Right of peoples to self-determination 1 страница

Fifty-eighth session

  * A/58/50/Rev.1 and Corr.1.

Item 118 of the preliminary list*

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

The Secretary-General has the honour to transmit to the members of the General Assembly, in accordance with General Assembly resolution 57/196 of 18 December 2002, the report prepared by Mr. Enrique Bernales Ballesteros (Peru), Special Rapporteur on the question of the use of mercenaries.

Summary

General Assembly resolution 57/196 of 18 December 2002 requested the Special Rapporteur, inter alia, to continue working to propose a clearer definition of mercenaries, including clear nationality criteria, and to make suggestions on the procedure to be followed for international adoption of a new definition. The Special Rapporteur devotes the present report to fulfilling that request. After analysing in section III the evolution of mercenary activities from the establishment of the mandate in 1987 to the present day, the Special Rapporteur devotes section IV to the question of the legal definition of mercenary, making reference to his studies on the subject, the proposals received and the outcomes of the expert meetings held in Geneva in 2001 and 2002. He notes that the cumulative nature of the requirements stipulated in the definition, the possibility of evading those requirements by fraud in law and, in general, the definition’s imprecision, technical deficiencies, obsolete elements and legal loopholes meant that many mercenaries who had committed serious offences were not characterized as such and ultimately escaped any kind of punishment. That created a situation where the international community was defenceless against mercenaries, particularly those active in the smallest countries and archipelagic countries. The Special Rapporteur concludes that the definition of mercenary contained in article 1 of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries is very difficult to apply in practice and that, if mercenary activities are to be prevented, eradicated and punished, the definition must be modified by amending the Convention. The legal definition of mercenary proposed by the Special Rapporteur appears in the annex to this report. The alternative definition he proposes considers the participation of mercenaries in international and internal armed conflicts and in concerted acts of violence; is not limited to the mercenary as an individual agent but includes mercenarism as a concept related to the responsibility of the State and other organizations and individuals; and covers illicit acts such as trafficking in persons, arms and drug trafficking and other illicit trafficking, terrorism, international organized crime, abduction, etc., as well as actions to destabilize legitimate governments and actions aimed at taking forcible control of valuable natural resources. The Special Rapporteur requests the General Assembly to bring his proposal to the attention of the States parties to the Convention.

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

Contents

		Paragraphs	Page
I. Introduction.........................................................	1–8
II. Activities of the Special Rapporteur	9–10
A. Implementation of the programme of activities
B. Correspondence..................................................
III. Evolution of mercenary activities.........................................	11–40
IV. Legal definition of mercenary...........................................	41–62
A. Background.....................................................	42–51
B. Studies regarding a legal definition of mercenaries	52–60
C. Proposed legal definition...........................................	61–62
V. Current status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries	63–66
VI. Conclusions.........................................................	67–73
VII. Recommendations....................................................
Annex
Proposed amendments to the definition of mercenary contained in the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries

I. Introduction

1. During its fifty-seventh session, the General Assembly adopted resolution 57/196 of 18 December 2002 by which it, inter alia, urged States to take the necessary steps against the activities of mercenaries.

2. The General Assembly decided to consider at its fifty-eighth 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 to it at that session, with specific recommendations, his findings on the use of mercenaries to undermine the right of peoples to self-determination. It also requested him to continue taking into account in the discharge of his mandate the fact that mercenary activities continue to occur in many parts of the world and are taking on new forms. It further requested him to continue working to propose a clearer definition of mercenaries, including clear nationality criteria, based on his findings, the proposals of States and the outcomes of the meetings of experts, and to make suggestions on the procedure to be followed for international adoption of a new definition.

3. The General Assembly called upon States to investigate the possibility of mercenary involvement wherever criminal acts of a terrorist nature occur and to bring to trial those found responsible or to consider their extradition, if so requested, in accordance with domestic law and applicable bilateral or international treaties. It stressed the entry into force of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (resolution 44/34, annex) and called upon States that had not yet done so to consider signing, acceding to or ratifying it, as a matter of priority.

