Right of peoples to self-determination 1 страница

Fifty-sixth session

Item 130 of the provisional agenda*

Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to
self-determination

Note by the Secretary-General**

  * A/56/150. ** In accordance with section C, paragraph 1, of General Assembly resolution 54/248, this report is being submitted on 27 July 2001 so as to include as much up-to-date information as possible.

The Secretary-General has the honour to transmit to the members of the General Assembly, in accordance with General Assembly resolution 55/86 of 4 December 2000, the report prepared by Mr. Enrique Bernales Ballesteros (Peru), Special Rapporteur on the question of the use of mercenaries.

Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, submitted by the Special Rapporteur of the Commission on Human Rights

Contents

		Paragraphs	Page
I. Introduction.........................................................	1–9
II. Activities of the Special Rapporteur	10–26
A. Implementation of the programme of activities	10–11
B. Correspondence..................................................	12–26
III. The first meeting of experts.............................................	27–39
IV. Mercenary activities in Africa............................................	40–59
V. Current status of mercenary activities.....................................	60–70
VI. Private security and military assistance companies operating internationally	71–81
VII. Contributions to the legal definition of mercenary............................	82–89
VIII. Current status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries	90–92
IX. Conclusions.........................................................	93–109
X. Recommendations....................................................	110–118

I. Introduction

1. During its fifty-fifth session, the General Assembly adopted resolution 55/86 of 4 December 2000 by which, inter alia, it decided to consider at its fifty-sixth session the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. It requested the Special Rapporteur to report his findings on the use of mercenaries to undermine the right of peoples to self-determination, with specific recommendations, to the General Assembly at its fifty-sixth session. It should be pointed out that the General Assembly recognized that armed conflict, terrorism, arms trafficking and covert operations by third Powers, inter alia, encourage the demand for mercenaries on the global market and reaffirmed that the recruitment, use, financing and training of mercenaries are causes for grave concern to all States and violate the purposes and principles enshrined in the Charter of the United Nations.

2. The General Assembly urged all States to take the necessary steps and to exercise the utmost vigilance against the menace posed by the activities of mercenaries and to take the necessary legislative measures to ensure that their territories and other territories under their control, as well as their nationals, are not used for the recruitment, assembly, financing, training and transit of mercenaries for the planning of activities designed to destabilize or overthrow the Government of any State or threaten the territorial integrity and political unity of sovereign States, or to promote secession or to fight the national liberation movements struggling against colonial or other forms of alien domination or occupation.

3. It invited all States to investigate the possibility of mercenary involvement whenever criminal acts of a terrorist nature occur and to cooperate fully with the Special Rapporteur in the fulfilment of his mandate, and called upon all States that had not yet done so to consider signing or ratifying the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The General Assembly welcomed the adoption by some States of legislation restricting the recruitment, assembly, financing, training and transit of mercenaries and it welcomed the cooperation extended by those countries that had received visits from the Special Rapporteur.

4. The General Assembly urged the United Nations High Commissioner for Human Rights to convene a workshop on the traditional and new forms of activities of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination before the fifty-seventh session of the Commission on Human Rights so that a report on the outcome of the workshop might be submitted to the Commission at that session. It also requested the Office of the United Nations High Commissioner for Human Rights, as a matter of priority to be programmed in its immediate activities, to publicize the adverse effects of the activities of mercenaries on the right to self-determination and, when requested and where necessary, to render advisory services to States affected by the activities of mercenaries.

5. In this regard, the Special Rapporteur wishes to report that a first workshop was held in Geneva from 29 January to 2 February 2001. The report on the outcome of the workshop is contained in document A/CN.4/2001/18. An information leaflet on the adverse effects of the activities of mercenaries on the right to self-determination has been prepared and is in the process of being published by the Office of the High Commissioner. A second workshop is to be held in the coming months.

6. On 6 April 2001, at its fifty-seventh session, the Commission on Human Rights adopted resolution 2001/3 whereby it, inter alia, reaffirmed that the use of mercenaries and their recruitment, financing and training are causes for grave concern to all States and violate the purposes and principles enshrined in the Charter of the United Nations; recognized that armed conflicts, terrorism, arms trafficking and covert operations by third Powers, inter alia, encourage the demand for mercenaries on the global market; called upon all States to consider taking the necessary action to sign or ratify the International Convention and invited them to investigate the possibility of mercenary involvement whenever and wherever criminal acts of a terrorist nature occur.

