Right of peoples to self-determination 3 страница

67. Such mercenaries are not motivated by any fundamentalism, but rather by the payment which they receive for committing unlawful acts. Their experience, training and efficiency in destroying and killing render them useful for carrying out terrorist acts. In other words, the act in itself remains by nature terrorist but at the same time takes on a mercenary character owing to the agent executing it.

68. The Special Rapporteur feels that when investigating a terrorist attack one must also examine the possibility that it has been committed by a mercenary. The connection between terrorist act and mercenary activity cannot be ruled out.

69. In general, mercenary activity is not spontaneous. It usually occurs as a result of conspiracy to commit crimes. It is also commonly associated with other unlawful activities such as traffic in persons, drugs and arms. Some armed conflicts have broken out because of the existence of weapons markets that encouraged them, while others are unnecessarily prolonged for the same reason. Mercenaries are present in such traffic. Recourse is had to mercenaries for arms transport, whether as pilots, copilots, flight engineers or providers of armed security. They are also hired to act as dealers in the field or as instructors in the use of the war materiel sold.

70. Those trained in the use of armaments are usually military personnel but may also be members of guerrilla organizations or paramilitary groups with no significant military preparation. In illegal arms traffic, payment is effected in cash, but may also be in kind. In recent conflicts, weapons have been paid for with diamonds and other precious stones, petroleum or drugs, as can be seen in the cases of Afghanistan, Angola, Colombia, Liberia and Sierra Leone. The mercenary agent plays his part in such traffic without any concern as to what use will be made of the weapons or what damage they may cause. The magnitude of the phenomenon is astonishing, and the international community is not adequately protected against it. Efforts should be made to elaborate regulatory instruments for effectively thwarting that activity and to strengthen the political will to put an end to such illicit traffic.

VI. Private security and military assistance companies operating internationally

71. This topic has been a regular part of the recent reports of the Special Rapporteur. Its inclusion is due to the participation of certain security and military assistance companies in activities that constitute a threat to security and peace in a country or in a region and that hired mercenaries for that purpose. The present report, like the earlier ones, does not question the existence of such security companies, which offer a variety of services. However, it does uphold the need for national and international regulation and monitoring with a view to preventing the military participation of such companies in armed conflicts and in related activities such as the trafficking in and sale of arms and training in the use thereof.

72. It is the Special Rapporteur’s belief — and this view is generally shared by the first meeting of experts — that one of the new forms of mercenary activity is that which takes place through private security companies that hire out military services, using mercenaries for that purpose. The fact that international legal texts do not refer to this modality has facilitated its rapid expansion. At the same time, the proliferation of mercenaries hired by companies and their participation in armed conflicts, illegal arms traffic, drug traffic and violations of human rights bespeak the need for regulation, control, prevention and oversight of such companies. The United Nations must accordingly assist States in establishing mechanisms to regulate those companies and in harmonizing their national legislation.

73. It is a fact that in recent decades the State has gradually ceded its exclusive right to use force to the private sphere, so that in some regard security has been partially privatized. This phenomenon is observable primarily in relation to safety and security in cities and towns. This does not mean that the State has relinquished the provision of security, which is one of its raisons d’être, but rather that in certain respects it shares that function, while at the same time regulating it legally and setting the limits of private competency for security action.

74. The question, as can be observed today, is that there are security companies that have rapidly turned to the international market, offering to provide military services that lead them to become involved in armed conflicts and to operate in such a way that they undertake activities which intrinsically go beyond military advice and assistance and constitute acts contrary to peace and respect for human rights.

75. This is largely the result of lacunae in the international legislation in force, which can make it easy for companies to carry out operations that are in substance unlawful while alleging that they are not so. It is here that the new mercenary modalities come into play, masked by multipurpose private enterprises that hire mercenaries to offer military services that are highly specialized and efficient for war. However, international law does not provide for these new operational modalities of mercenary activity and the mercenaries are therefore professionals hired by private companies to perform specialized tasks.

