Right of peoples to self-determination 2 страница

“In addition to the long list of mercenary activities with an evident terrorist purpose documented earlier by the Government of Cuba, there are other more recent activities which prove that such practices are still continuing and are intended to impede and deny the right of the Cuban people to exercise their right to self-determination.

“On 26 April 2001, Cuban border guards detected and detained 3 mercenaries coming from the territory of the United States who were attempting to penetrate deep into the territory of the Republic of Cuba in order to carry out terrorist plans.

“The names of the three mercenaries, of Cuban origin, are: Ihosvani Suris de la Torre, the head of the group, Máximo Pradera Valdés and Santiago Padrón Quintero.

“Four AK-47 rifles of Romanian manufacture, one M-3 rifle, three Makarov pistols, night vision devices, a cellphone together with other munitions and a considerable sum of money were taken from the three individuals mentioned.

“According to the voluntary confession of one of the detained persons, the group planned to carry out further terrorist attacks against Cuban tourist facilities and to simulate a counter-revolutionary uprising by supposed members of the Cuban Revolutionary Armed Forces in the centre of the island.

“The mercenaries arrested also named the persons who had directed, organized and directly financed the operation, who are known terrorists and leaders of groups linked with the Cuban-American National Foundation.

“All the preparations for this mercenary action were made in Miami, Florida, in full view of the state and federal authorities of the United States. Those involved openly bought stocks of weapons and received training in military training facilities publicly maintained by terrorist organizations of Cuban origin such as Alfa 66 in Florida.

“It is well-known that a plan to assassinate President Fidel Castro organized by the Cuban-American National Foundation was foiled in Panama on 17 November 2000 thanks to information provided by Cuba. One of the main perpetrators of the attack was to have been the well-known international terrorist Luís Posada Carriles; he is now under arrest in Panama.

“Another three persons who were residents of the United States and linked with terrorist organizations having their headquarters in that country were arrested together with him as accomplices. All of them had an extensive record of carrying out such acts. Their names are Pedro Remón Rodríguez, Guillermo Novo Sampoll and Gaspar Jiménez Escobedo.

“They were in possession of 20 kilograms of C-4 explosives and 50 packets of Semtex, plans of the auditorium of the University of Panama and other evidence that they were preparing to blow up the premises during the meeting that President Fidel Castro was to have with thousands of Panamanian students. They could also have acted against other events at the Ibero-American Summit and seriously endangered the life of the other Presidents participating.

“Posada Carriles was trained by the Central Intelligence Agency and worked as an official of that organization to bring together the most aggressive mercenary groups of Cuban origin. He was responsible for blowing up a Cubana de Aviacíon passenger aircraft in flight, in 1976, over Barbados and, in 1997, he organized the bombing campaign in Havana hotels using Central American mercenaries some of whom were arrested and punished in Cuba.

“The Cuban authorities formally requested the Government of Panama to extradite Posada Carriles and the other terrorists, giving full assurances that they would receive due process, that they would not face the death penalty and that they would not be sentenced to more than 20 years in prison. Cuba also proposed that they should be tried in Havana by an international Latin American tribunal.

“In spite of that, the Panamanian Government refused to extradite him.

“Immense pressure was brought to bear on this process by the Government of the United States to prevent the extradition of the group of terrorists. There was nothing surprising about that because successive administrations over several decades have organized, financed and carried out numerous terrorist acts against Cuba using such mercenaries.

“These new instances of mercenarism linked to terrorism are a further demonstration of how important it is for the international community to keep mobilized in the fight against such practices in all their forms and manifestations, given their direct impact on the enjoyment of all human rights, in particular the right of peoples to self-determination”.

25. By the time the communication was received from the Government of Cuba, the Special Rapporteur had finished the preparation of this report. The claim that three people coming from the state of Florida in the United States attempted secretly to enter Cuban territory will be investigated by the Special Rapporteur, so as to determine the purpose of committing terrorist acts in Cuban territory and to explore fully the mercenary aspect of the plan.