7. The Commission on Human Rights welcomed the convening by the Office of the United Nations High Commissioner for Human Rights of the workshop on the traditional and new forms of mercenary activities and took note of the report on the outcome of that meeting as a valuable contribution to the process of elaborating a clearer legal definition of mercenaries that would make for more efficient prevention and punishment of mercenary activities. It decided to renew the mandate of the Special Rapporteur for a period of three years and requested him to consult States, intergovernmental and non-governmental organizations in the implementation of the resolution and to report, with specific recommendations, his findings on the use of mercenaries to undermine the right to self-determination to the Commission at its fifty-eighth session.

8. It should be pointed out that the Commission requested the Special Rapporteur to continue taking into account in the discharge of his mandate that mercenary activities are continuing to occur in many parts of the world and are taking on new forms, manifestations and modalities. It requested the United Nations High Commissioner for Human Rights to provide the Special Rapporteur with all the necessary assistance and support for the fulfilment of his mandate, including through the promotion of cooperation between the Special Rapporteur and other components of the United Nations system that deal with countering mercenary-related activities, and, as a matter of priority, to publicize the adverse effects of mercenary activities on the right of peoples to self-determination. It also requested the Office of the High Commissioner for Human Rights, when requested and where necessary, to render advisory services to States affected by the activities of mercenaries.

9. Accordingly, and pursuant to the above-mentioned resolution 55/86, the Special Rapporteur has the honour to submit this report to the General Assembly for consideration at its fifty-sixth session.

II. Activities of the Special Rapporteur

A. Implementation of the programme of activities

10. The Special Rapporteur submitted his report to the Commission on Human Rights on 22 March 2001. While in Geneva, the Special Rapporteur held consultations with representatives of various States and met with members of non-governmental organizations. He also held coordination meetings with the Activities and Programmes Branch of the Office of the United Nations High Commissioner for Human Rights.

11. The Special Rapporteur returned to Geneva on two occasions, from 21 to 25 May 2001 and from 9 to 12 July 2001, to hold various consultations, take part in the second session of the Preparatory Committee for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and draft this report.

B. Correspondence

12. Pursuant to resolutions 55/86 of the General Assembly and 2001/3 of the Commission on Human Rights, the Special Rapporteur sent a communication on 16 June 2001 to all States Members of the Organization, requesting the following: (a) information on the possible existence of any recent mercenary activities (recruitment, financing, training, assembly, transit or use of mercenaries); (b) participation by nationals of their country as mercenaries in committing acts against the sovereignty of other States, the exercise of the right to self-determination by other peoples and the enjoyment of human rights; (c) information on the possible existence of mercenary activities in the territory of another country against the State; (d) information on the possible participation of mercenaries in committing internationally wrongful acts such as terrorist attacks, formation of and support for death squads and paramilitary organizations, trafficking in and kidnapping of persons, drug trafficking, arms trafficking and smuggling; (e) information on existing domestic legislation and on treaties outlawing mercenary activities to which the State is party; (f) suggestions for enhancing the international treatment of the topic, including suggestions for a clearer definition of mercenaries; and, lastly, (g) information and views on private security service and military advice and training companies.

13. In a letter dated 9 March 2001, the Minister for Foreign Affairs of El Salvador, María Eugenia Brizuela de Ávila, stated the following:

“With a view to cooperating with the Special Rapporteur in the performance of his mandate, I have the pleasure, on behalf of the Government of El Salvador, to extend to him an invitation to visit the country so that he may obtain direct knowledge of the matter in question, relating to criminal acts of a mercenary character reported by the Cuban authorities.

“My Government has been collaborating with the Special Rapporteur, providing the information requested, and in that spirit considers that the visit will serve to broaden the contacts established and contribute to clarifying situations of mutual interest.

“The date of the visit shall be as best suits the Special Rapporteur; we ask him to communicate his decision so that we may organize a programme of activities for him, work out any necessary details and meet his needs.

“I should appreciate your making the effort to visit my country, which hereby offers you all the attention and collaboration necessary for the success of the visit.”