76. Clearly, international rules refer to States, not enterprises. Consequently, such enterprises can claim that they are not responsible for unlawful acts with which States alone can be charged. Thus, if an enterprise hires mercenaries who commit human rights violations, the enterprise is not responsible and the violations go unpunished. This lack of precision and the difficulty of assigning responsibility must be dealt with promptly through adequate coordination and interpretation of the norms pertaining to human rights and international humanitarian law, but also by means of new international measures, if appropriate, and the national legislation of the member States. This would not only deal with the gaps and lacunae but would also resolve the issue of the alleged absence of liability of private companies that hire mercenaries in order to offer military services that lead them to intervene in armed conflicts and illicit traffic, in the context of which human rights violations are committed.

77. Even though the existing international instruments may not be the most suitable for preventing mercenary-related activities, defining mercenaries and dealing with the new modalities used by them, it would be wrong to conclude therefore that all Member States are defenceless. Firstly, it is essential to ensure that existing instruments are genuinely and effectively implemented and that those that are available, as is the case of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, come into force.

78. Secondly, States must not just note that there are gaps in their own legislation and, by doing nothing, in effect, grant carte blanche to private military security companies. This is highly irresponsible especially on the part of those countries where the most powerful private security companies that operate internationally — and that are known to have dealings with mercenaries — are concentrated and registered. In such cases, irrespective of what the situation is as regards international regulations, the State has an obligation to enact laws with a view to regulating private activity in the area of security, limiting its scope and, in particular, creating appropriate oversight and control mechanisms.

79. Indeed, at the current stage, the most direct and effective way of putting an end to impunity and imposing normative order in this area would seem to be to develop national legislation to regulate the activities of private security firms. national legislation could or should be concerned with regulating the provision of military assistance abroad, and the conditions under which arms are exported and transported; prohibiting the hiring, or any basis, of mercenaries who, through the firms, are sent to participate in armed conflicts, and supervising the activities of those firms with a view to renewing or suspending their authorizations and licences to operate, depending on whether or not they comply with the rules governing their activities. In that way, national legislation would be the first step towards concerted action among States which would adopt common legislative models and practices. All this would, moreover, serve to expedite the updating of international standards on this subject. In this context, the United Nations can support measures to promote transparency such as the creation of registers of military security firms.

80. It is worth referring, in this connection, to the points of view and suggestions that were exchanged at the meeting of experts. There was agreement on the need to update national legislation on such firms but it was also suggested that it would be worth considering the possibility of establishing a joint regulatory body under the auspices of the United Nations responsible for registering and monitoring the activities of the private security and military firms. Those firms would obtain the authorization to operate only if they submitted to internationally agreed principles and standards consistent with international human rights standards and humanitarian law. The Member States would submit information on the firms operating outside their territory and all of them would coordinate their activity to maintain a register of firms and ensure their ability to monitor them on a day by day basis. Thus, although every State would retain the power to authorize the firms, the coordinated information on their activities would operate as an effective control of their movements. Although it is a matter requiring further study, the initiative is an interesting one and might serve to curb abuses by the firms.

81. In any case, the primary focus should continue to be on the establishment of preventive measures intended to strengthen peaceful policies, avoid violent conflicts and increase the efficiency of United Nations operations in all areas that contribute to the peaceful resolution of conflicts. This would necessarily limit the scope for the expansion of private security firms into the provision of military services and also reduce the possibility of enrolling mercenaries in such activities. The United Nations must continue to study the use of mercenaries by such firms, their recruitment and hiring practices, and the transport and financial networks they use. A list of convicted mercenaries working for such firms should also be circulated to the Member States.

VII. Contributions to the legal definition of mercenary

82. Both the General Assembly and the Commission on Human Rights have stated the desirability of studying in depth and elaborating a legal definition of mercenary which would resolve the ambiguities and difficulties of application of the definition contained in article 47 of Additional Protocol I to the Geneva Conventions of 1949 and other customary definitions which may appear in the resolutions of the United Nations General Assembly or that contained in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, even though it has not yet entered into force.

83. The Special Rapporteur has devoted part of his time to considering this issue and has carried out bibliographical research and held interviews with representatives of States and inter-governmental organizations and with academic researchers and experts on the subject. The meeting of experts of January 2001 discussed the point extensively and a measure of agreement was reached in favour of a new definition. Although progress is not such as to indicate that a proposal is ready, we can note that there have been developments and mention those aspects on which there is already a consensus.