26. By a note verbale dated 11 July 2001, the Permanent Mission of the Republic of Maldives to the United Nations replied to the circular letter from the Special Rapporteur, as follows:

“There is no information on the existence or the use of mercenaries in the territory of Maldives in the recent past.

“Maldives is a State party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Maldives firmly believes that the early entry into force of the Convention and achieving universality for the Convention would contribute effectively to the fight against the activities of mercenaries”.

III. The first meeting of experts

27. In compliance with resolutions 54/151 of the General Assembly, of 17 December 1999, and 2000/3 of the Commission on Human Rights, the Office of the High Commissioner for Human Rights organized the first of two meetings of experts on the subject of mercenaries which were convened to study the forms currently taken by mercenary activities and to propose recommendations for an updated legal definition of the concept of mercenary.

28. The meeting was held in Geneva in the last week of January 2001 and was attended by eight invited experts and by the Special Rapporteur. The detailed and extensive analysis comprised aspects relating to the evolution of mercenaries over time, the means employed by mercenaries, the most visible cases of such activities, the problems raised by the current definition of mercenary under international law and ways of strengthening the United Nations in pursuing its aim to put an end to mercenary activities throughout the world.

29. The subjects addressed included study of the background to the approach of the United Nations to the phenomenon of mercenaries; the state of international legislation on that subject, with special emphasis on article 47 of Additional Protocol I to the Geneva Conventions, regional legislation, particularly the Organization of African Unity Convention; national legislation and evaluation of the means used to implement existing legislation.

30. The analysis of the international definition of mercenaries warranted particular emphasis, also bearing in mind aspects relating to the legal framework of the issue and the difficulties of considering the various forms taken by the mercenary component. The meeting also addressed case studies such as the presence of mercenaries in Africa and the national cases of the Russian Federation and Colombia.

31. The report of the meeting is of great importance and the Special Rapporteur would like to point out that the meeting served to emphasize that mercenary activities have increased and diversified thereby exacerbating the problem of the lack of an appropriate legal framework which would not only contain in its definition the various forms taken by mercenary activity but from which punitive standards would be derived. The meeting also agreed on the need to expand the mandate of the Special Rapporteur, bearing in mind the violations of human rights resulting from such activities as illicit arms trafficking, drug trafficking, terrorist acts and other unlawful acts committed with the participation of mercenaries.

32. It should also be pointed out that the meeting of experts spent some of its time discussing the considerable increase in private security companies offering services in the military field. The experts were not opposed to the operation of such firms on the international market, recognizing, in particular, that they were efficient firms offering a wide range of services. However, the experts agreed in stating their disapproval of the participation of such firms in armed conflicts through mercenary units forming private armies. In that connection they pointed out that States had an obligation to exercise control so as to prohibit security firms from participating in armed conflicts, creating private armies, engaging in illicit arms trafficking, being involved in the illegal extraction of natural resources and, in that context, employing mercenaries.

33. Another point the Special Rapporteur would like to stress is that the experts did not feel that mercenary activities should be considered solely in connection with situations impeding self-determination. That is, of course, one of the rights that mercenaries violate, but there are other violations of human rights and international humanitarian law that should also be considered. The experts tended to see mercenary activity as a criminal act that could result in grave violations of the human rights of those affected by their actions.

34. Lastly, the group of experts accorded special importance to a systematic review of the definition of mercenary, noting that the elements in a new or broader definition of mercenary should include motive, purpose, payment, type of action and nationality. They also said that the definition should leave open the possibility of a connection between the mercenary act and other crimes, such as terrorism, arms trafficking and organized crime, in which mercenaries might be directly or indirectly involved.

35. Although the second expert meeting has not yet been convened, the Special Rapporteur believes that the General Assembly could take into account the conclusions and recommendations of the first meeting in its efforts to bring up to date its condemnation of mercenary activities and to warn the peoples of the world that tolerating such activities posed a threat to self-determination and human rights.