4. The General Assembly requested the Office of the United Nations High Commissioner for Human Rights, as a matter of priority, to publicize the adverse effects of the activities of mercenaries on the right of peoples to self-determination and, when requested and where necessary, to render advisory services to States that are affected by the activities of mercenaries.

5. The Commission on Human Rights, for its part, adopted resolution 2003/2 on 14 April 2003, during its fifty-ninth session. It recognized that armed conflicts, terrorism, arms trafficking and covert operations by third Powers, inter alia, encourage the demand for mercenaries on the global market. It 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. It also invited States to investigate the possibility of mercenary involvement in criminal acts of a terrorist nature.

6. The Commission requested all States to exercise the utmost vigilance against any kind of mercenary activity promoted by private companies offering international military consultancy and security services, as well as to impose a ban on such companies’ intervening in armed conflicts or actions to destabilize constitutional regimes. It requested the Special Rapporteur to consult States and 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 the Commission at its sixtieth session.

7. It requested the Special Rapporteur to continue taking into account that mercenary activities are continuing to occur in many parts of the work and are taking on new forms.

8. Accordingly, and pursuant to resolution 57/196, the Special Rapporteur has the honour to submit this report to the General Assembly for consideration at its fifty-eighth session.

II. Activities of the Special Rapporteur

A. Implementation of the programme of activities

9. The Special Rapporteur travelled to Geneva from 19 to 24 March 2003 to attend the fifty-ninth session of the Commission on Human Rights and from 23 to 27 June 2003 to attend the tenth meeting of special rapporteurs/representatives, experts and chairpersons of working groups of the Commission on Human Rights. While in Geneva, the Special Rapporteur held consultations with representatives of various States and met with members of non-governmental organizations. He also held working meetings with the new Special Procedures Branch of the Office of the United Nations High Commissioner for Human Rights.

B. Correspondence

10. By letter dated 23 May 2002, the Permanent Mission of the United States of America to the United Nations Office at Geneva informed the Special Rapporteur that its Government was renewing its invitation to him to visit that country and was proposing that the visit take place at the end of January 2003. The Special Rapporteur reiterates his gratitude for the invitation from the Government of the United States of America. At the same time, he regrets the circumstances that have thus far prevented the two sides from determining when they would both have time available so that he can schedule the visit. According to preliminary conversations, the Special Rapporteur would use the visit to obtain information on matters related to his mandate, such as the connection between mercenary activities and terrorism and between mercenarism and trafficking in persons, arms and drugs; the use of mercenaries by organizations of exiles seeking to overthrow the governments of their own countries; and private military security companies. The Special Rapporteur would also like to obtain detailed information on some Florida-based Cuban-American organizations that the Government of Cuba has repeatedly denounced for using mercenaries to carry out activities contrary to international law. For the past five years, he has been looking into the case of the attacks on tourist facilities in Cuba between 1996 and 1998. All the evidence gathered makes it necessary to obtain information on those organizations. Indefinite postponement of his visit would force the Special Rapporteur to close his report in its present state for submission to the Commission on Human Rights.

III. Evolution of mercenary activities

11. Following repeated extensions of his mandate, this is the last report that the Special Rapporteur will submit to the General Assembly. The present section will discuss the evolution of mercenary activities over the duration of his mandate.

12. The three issues with which he first dealt were: problems created by the policy of apartheid pursued by the then Government of South Africa; the armed conflict in Angola; and the armed conflict in Nicaragua. In all three cases, the presence of mercenaries was undeniable, and relevant information was required to enable the United Nations to take a firm position against the presence of mercenary agents.

13. The armed conflict in Angola arose after the country’s independence in 1975 and was a result of its former colonial domination. The process of organizing a sovereign, democratic Angola committed to the sound use of its natural resources was interrupted by the appearance of the União Nacional para a Independência Total de Angola (UNITA), a rebel movement which, under the leadership of Jonas Savimbi, refused to recognize the democratic Government of President Eduardo dos Santos and managed to gain a foothold in certain key areas of Angolan territory.