14. The Special Rapporteur, at a meeting held on 12 March 2001 with the Permanent Representative and the Deputy Permanent Representative of El Salvador to the United Nations Office at Geneva and in a letter dated 10 July 2001, addressed to the Minister for Foreign Affairs of El Salvador, expressed thanks for the invitation extended to him to visit El Salvador on an official mission within the framework of the investigation of terrorist activities carried out in Cuba by mercenaries. The Special Rapporteur hopes to visit that country in the context of visits to other countries in the region and is coordinating the dates of such a visit with the Ministry of Foreign Affairs of El Salvador.

15. By a note verbale of 29 March 2001, the Permanent Mission of the United States of America to the United Nations Office at Geneva replied to the Special Rapporteur’s letter of 7 December 2000 (see E/CN.4/2001/19, para. 21), as follows:

“As reported to the Special Rapporteur in a previous note, the Federal Bureau of Investigation has a pending investigation into these allegations. It is [its] policy not to discuss the status of pending investigations, so the information we can provide to him is extremely limited. Unfortunately, the United States Government has not received an answer to [its] request to the Cuban Government for assistance with the investigation.

“In answer to his question on Luis Posada Carriles: the United States Government has no record showing that he was or is a United States citizen.”

16. In a letter of 26 June 2001, addressed to the Secretary of State of the United States of America, the Special Rapporteur expressed thanks for the support provided for his mandate by the Government of that country and requested an official invitation to visit the United States of America. The Special Rapporteur pointed out that such a visit would enable him to engage in a dialogue with Government authorities and representatives of academic and non-governmental communities in the United States concerning the relationship between mercenaries and terrorism and between mercenary activities and trafficking in persons, weapons and drugs, and also concerning recourse to the use of mercenaries by organizations of exiles seeking to overthrow the Governments of their countries. The Special Rapporteur expressed the wish to have more detailed knowledge of available information and of the position of the United States Government on certain Cuban-American organizations established in southern Florida that allegedly make use of mercenaries to carry out activities in Cuba in contravention of international law, such as those carried out against tourist facilities in that country from 1996 to 1998. The visit would be in line with those made by the Special Rapporteur to South Africa in 1996 and to the United Kingdom of Great Britain and Northern Ireland in 1999 for the purpose of studying the question of the use of mercenaries by private security companies that offer military assistance and advisory services on the international market.

17. In a letter dated 10 July 2001 addressed to the Minister for Foreign Affairs of Panama, Mr. José Miguel Alemán Healy, the Special Rapporteur asked about the juridical situation and the legal proceedings instituted against Luis Posada Carriles, Gaspar Jiménez Escobedo, Guillermo Novo Sampol and Pedro Remón, Cuban nationals, reported to have entered Panama illegally with the intention of carrying out a criminal attack against the person of Fidel Castro Ruz, Head of State of the Republic of Cuba, during the tenth Ibero-American Summit. The Special Rapporteur requested an official invitation to visit Panama in order to meet with Government officials and authorities of that country and interview the detainees. The Special Rapporteur feels that such interviews might help to clear up definitively the series of criminal attacks having a mercenary component that have been carried out in Latin American countries during the past 40 years.

18. The Special Rapporteur also wrote to the Minister for Foreign Affairs of Peru, Mr. Javier Pérez de Cuéllar, apprising him that he had been informed that, between 1997 and 1999, Israeli military officers had allegedly trained an elite unit, known as the “Zeus Group”, made up of officers of the Peruvian army and members of the national police and that the commando force had allegedly been charged, among other tasks, with protecting and ensuring the personal safety of Vladimiro Montesinos Torres, then principal adviser to the National Intelligence Service. The Israeli military staff had reportedly entered and left Peru secretly or under cover via a military airport, that belonging to Air Group No. 8. The coordinator of the group of instructors was said to have been Isaac Barnet, reportedly an intelligence officer in the Israeli army. The members of the “Zeus Group”, who reportedly numbered more than a thousand, had had as their chief Colonel Oscar Cáceres Rodríguez of the Peruvian army, a commando school officer attached to the National Intelligence Service since 1993. The training had reportedly included courses in the protection of dignitaries, attack and defence techniques and operations involving residential raids, assaults on vehicles and release of hostages, and had been carried out with Israeli “Galli” rifles acquired from alleged arms traffickers James Stone Cohen and Ilan Weil Levy.