36. The experts did, moreover, make important contributions towards a modern legal definition of what constitutes a mercenary, leaving no doubt about the negative effects of the mercenary activities and the scope and diversity of the methods by which they operate. Certainly, none of those methods contributes to collective security, peace and universal respect for human rights.

37. One of the first positive effects of the expert meeting and its conclusions has been the adoption by the Commission on Human Rights at its recent session of resolution 2001/3 renewing the Special Rapporteur’s mandate for another three years. Although it does not endorse all details of the experts’ proposals, it does clearly expand the Rapporteur’s mandate, requesting him to examine the various forms and criminal connections that mercenary activities may have.

38. With greater support from the General Assembly and the Commission, the Special Rapporteur will thus be enabled to continue to investigate such phenomena as the role of mercenaries in internal or international armed conflicts affecting the right of peoples to self-determination and at the same time to consider other phenomena in which mercenaries have a criminal involvement, such as illicit trafficking, terrorism and the formation of mercenary teams by private security companies, which use them to intervene in the internal affairs of States with which the companies sign contracts.

39. It is to be hoped that at their second meeting the experts will carry their thinking even further. It will be particularly interesting to see if they can progress to more specific wording on, for example, the legal definition of mercenary, the rules that should govern private companies that offer security services on the international market or amendments to the provisions of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The General Assembly’s support for and encouragement of the work of the expert group are therefore highly important.

IV. Mercenary activities in Africa

40. One of the chief motives for creating the function of Special Rapporteur on the use of mercenaries was the intention of the United Nations to contribute to the effective exercise of the right of the African peoples to self-determination. Unfortunately, 14 years later, peace continues to elude many of the peoples of Africa. In many parts of the continent armed conflicts, sometimes of regional scope, are destroying the lives of thousands of Africans. Mercenaries are involved in many of these conflicts, through training contracts, direct participation in combat or involvement in the illicit trafficking that proliferates in areas affected by armed conflict.

41. The end of the cold war and of the apartheid system, which used to be major threats to the freedom of peoples who had recently achieved independence, has not, as hoped, meant an end to confrontations and conflicting interests in Africa. Instead, there has been serious social and political disintegration accompanied by armed conflict. The facts testify to serious situations, deterioration of the nation State, grave crises threatening government stability and dogged struggles for the control of rich natural resources, including petroleum and mineral deposits. Wars are being fought for control of rich diamond deposits. Diamonds are a factor in the ongoing conflicts in Angola, the Democratic Republic of the Congo, Liberia and Sierra Leone and the developing conflict in Southern Guinea.

42. In Côte d’Ivoire, hundreds died in October 2000 as a result of street violence following the presidential elections, when the leader of the military junta, General Robert Guei, suspended the vote recount that was going in favour of his opponent, Laurent Gbagbo. Hundreds more died in the Central African Republic following a failed coup attempt by the former dictator, General André Kolingba, in late May 2001.

43. Through the Revolutionary United Front in Sierra Leone, Liberia controls diamond production in Sierra Leone and is benefiting heavily from smuggling precious stones. Its smuggling activity enables the Revolutionary United Front to purchase arms, which fuel the continued conflict, despite the signing of ceasefire agreements. Liberian President Charles Taylor and Front are also financing and arming the group known as the “Rassemblement des Forces Democratiques de Guinée”, which aims at deposing Guinean President Lansansa Conté.

44. Since August 2000, the combined forces of the Liberian army and guerrilla fighters of the Revolutionary United Front have made forays to attack refugee camps in the south of Guinea in pursuit of militants in the Liberian Ultimo-K movement opposed to President Taylor. In addition to infantry, the attacks have been carried out with helicopters and heavy artillery.