84. The first point on which the States and experts consulted agree is the need to condemn mercenaries and the view that the definition of mercenary contained in article 47 of Additional Protocol I to the Geneva Conventions of 1949 is inadequate. At the meeting of experts it was pointed out that, during the negotiations on Protocol I, objections were raised to the inclusion of that concept in a humanitarian convention and it was pointed out that the prohibition of the use of mercenaries should be the subject of a special treaty.

85. In earlier reports, the Special Rapporteur has referred extensively to the content of article 47 and has pointed out its inadequacies and the difficulties of applying it. All those comments remain valid and have been reinforced by the opinions expressed at the meeting of experts; the latter pointed out that the Protocol referred to “mercenaries” but not to “mercenarism”, which is a broader concept that includes the responsibilities of States and organizations concerned in the activities of mercenaries. Attention was also drawn to the difficulties inherent in the fact that mercenaries are not entitled to the status of combatants or prisoners of war. Lastly, the definition encompasses so many concurrent and concomitant requirements for characterization as a mercenary that it is impossible, in practice, to characterize anyone as a mercenary or, in any case, it is easy for mercenaries to avoid such a characterization. That being so, although at one time the definition was considered to be a first step, the current tendency is to describe it as partial, inadequate, applying only to international conflicts and inapplicable to new approaches such as the one involving the criminal responsibility of artificial persons (private security firms) that hire and employ mercenaries who violate human rights.

86. The second point on which there is consensus is the recognition that mercenary activity is not restricted to situations in which mercenaries are used to influence the right to self-determination but that it includes various types of activity which may also affect the stability of Governments, the right to the rational use of resource deposits within national territory or the enjoyment of human rights. All this may give rise to interference by mercenaries who, motivated by payment, may commit terrorist acts, attacks against persons, cultural objects or economic facilities, engage in illicit trafficking, or provoke armed or other conflicts with a view to carrying out violent and destabilizing assignments which have a profound impact on the enjoyment of human rights. Therefore, the mercenary component as a characteristic feature of criminal activity and the destabilizing effect which adversely affects human rights should be taken into account in the legal definition of mercenary.

87. The currently accepted meaning or use of the term mercenary is primarily focused on including in this rubric the hiring of the professional services of persons with a military background who are paid to intervene in an armed conflict in a country other than their own. But it has to be understood that the use of such professional services also extends to other unlawful acts such as the trafficking in persons, whether migrants or women, the trafficking in arms and munitions, drug trafficking, terrorism, acts of destabilization of legitimate Governments, acts to take forcible control of valuable natural resources, and even organized crime such as the seizure or theft of vehicles on a large scale. Any revision of the legal definition of mercenary should take this into account and suggest a concept that is broad enough to encompass the various types of crimes involving a mercenary component.

88. The third point concerns payment which is, without any doubt, the defining factor of mercenary status and activity. Mercenaries, particularly those who are hired to participate in combat or to train those who are to make up battalions, columns or commando units are typically individuals who have been in the military or who have received military training, and above all who are former members of special commando or parachute units and have experience in the use of sophisticated weapons. The mere fact that it is a Government that recruits mercenaries, or hires companies that recruit mercenaries, either in its own defence or to provide reinforcements in armed conflicts, does not make such acts any less illegal or illegitimate. Governments are authorized to operate solely under the Constitution and the international treaties to which they are parties. This point of view should be taken into account in a broader legal definition of mercenaries.

89. With respect to the nationality requirement there is still no consensus. The aim of the rules of customary international and treaty law is, in essence, to combat mercenary acts in the broad sense of the buying and selling of military services that are not subject to the prevailing rules of international humanitarian law and that are likely to lead to war crimes and human rights violations. If nationals of the affected country are used, they cannot, strictly speaking, be considered mercenaries. That has been the position hitherto. However, this requirement is under discussion. If nationals are recruited for the clear purpose of being used, as mercenaries, and the only impediment to their being labelled as such is the fact that they are nationals of the affected country, then the rule should disregard nationality and focus primarily on the mercenary nature of the act itself. Thus, the requirement to be a non-national of the country in which the mercenary becomes involved should be reviewed and analysed more deeply so as to give greater weight in the definition to the nature and purpose of the illicit act with which an agent is paid to be associated. It is to be noted in this connection that the meeting of experts agreed that the situation should be analysed and discussed in more detail. In short, the information summarized here, although it is not complete, demonstrates the need to establish a legal definition of mercenaries that includes the various forms of mercenary action to ensure that mercenarism is effectively penalized and curbed by the law.