19. The Special Rapporteur requested official information from the Government of Peru regarding those facts. In particular, he asked whether officers of the armed forces of Israel had been present in Peru during the period from 1997 to 1999 and, if so, whether that presence had occurred within the context of official agreements between the two States; whether the instructors of the “Zeus Group” had been active or reserve officers of the Israeli army; and whether they had been sent on an official mission by the Government of that country or had been recruited under private contracts. He requested information regarding where and how they had been recruited and hired, what remuneration they had received and what relationship they had had with the purchase of Israeli arms. In particular, the Special Rapporteur inquired whether those instructors had belonged to, or been recruited or hired by or through, a military security service company.

20. The Government of Peru has reported that it is processing its reply to the communication referred to above. It should be mentioned, however, that it is common knowledge that Vladimiro Montesinos Torres has been indicted on 54 counts for various acts characterized as crimes under Peruvian law. Some of the charges relate to unlawful acts covered by human rights treaties to which Peru is a party. The investigations conducted in connection with flagrant human rights violations, such as the Barrios Altos assassinations, in which 17 persons were executed in November 1991; the forced disappearance and subsequent assassination of nine students and a professor of Universidad Pedagógica Guzmán y Valle (La Cantuta) in July 1992; and the assassination of an intelligence agent named Mariella Barreto and the torture of another, Leonor La Rosa, in early 1997, have resulted in the identification, as perpetrators of those crimes, of military personnel under the orders of the National Intelligence Service, some of them belonging to the so-called “Colina Group”.

21. The same investigations have revealed that the latter group was under the direct orders of former presidential adviser Vladimiro Montesinos, who has been charged with forming and training that group and elaborating the plans and orders for the commission of the crimes attributed to the group. It is hoped that an impartial investigation will reveal who trained this assassination group, but it is valid to take into account the formation and criminal activity of the “Colina Group”. Several years later, during 1997, Montesinos took decisions of a military and political nature that were outside his functions as presidential adviser and contrary to military and police laws and regulations. Within this context, he decided to form elite groups which were charged with protecting him and with other missions assigned directly by him. Israeli military officers, allegedly contracted by the National Intelligence Service — although there are no public documents indicating the validity of the authorization or the purpose for which they were hired — arrived in Lima and provided sophisticated military training for one of those groups, the “Zeus Group”. Such a decision could be taken only within the framework of bilateral agreements relating to military matters between States. The Republic of Peru apparently has no agreements of that type with the State of Israel, nor do we know of any special invitations to hire foreign officers expert in military and commando training for special operations.

22. The Special Rapporteur considers it must be clearly established whether the foreign personnel that conducted that training were sent to Peru within the framework of any military assistance agreement or convention between the two States. Should that prove not to be the case, it must be determined who authorized the hiring of the foreign military personnel and in what capacity they arrived in Peru and offered sophisticated military training to the groups operating directly under the orders of Vladimiro Montesinos. Full knowledge of the truth of this matter is indispensable. Confidential military sources have maintained before the Special Rapporteur that such foreign officers should be considered mercenaries hired by Vladimiro Montesinos, who, exercising State powers which he did not possess, brought those officers to Peru to train groups entrusted with the conduct of secret actions not in accord with military and police laws and regulations.

23. The criminal record of the “Colina Group” and the wide range of unlawful activities in which Montesinos was involved give rise to the suspicion that the groups which acted as his own personal force for protection and other purposes also carried on unlawful activities. If mercenaries were hired to train the groups — which were set up on the fringes of military and police laws and regulations — that is something which absolutely must be known, since that fact, in itself, is contrary to international norms.

24. By a note verbale of 11 July 2001, the Permanent Mission of Cuba to the United Nations Office at Geneva replied to the Special Rapporteur’s request for information, as follows:

“The Government of the Republic of Cuba attaches immense importance to the efforts made in the framework of the United Nations system with a view to condemning and combating the recruitment, use, financing and training of mercenaries. Particularly important is the monitoring by the General Assembly and the Commission on Human Rights of the adverse impact of mercenary activities on the enjoyment of all human rights, including the right of peoples to self-determination.