45. The long series of armed conflicts on the continent involving a mercenary element shows that the exercise of the right to self-determination by the African peoples, or for that matter their control over their own natural resources or the rational utilization of them, is by no means assured.

46. The problems in Africa have only worsened, particularly in the western portion of the continent, rich in high-quality diamonds and in mineral and petroleum resources, which arouse the greed of unscrupulous politicians, merchants operating in the global market and members of criminal organizations who enrich themselves by plundering and smuggling gems and precious stones. As might be expected, mercenaries are no strangers to these criminal activities.

47. In his earlier reports, the Special Rapporteur mentioned the involvement of mercenaries in armed conflicts in Angola, Chad, Liberia, Mozambique, Namibia, Rwanda, Somalia, the Sudan, what was then Zaire, Zambia and Zimbabwe. The Special Rapporteur also discussed the political instability, nearly always accompanied by armed violence, that afflicted Benin, Botswana, Burundi, Cameroon, the Comoros, Djibouti, Lesotho, the Niger and Togo and the use of mercenaries by the racist regime of South Africa. The apartheid regime used to resort to mercenaries to destabilize political regimes considered to be socialist or unfriendly Governments and to attack the leaders of the African National Congress, an example being the assassination of Chris Hani by a Polish mercenary in April 1993.

48. The Special Rapporteur’s reports show that those conflicts revolved around the exercise of the right to self-determination of the African peoples. Today, however, the conflicts appear to revolve around a different problem namely, control of natural resources such as petroleum, uranium, magnesium, bauxite and, above all, diamonds and other precious stones. Greed to possess them is now the chief motive for destabilizing legitimate governments, arming rebel groups and inciting internal conflicts. Those who, from Europe, control the markets in precious stones, particularly gemstones and diamonds, are not uninvolved in these conflicts.

49. Liberia’s involvement in the illicit traffic in diamonds has led to the imposition of trade sanctions against that country, including those adopted by the Security Council in its resolution 1343 (2001) of 7 March 2001, which went into effect on 7 May 2001.

50. The União Nacional para a Independência Total de Angola (UNITA) has been trading diamonds for arms purchased from Eastern Europe by way of Togo, Israel (Tel Aviv) and the United Kingdom (London). With money obtained from exporting to Antwerp diamonds mined in northern Angola, UNITA buys weapons in Bulgaria. The proceeds of diamond trafficking, estimated at between 3 and 4 billion United States dollars, has enabled UNITA to build up its armed units and strengthen its combat positions by hiring mercenaries. The Special Rapporteur has pointed out on earlier occasions that there is a need to correct serious flaws in the system for monitoring the sanctions imposed on UNITA by the United Nations and the prohibition on the mining and selling of diamonds in the areas controlled by UNITA, which have been in place since 1998. Despite that prohibition, it appears that Canadian stock exchanges continue to list the stock of firms that operate diamond mines in the areas controlled by UNITA.

51. The Chairman of the Security Council Committee established pursuant to resolution 864 (1993) concerning the situation in Angola, in his letter of 10 March 2000 addressed to the President of the Security Council (S/2000/203), confirmed that his Committee had received reports that instructors in foreign weapons were working for UNITA, particularly with the mechanized units. The instructors were usually provided by the sellers of the weapons. Among the foreign military personnel collaborating with UNITA were to be found Russians, Ukrainians, Bulgarians and South Africans. Information which the international press attributes to a Western intelligence service mentions ties between UNITA leaders, the Russian mafia, Lebanese terrorist organizations and Belgian businessmen, who have allegedly set up an illicit traffic in diamonds that brings them substantial profits. The role of mercenaries in this traffic is to get the precious stones safely out of Angola and onto planes bound for Europe.