VIII. Current status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries

90. The International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which the General Assembly adopted by resolution 44/34 of 4 December 1989, has yet to enter into force even though almost 12 years have elapsed since its adoption. Nevertheless, 21 States have either ratified or acceded to it. This means that it requires ratification or accession by only one more State to enter into force. That is important since the Convention would give mankind yet another international instrument for the protection of human rights.

91. Despite the objections to the definition contained in article 1, the Special Rapporteur believes that it would be easier to improve this important instrument if it were to enter into force in the near future. The early entry into force of the Convention could be the starting point in efforts to address recent mercenary activities that have remained unpunished. The Convention would facilitate preventive cooperation among States, better identification of situations involving mercenaries and the clear determination of jurisdiction in each case and will facilitate procedures for the extradition of mercenaries and the effective prosecution and punishment of offenders.

92. As noted above, 21 States have completed the formal process of expressing their willingness to be bound by the International Convention. Those States are: Azerbaijan, Barbados, Belarus, Cameroon, Croatia, Cyprus, Georgia, Italy, Libyan Arab Jamahiriya, Maldives, Mauritania, Qatar, Saudi Arabia, Senegal, Seychelles, Suriname, Togo, Turkmenistan, Ukraine, Uruguay and Uzbekistan. Nine other States have signed the International Convention, but have not yet ratified it. They are: Angola, Congo, Democratic Republic of the Congo, Germany, Morocco, Nigeria, Poland, Romania and Yugoslavia.

IX. Conclusions

93. General Assembly resolution 55/86 of 4 December 2000 and Commission on Human Rights resolution 2001/3, adopted on 6 April 2001 at its fifty-seventh session, are confirmation of the concern of the United Nations at the existence of mercenary activities which threaten the right of peoples to self- determination and their effective enjoyment of human rights. The text of the Commission’s resolution confirms that such activities are adopting new forms, manifestations and modalities. The terms of the renewal of the mandate of the Special Rapporteur on mercenary activities for a period of three years include consideration of cases of the use of mercenaries that threaten the right of peoples to self-determination as well as all new forms adopted to extend mercenary activities.

94. The first meeting of experts convened by the Office of the High Commissioner for Human Rights in compliance with resolutions 54/151 of the General Assembly and 2000/3 of the Commission on Human Rights was a very useful forum for the in-depth study of the use of mercenaries and the serious harm caused to peoples that suffer from it. The final report of the experts includes substantive aspects relating to the need to develop an updated and satisfactory legal definition of mercenaries. It also contains aspects relating to the various ways in which the use of mercenaries affects self-determination and human rights. In that context, the experts regard mercenary activities as illicit and likely to lead to the violation on a massive scale of human rights among populations affected by such activities.

95. The meeting of experts suggested that the mandate of the Special Rapporteur should be broadened and that a distinction be made between the traditional approach involving self-determination and the approach addressing the question of private international security firms that recruit mercenaries and the range of phenomena involving criminal activity by mercenaries: unlawful trafficking, terrorism, organized crime, and so forth. The resolution of the Commission on Human Rights which renews the mandate of the Special Rapporteur is broadly consistent with that approach.

96. It was assumed that the end of colonialism, the cold war and apartheid would relieve the sufferings of many African peoples; instead, the situation has deteriorated further, particularly in the western portion of the continent, rich in high-quality diamonds and mineral and petroleum resources, which arouse the greed of unscrupulous politicians, merchants operating in the global market and criminal gangs who enrich themselves by plundering and smuggling gems and precious stones. Mercenaries take part in the plundering and carry out many of the criminal operations.

97. Attempts to impede the self-determination of the African peoples and to destabilize legitimate governments are still occurring in some countries, and in these situations mercenary forces generally play an active role. In addition, however, conflicts have arisen over access to and control of natural resources such as petroleum, uranium, magnesium, bauxite and, above all, precious stones. Those who wish to exploit these resources do not hesitate to stir up conflicts, to arm and finance rebel groups and to hire mercenaries. The armed conflicts not only set at odds groups within the country and other States in the conflict regions but also draw in those in Europe who control the markets in precious stones and especially diamonds.

