Military Agreement International Law
5Befory 1945, concerns about mercenaries were largely expressed by the evolution of the neutrality law. A country that allowed the use of its territory for the recruitment or summoning of mercenaries was considered a supporter of a war seeker. This was a position that would probably lead the neutral country into a conflict that did not interest it by retaliating from one of the belligerents. As a result, provisions were inserted into the 1907 Hague Convention, which prohibits the recruitment of mercenaries on national territory5. These obligations were limited to countries that controlled their own territory and were not extended to the prevention of nationals who moved to another country to join the army of a man in search of war, such as foreign persons who had joined the International Brigades during the Spanish Civil War. A number of states have introduced national legislation to strengthen their international engagement, while a few have tried to control the actions of their citizens who wished to join foreign armies. 35 At the end of the day, at the bottom of this argument, it is not a question of whether a state is responsible for the obligations to the international community, it is indisputable, but to what extent that responsibility goes. In the past, the law has found it inappropriate to attempt to transfer responsibility to a state in which that state has satisfactorily attempted to stop acts caused by their own nationals, which could lead to a violation by another state. Therefore, without the Knowledge of these acts by the State concerned, it can only take limited measures to prevent such acts and, as such, the international community has not considered it appropriate to punish the State concerned for these acts committed by its nationals. Moreover, many states, especially less developed states, do not have the resources to control the movements and actions of their nationals. It is therefore not surprising that the international community has supported the attempts of some States to introduce legislation and administrative measures to control the measures taken by their nationals, which they consider to be the simplest route. These legislative measures are within the limits of the possibilities of most Member States, including most of the less developed Member States, of the international community. 33The consequence for States not to exercise their international responsibility to other Member States is that arbitration tribunals and courts impose a standard of absolute liability on them.
In the past, relative standards have been introduced to cover two components: knowledge and capacity. The fact that a state is aware of or is intended to be aware of a harmful act is not sufficient to justify its responsibility. Nevertheless, traditional international law requires states to show good intentions by extending all appropriate efforts to protect Member States from aggression by their nationals and punish them. 66 Debate is ongoing as to whether PMCs are companies whose employees are mercenaries or military advisers, and the distinction between the two is not yet clear. 28 Here, too, there is no total prohibition on the use of mercenaries under international customary law. These conventions, introduced by the international community, focused on banning mercenary activities aimed at the sovereignty of legitimate states, the repression of national liberation movements or national self-determination.