“The adoption of the 1989 Convention by means of General Assembly resolution 44/34 was a landmark in the development of an international legal framework for combating mercenary activities, despite the limitations which, in our opinion, characterize that instrument.

“Cuba considers that there is a fundamental need to promote ratification of the 1989 Convention by States that have not yet done so in order to permit its entry into force, and is itself immersed in the required domestic procedures with a view to the possible ratification of that instrument.

“Cuba has previously transmitted to the Office of the United Nations High Commissioner for Human Rights its contributions and views regarding action which should be taken for a possible strengthening of the international legislative framework for combating the use of mercenaries. Some of these views are reiterated in this note.

“The Government of the Republic of Cuba wishes to take this opportunity to express its satisfaction that the Office of the United Nations High Commissioner for Human Rights has convened a meeting of experts to examine the question of the progressive development of the international legal framework for combating mercenary activities in all their forms and manifestations, as repeatedly requested in resolutions of the General Assembly and the Commission on Human Rights.

“Mercenary activities were defined in the Cuban Penal Code of 1979. The definition of such activities was reproduced verbatim in article 119 of the Penal Code of 1998, currently in force. Cuba considers that the definition of mercenaries set out in article 1 of the 1989 Convention does not take sufficient account of the various manifestations of mercenary activity and, furthermore, lays down excessive requirements for characterizing mercenaries as such, essentially because it requires that those manifestations appear concurrently. The Cuban Government has stated that it is inappropriate to use as a criterion for the definition of mercenaries the amount of remuneration received for carrying out mercenary activities.

“Moreover, to exclude from the definition of mercenaries nationals who, in exchange for remuneration, act against the interests of their own country in the service of a foreign Power or interest particularly weakens its scope. Cuba has recently made specific proposals concerning a possible reformulation of the concept of mercenaries which remain fully relevant.

“The Government of the Republic of Cuba attaches special significance to the discharge of the mandate of the Special Rapporteur of the Commission on the question of mercenaries and is therefore doing its utmost to intensify its cooperation with Mr. Enrique Bernales Ballesteros, who has been acting in that capacity with great professionalism.

“In response to an invitation from the Cuban Government, Mr. Bernales Ballesteros paid a fruitful visit to the country, during which he was presented with abundant testimony and documentary evidence concerning the mercenary activities carried out against Cuba in recent years. The evidence directly involves organizations and persons residing in countries geographically close to Cuba, whence they operate; accordingly, the Cuban Government calls upon the Governments of the States concerned, particularly the Government of the United States of America, to consider the possibility of inviting the Special Rapporteur to visit them.

“For over forty years, acts of aggression and terrorism against Cuba involving the use of mercenaries have been part of the United States Government’s policy of hostility towards the Cuban revolution.

“Numerous mercenary actions against Cuba are promoted, organized, prepared and financed from the territory of the United States. The terrorist organization Cuban-American National Foundation, with total impunity and the undeniable complicity of the United States authorities, organizes and finances the recruitment and training of mercenaries for use against our country, in most cases in acts of terrorism.

“In this context, Cuba also condemns unequivocally all acts, methods and practices of terrorism in all its forms and manifestations, wherever and by whomsoever they are committed.

“As in the case of mercenary activities, and bearing in mind the close relationship between mercenarism and terrorism, Cuba has participated actively in the activities and efforts of the United Nations to combat international terrorism and, although it acknowledges that the outcome of such efforts has sometimes been localized or of limited scope, it has supported them in the firm conviction that in this field the contribution of the United Nations and of the international community as a whole is an urgent matter of priority.

“Cuba is in favour of the appropriate codification of a series of elements which form an inseparable part of the struggle against terrorism in all its forms and manifestations such as efforts to combat the funding of international terrorism and the use of the territory of one State for the organization of terrorist acts against another State and the training of perpetrators of such acts.

“True to this tradition, Cuba has continued to insist in international forums that State terrorism and terrorist acts encouraged or tolerated by States must be unequivocally condemned in the context of the condemnation of terrorist acts, methods and practices in all their forms and manifestations wherever and by whomever they are committed. The activities of one State aimed at destabilizing another by sponsoring, training and financing terrorist elements to act against the other State, and providing them with resources and protection in its territory or elsewhere, must also be defined and condemned.

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