98. One of the most egregious attempts to exploit the riches of Africa is that of UNITA in Angola. This rebel force is one of the biggest employers of mercenaries. In the territories under its control it extracts and sells unlimited quantities of diamonds, despite the United Nations embargo, and it uses mercenaries to smuggle diamonds to European markets, primarily through Antwerp. The proceeds of the illicit trade enable UNITA to continue the war that is bleeding Angola dry.

99. Diamonds are also a key factor in the armed conflict in Sierra Leone. Despite the ceasefire, Revolutionary United Front combatants are still armed, still control important diamond-mining areas and still engage in pillaging, terrorist attacks and violations of international humanitarian law. As in other conflicts, mercenaries are involved in the diamond trafficking and the sale of weapons to the Front.

100. Although the traditional use of mercenaries to impede the exercise of the right of a people to self-determination has by no means disappeared, mercenary activity has expanded and assumed new forms in the armed conflicts occurring in Africa.

101. In both traditional and new forms of mercenary activity, the recruitment and hiring of mercenaries are facilitated by gaps in the law. Article 47 of Additional Protocol I of 1977 to the Geneva Conventions has proved inadequate. Despite the gaps and deficiencies in existing legal definitions, it is, however, possible to assemble information and evidence that may help in identifying mercenaries and banning their activities.

102. The need to act more effectively against mercenary activities makes it advisable to determine where mercenaries are involved in a number of criminal activities that violate human rights and the rules of international humanitarian law. In investigating terrorist attacks, consideration should be given to the possibility that they may have been committed by mercenaries. A link between terrorism and mercenary activity cannot be ruled out.

103. Mercenary activity often comes about as the result of a conspiracy to commit such crimes as trafficking in persons, drugs and weapons. Some armed conflicts have erupted because there exist markets in weapons to fuel them. Others have been unnecessarily protracted for the same reason. Mercenaries are actively involved both in arms trafficking and in training others in the use of the weapons sold.

104. Although the existence of private companies that offer security services on the international market is not illegal in itself, it is worrisome that such companies, in the absence of national and international regulation, hire mercenaries to engage in secret and prohibited deals, involving their employees in active participation in armed conflicts, illicit arms and drug trafficking and human rights violations. That aspect of the conduct of private companies goes beyond military assistance and advice to encompass acts that threaten the peace and violate human rights.

105. States should not point with a shrug to gaps in their national legislation and passively allow private military security firms to branch out into mercenary activities. To allow that to happen is highly irresponsible, especially on the part of those countries where the most powerful private security companies that operate internationally — and that are known to have dealings with mercenaries — are concentrated and registered. If there are gaps in the law, such States have an obligation to pass legislation to regulate private security activity, limit its scope and set up adequate oversight and control mechanisms.

106. With regard to private security companies, national legislation is the first step towards concerted action by States, which should follow model laws and common practices. International rules on the subject can then be updated more rapidly.

107. The first meeting of experts on mercenary activities made important contributions towards a better legal definition of the subject. Among those contributions was the notion that the terms to be defined should comprise not only the mercenary as an individual, but also mercenarism, a broader concept encompassing the responsibilities of the States and organizations concerned in mercenary activities. Such activities may be a factor in either international or internal conflicts; their scope is broad and can affect self-determination and human rights in a variety of ways. Lastly, a mercenary may be characterized as a person knowledgeable in military matters or in the use of firearms who places that knowledge and experience at the service of a third party who hires him to undermine the exercise of self-determination in a given State, destabilize its legitimate government, destroy infrastructure or harm persons through acts of terrorism, and possibly to participate in illicit trafficking. The distinguishing factor is payment, which defines the nature of the act. A mercenary is a criminal agent who is paid to commit crimes and undermine human rights.

108. Although up to now the tendency has been to assume that an individual must be a national of a country other than that in which he is operating in order to be considered a mercenary, that notion is currently under review. It is felt that the nationality requirement should be set aside when it is clear that nationals are being paid to act against their own country, with the result that those who are, in fact, acting as mercenaries, avoid being labelled as such.

109. Despite the limitations of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the international community would be benefited if it were in force. To date, 21 States have signed it. Only one more ratification or accession is needed for it to enter into force.

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