52. The Antwerp market is under strong suspicion of benefiting heavily from this illicit diamond trade, which amounts to several billion dollars annually. As mentioned above, the diamonds apparently are sent to Antwerp from Angola via Togo, Tel Aviv and London. The mercenaries involved in the traffic are said to be recruited in London. It is said that the Angolan conflict, which has worsened since 1998, when UNITA ceased to comply with the Lusaka Protocol, could not continue if the illicit traffic in diamonds were stopped. In May 2001, UNITA kidnapped 51 boys and 9 girls during an attack against the northern town of Caxito that left more than 200 people dead or missing.

53. Diamonds are also a key factor in the armed conflict in Sierra Leone. Despite the formal ceasefire, Revolutionary United Front combatants are still armed, still control important diamond-mining areas and still engage in pillaging and commit terrorist attacks — such as the renewed attack on Freetown in May 2000 — and violations of international humanitarian law. Here, again, there are foreign mercenaries involved in selling weapons to the Front and trafficking in diamonds.

54. In this situation, there should be no let-up in efforts to investigate and suppress illicit trafficking in diamonds and arms and the involvement of mercenaries in such trafficking. The Revolutionary United Front continues to use its control over diamond mines to finance its activities, which in the past few years have included the large-scale and systematic commission some of the worst crimes the world has witnessed. In March 1999, 68 tons of weapons from Ukraine, apparently destined for Burkina Faso, went in fact to Liberia and from there into the hands of rebels of the Front in Sierra Leone, in flagrant violation of the embargo imposed by the United Nations. The international community must not remain indifferent to these violations of the most basic human rights, but must investigate the possible complicity, by act or omission, of those who benefit from the illicit trafficking.

55. In that regard, it should investigate the stance of the diamond producers, diamond exchanges and associations of diamond manufacturers in relation to Angola, Liberia and Sierra Leone, as well as the firms and organizations that participate in the illicit or undercover trade in diamonds, precious stones and petroleum. It should determine their responsibility for the continuation of the armed conflicts that afflict Africa and the resulting violations of human rights and international humanitarian law. In this regard, valuable work is being done by non-governmental organizations such as Amnesty International, Doctors Without Borders and Partnership Africa Canada, Human Rights Watch, Intermón, International Action against Hunger, International Alert, Médicos del Mundo, Medicus Mundi Internationalis.

56. It is hard to believe, as some diamond manufacturers and merchants allege, that only four per cent of the world trade in rough diamonds, which amounts to seven billion dollars, is illicit in origin. In the absence of adequate, effective controls, one must assume that the percentage is actually much higher.

57. The armed conflicts affecting Angola, Liberia and Sierra Leone are not the only conflicts in the African continent. Other countries, such as Guinea, suffer from instability and the Congo is ravaged by war. Particularly noteworthy, however, is the extension of illicit traffic, particularly arms traffic, which is on the rise in all regions. Unscrupulous dealers thus benefit from the scant resources available for African development.

58. Forty-one years after the Democratic Republic of the Congo gained its independence, the civil war which besets the country and in which other African States are involved is costing the country 80 per cent of its resources. Troops from Angola, Namibia and Zimbabwe support the Government of President Joseph Kabila, while forces from Rwanda and Uganda continue to back the rebels, chiefly the Movement for the Liberation of the Congo, led by Jean-Pierre Bemba, and the Congolese Rally for Democracy, led by Adolphe Onusumba. The ceasefire agreed to in 1999 has been violated repeatedly. On the frontier with Uganda, ethnic clashes between Lendu and Hema groups continue, the latter being supported by Ugandan forces.

59. The presence of mercenaries in that country is not new. Recent studies have confirmed that Belgian, French and South African mercenaries were recruited and hired to fight side by side with the secessionist forces of Katanga led by Moise Tshombe, and that Belgian mercenaries participated in the torture and subsequent assassination of Patrice Lumumba, the first Prime Minister of the Congo. The Special Rapporteur has been studying the nature of the conflicts that affected and continue to affect Africa and proposing a global policy to safeguard the life, personal integrity, freedom and safety of individuals and ensure respect for the sovereignty of African States. The Special Rapporteur considers it advisable to continue the course mapped out in the report of the panel of experts established pursuant to Security Council resolution 1237 (1999) on the situation in Angola (S/2000/203) and by the panel of experts established by the Sanctions Committee for Sierra Leone (S/2000/756). Within this context, he stresses the need to respect the right of the peoples of Africa freely to decide their future, their political systems and the rational use that they wish to make of their resources. Otherwise, armed conflicts, together with hunger, poverty and disease, will cast their shadow over millions of Africans, threatening them like a deadly plague.