14. The armed conflict in Angola was long and bloody. The Special Rapporteur was able to observe the tragic situation in that country when he visited it on mission in 1988. He witnessed at first hand both the violence of the conflict and the presence of entire battalions of mercenaries from South Africa who were fighting alongside UNITA and thereby aggravating the conflict. There is no doubt that apartheid prompted the then rulers of South Africa to pursue expansionist policies, arming military units of mercenaries to intervene in the Angolan conflict in order to impose UNITA on the Government of Angola. The conflict continued throughout the 1990s, even though the parties signed a number of peace agreements under United Nations auspices. The Special Rapporteur monitored the conflict and found that one reason for its continuation was the presence of mercenaries. The conflict has now ended, there are no mercenaries in Angola and there is reason to hope that peace in that country will contribute to political stability and economic progress.

15. As indicated in the preceding paragraphs, apartheid promoted the presence of mercenaries in Angola, but its destabilizing activity affected all southern Africa. From the beginning of his mandate, the Special Rapporteur received complaints about the policy of systematic violation of human rights that apartheid was imposing in South Africa, particularly against the African National Congress (ANC), whose leaders were persecuted outside South African territory and, in more than one case, murdered by mercenaries recruited by the apartheid regime. The Special Rapporteur described in his reports apartheid’s adverse effects on the self-determination and human rights of African peoples and how it was the source of mercenary activities throughout much of Africa.

16. Years later, in the 1990s, South Africa freed itself from that regime, replacing it with a multiracial democracy that respected its various ethnic communities and was firmly committed to protecting human rights. In that new context, the Special Rapporteur visited South Africa in 1997, where he travelled to various towns, talked to the democratic authorities and made contact with the Truth Commission, intellectuals and victims of apartheid.

17. Today, South Africa is a solid, progressive democracy. Its position condemning mercenary activities is firm and it even has a law prohibiting any kind of mercenary activity, having moved ahead in the regulation and supervision of private companies that offer security services internationally so as to prevent them from employing mercenaries and intervening in armed conflicts in other countries.

18. The Special Rapporteur also had to concern himself with the ongoing armed conflict in Nicaragua. The international community was following that conflict closely and was outraged at situations such as the Iran-Contra scandal, which revealed the involvement of agents of the United States Central Intelligence Agency (CIA) in covert operations in support of the contras. The Special Rapporteur visited Nicaragua on mission in 1989, where he received numerous complaints about the presence of mercenaries alongside the contras. Covert operations were undermining the political stability of the country and prolonging an armed conflict that cost the lives of several thousand Nicaraguans. The development of that conflict and the need to obtain more information made it necessary for the Special Rapporteur to visit the United States of America in 1989, where he was able to obtain valuable additional information, especially on so-called covert operations, through the cooperation of the United States authorities, members of Congress, staff, members of non-governmental human rights organizations and university researchers. The Central American peace agreements, particularly the Esquipulas II Agreement, finally created a political climate in which Nicaragua could enjoy greater political stability.

19. In the early 1990s, the Special Rapporteur had to make a visit to Maldives, where a coup d’état, carried out by an expedition of mercenaries recruited, trained and financed in Sri Lanka and made up of members of the Tamil ethnic group, most of them young men aged between 18 and 22, had been staged by elements seeking to take control of the country and refusing to recognize its lawfully constituted authorities. The aggression failed, but the Special Rapporteur’s mission enabled him to report to the General Assembly on two risk situations. The first was the tremendous vulnerability of small and archipelagic countries to attacks, generally from abroad, which could affect their right to self-determination and in which there was a mercenary connection with the aggression.

20. The other risk situation was that, to carry out expansionist policies or achieve power ambitions, any State, organization or enterprising or affluent politician could assemble a mercenary army relatively easily, calling on inexperienced young men who, for a minimum wage, could become involved in pitiful ventures. This was precisely the situation that affected the sovereignty of Maldives for several days, in which young Tamils, some of them no more than teenagers, were deployed as mercenaries.

21. In the 1990s, the Special Rapporteur’s work acquired an unusual dimension. On the one hand, the break-up of the Soviet Union and the creation of sovereign, independent States on its former territory gave rise to frictions among some of those States as a result of border disputes, national rivalries and other reasons. In that context, mercenaries appeared who went from one place to another offering their military services. The Special Rapporteur’s reports pointed to the emergence of new forms of mercenary activity, such as “weekend wars”, the transformation to mercenaries of soldiers who deserted from their national armies, arms trafficking between one republic and another and the carrying out of terrorist acts by mercenaries. Although some conflicts were resolved and others disappeared, armed tensions persist.

