaries…A third explanation of the weakness of anti-mercenary law might be that the most affected state4s, mainly weaker African states, were the most interested in creating international law to deal with mercenaries, and that more powerful Western states were not interested…Finally, the law against mercenaries could be ineffective because it reflects the lowest common denominator on which states could agree, and this minimal agreement has resulted in weak law” (369-70).

“Katzenstein defines norms as, ‘collective expectations for the proper behavior of actors within a given identity’” (371).

“The norm against mercenary use stems from the idea that mercenaries are financially motivated fighters who use force outside the bound of the sovereign state” (371).

“This section explains that the evident weakness of the law reflects the fact that the norm against mercenary use was strongly influential but impossible to translate into legally sensible terms” (375). “I then argue that another major weakness in the law, the difficulty of proving financial motivation, in fact directly reflects the influence of the anti-mercenary norm. The law’s problems were the side effects of trying to solve problems and make sure that the law would apply only to mercenaries” (375).

“Another explanation for the weaknesses of the law on mercenaries is that for law to be effective, it must be supported by powerful states. The fact that the creation of anti-mercenary law was largely spearheaded by African states and apparently ignored by Western states might provide evidence for this argument” (381).

“The fact that a strong social norm against mercenary use did not result in similarly strong law not only reveals that weak law does not always represent a normative failure, but also indicates some important features of the relationship between social and legal norms” (386).

“The international law on mercenaries might be so flawed that any mercenary caught under it is unlucky or foolish and might deserve to be shot in the company of his lawyer, but its flaws provide a remarkable opportunity to analyze the relationship between social and legal norms, and the process through which a social norm becomes a law…It is too easy to dismiss weak law as indicating nothing other than a predictable and expected failure. Attention to the normative reasons why law might be weak, however, can lead to understanding that there is not a clear relationship between norms and law; that in becoming legal norms, social norms do not necessarily become stronger or more effective. Scholars who take the role of norms seriously are perhaps too tempted to examine successful law because it better demonstrates that norms can influence state behavior. And scholars who are suspicious that norms can influence states are too quick to seize on weak laws as demonstrating problems with normative commitment. Anti-mercenary law demonstrates that the study of bad law can be good for the study of international relations” (394).