V. Current status of mercenary activities

60. Mercenary activity continues in many parts of the world and its existence is still connected with situations that affect the exercise of the right of people to self-determination, or that threaten peace and political stability or fundamental rights, such as the right to life, integrity, freedom and security. Mercenary activity continues to undermine the enjoyment of human rights of those peoples plagued by its presence. It is not an exclusively African phenomenon: mercenaries were present in the wars that took place in the territory of the former Yugoslavia and those that affected certain States that emerged from the former Union of Soviet Socialist Republics, as well as in long-term conflicts such as that taking place in Colombia and even in attempts to destabilize political regimes, such as that of Cuba.

61. In addition to the traditional ways of using mercenaries to thwart self-determination, new forms and modalities have come into being, some of which are provided with a legal façade that purports to legitimize mercenaries.

62. The expansion and modification of the modalities of mercenary activity have not led to the disappearance of the classic form, traditionally connected with attempts to thwart the exercise of a people’s right to self-determination. A number of armed conflicts that have taken place in recent years, such as those occurring in the territory of the former Yugoslavia, have been marked by the presence of traditional mercenaries operating in classic guises.

63. In recent conflicts unfolding in Africa, Asia and Latin America, there has been recourse to the recruiting and hiring of mercenaries, owing to their military experience and combat efficiency. In many cases, such persons could not be qualified as mercenaries if the requirements established by article 47 of Additional Protocol I (1977) to the 1949 Geneva Conventions were applied cumulatively and concomitantly. The Special Rapporteur nonetheless considers them mercenaries, despite the fact that the existing legal definitions are vitiated by gaps and juridical shortcomings and fail to take into account situations and activities that are mercenary in nature.

64. The Special Rapporteur considers that his mandate covers every type of mercenary activity insofar as such activity is a means of violating human rights or impeding the exercise of the right of peoples to self-determination. He also considers that the United Nations should devote more time and resources to the study and analysis of new ways of using mercenaries and that the General Assembly should reiterate that mercenary activity, whatever its form or modality, is unlawful and illegitimate and constitutes an obstacle to the enjoyment of the human rights of peoples subjected to such activities.

65. It should be pointed out that this position of the Special Rapporteur has been upheld both by the recent meeting of experts held in January 2001 and in Commission on Human Rights resolution 2001/3. Indeed the Commission considers that the presence of mercenaries should be studied and identified in connection with various criminal activities. This view strengthens the notion of the risk involved in the use of mercenaries for the perpetration of various unlawful acts and the violation of human rights and international humanitarian law, even in cases that may not be directly connected with self-determination. In accepting the suggestions made by the meeting of experts, the Commission thus strengthened the United Nations condemnation of mercenary activities.

66. Resolution 2001/3 refers also to possible connections between mercenary activities and terrorist activities. This is not a constant or systematic relationship. An analysis of cases shows that terrorist attacks are in large part carried out by militants indoctrinated and fanaticized with fundamentalist ideological concepts who view recourse to terrorism as a “legitimate” means of achieving certain objectives. Underlying many terrorist attacks is a fundamentalist conception that aims at collective intimidation by sowing fear and panic. However, there also exist terrorist acts that are simply the expression of interests of specific Governments, political organizations or entities which, in the name of the struggle against certain regimes, do not hesitate to resort to terror. Such entities resort to the use of mercenaries to commit terrorist acts.

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