22. The Special Rapporteur also dealt with the armed conflict in Afghanistan. That conflict involved mercenaries and there was a discussion about the presence of mujahedin, known as religious or Muslim fighters, who were fighting for a cause and not for financial reasons. The Special Rapporteur drew attention to the problem, stating that while those who volunteered to defend a national cause or a faith could in no way be accused of being mercenaries, the fact that some might be acting as mercenaries could not be ignored. In any event, long before 11 September 2001, the Special Rapporteur warned in his reports about the terrorist nature of some of the Taliban’s activities in Afghanistan and the danger posed in that context by the protection given to terrorist organizations.

23. Also in the 1990s, the Special Rapporteur had to deal with the armed conflicts in the territories of the former Yugoslavia, involving Croatia, the Federal Republic of Yugoslavia and Bosnia and Herzegovina. Given the reports received of the presence on all fronts of mercenaries of the most diverse nationalities, the Special Rapporteur visited the region in September 1994 and saw the seriousness of the conflicts raging there.

24. In those conflicts, the Special Rapporteur established some criteria as to the operating modalities of mercenaries, for instance, that of the young men from South American countries who rapidly became naturalized thanks to distant direct relatives who had been nationals of one or other country involved in the conflict, or again that of the mujahedin, about whom it was suspected, in more than one case, that they had been armed and sent by third Powers to fight, in the guise of volunteers, in certain parts of the Balkans.

25. Africa was an ongoing concern throughout the Special Rapporteur’s mandate, first, because of the absolute need to defend self-determination in countries newly emerged from colonial domination and often torn by internal conflicts inherited from that period and, second, because States from outside the region and powerful economic interests have taken advantage of the political inexperience and instability that usually accompany the birth of independent States to foster tensions and armed conflicts, in the midst of which they have introduced unfair contracts and reimposed strict controls on the exploration and exploitation of natural resources, especially precious stones.

26. Conflicts gradually broke out in various subregions of the African continent, causing the loss of thousands of human lives and an objective situation of humanitarian disaster. Mercenaries were present in most of the countries affected by these armed conflicts. What is more, the Special Rapporteur indicated in his reports in the 1990s that, while in the wars of independence from colonial domination most mercenaries came from Europe, these new conflicts were characterized by the presence of young Africans from neighbouring countries or different ethnic groups, fighting as mercenaries in return for minimum wages.

27. In support of the reports of other thematic and country rapporteurs and the working groups set up on various occasions in the United Nations to find solutions to Africa’s problems, the Special Rapporteur drew attention repeatedly to the need both to end the presence of mercenaries in Africa and to put a stop to the presence of private military security companies, which were recruiting mercenaries and were linked throughout the decade to lucrative business interests.

28. The preceding paragraph mentioned private companies that offer military security services internationally and are involved in the recruitment and employment of mercenaries. The Special Rapporteur had to take up this problem, even though originally it did not arise in connection with the principle of self-determination. He did so because of the rapid growth of such companies and their establishment as power centres in the international market, but he was dealing with issues and matters that had until then been subject to the sovereignty of States and possibly to the adoption of policies on military matters, either by the United Nations or by regional organizations. The Special Rapporteur undertook a mission to the United Kingdom of Great Britain and Northern Ireland in January 1999 to study the issue in depth, given the existence of such companies registered there and the interest of both the British Government and concerned British scholars and experts in devising measures that would permit some kind of oversight of those companies.

29. These companies are modern, multipurpose, transnational companies, which do not hesitate to recruit mercenaries for certain of the activities they offer. They tend to be highly efficient in matters of military science, but they also tend to have few scruples about recruiting mercenaries for difficult, highly dangerous mission in zones and territories where violence and armed conflicts are taking place.

30. At the Special Rapporteur’s suggestion, the issue of military security companies was taken up at the two meetings of experts on mercenaries held in Geneva in 2001 and 2002. The conclusion arrived at by the Special Rapporteur in this regard is that such companies need not be banned, but that domestic and international law must deal with the issue so that there are oversight, regulation and monitoring mechanisms that clearly differentiate military consultancy services from participation in armed conflicts and from anything that could be considered intervention in matters of public order and security that are the exclusive responsibility of the State.

31. In Latin America, too, there were some problems that required the Special Rapporteur’s attention. The 1980s saw armed conflicts in three Central American countries: El Salvador, Guatemala and Nicaragua. Cuba suffered attacks on its territory by outside groups seeking to destabilize its Government. In Colombia, long-standing violence prevented the peace agreements signed in 1990 and 1992 from extending to all the rebel groups. In Peru, a Maoist group, the self-styled Communist Party of Peru, or Sendero Luminoso, had plunged the country into a virulent armed conflict that in two decades caused some 30,000 deaths. Another insurgent group in that country was the Movimiento Revolucionario Tupac Amaru (MRTA). Panama, for its part, had to contend with the corrupt dictatorship of General Noriega, while Suriname saw the emergence of an armed group seeking to create a situation of guerrilla warfare.

32. Mercenaries were present in some of those conflicts. The Special Rapporteur received reports on a number of occasions about the presence of mercenaries in the Colombian armed conflict, mainly connected with the drug cartels but also with self-defence paramilitary groups and even private oil companies which, according to the reports received, contracted with private security companies that recruited mercenaries to protect their camps and facilities in jungle areas. The presence of mercenaries was also mentioned in Peru, in connection with some activities by gangs of drug traffickers and paramilitaries who operated in association with the National Intelligence Service (SIN) during the government of Alberto Fujimori.

33. The Special Rapporteur received complaints on a number of occasions about mercenary activities, some directly targeting the sovereignty and self-determination of peoples. Many of these complaints referred to specific acts of sabotage, attempts on people’s lives, assassination attempts, bombings of military facilities and hotels and, generally, actions designed to disrupt normal, everyday life. In Cuba, a series of attacks on tourist facilities began in 1997, at a time when the country’s economy was giving priority to investments in tourism as a means of obtaining foreign exchange in the context of the United States embargo against Cuba. When President Fidel Castro attended the Tenth Ibero-American Summit in Panama, evidence emerged of a plot against his life.

34. The Special Rapporteur undertook an official mission to Cuba in 1999 to further his investigation into the death of an Italian tourist at a time when Havana was the target of attacks on tourist facilities. During his visit, he made an exhaustive study of the reported events. He was even able to visit the prison where the individuals who took part in the attack that caused the Italian tourist’s death are being detained. He visited them in prison and was able to ascertain their motive, their prior contacts, their training, their connections and how the attack was carried out. There is no doubt that they were mercenaries of Central American origin who had been recruited to carry out crimes in Cuba. The Special Rapporteur made a note of that situation, while also advocating the right to life of two of the detainees who had been sentenced to death. Fortunately, so far their death sentence has not been carried out and it is hoped that it will ultimately be commuted.

35. To continue his investigation of the complaints made by the Cuban Government, the Special Rapporteur undertook official missions to El Salvador and Panama. In El Salvador, he investigated the existence of cells organized by Luis Posada Carriles, an agent of Cuban origin, which were very active in planning attacks against the Cuban Government and which had allegedly planned the attacks on tourist facilities in Havana and other cities. Posada Carriles and three other Cubans from Florida were arrested in Panama, accused of participating in the plot against the life of President Castro.

36. The Special Rapporteur submitted reports to the General Assembly and the Commission on Human Rights in 2002 and March 2003 and gave his views on the responsibility of Posada Carriles and the other detainees. He hopes to be able to travel to the United States of America in order to, inter alia, complete his investigations and hear the views of organizations of Cubans living in that country, particularly in Florida. Members of those organizations are alleged to have planned and financed the attacks on Cuban territory.

37. Another issue addressed in the Special Rapporteur’s reports was terrorism. Many of the complaints received by him concerned terrorist attacks committed by mercenaries, in other words, ideologically motivated acts of violence and criminal acts which provoke a collective reaction of terror. Those complaints referred to mercenaries as agents entrusted with carrying out terrorist attacks on behalf of either a State or an organization with a clearly political or religious ideology.

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