Right of peoples to self-determination 2 страница

38. The Special Rapporteur has systematized the information on terrorism and identified various modalities by which a criminal connection can be made between terrorism and mercenaries. This is not an organic, ongoing relationship. In most cases, the terrorist is an ideological fanatic whose personality has been substantially altered, turning him into someone who kills indiscriminately. However, those who plan terrorism do not always trust the cause’s fanatical militants.

39. Planning an act of terror sometimes requires, depending on its scale and characteristics, sophisticated, professional know-how in the handling of military instruments (explosives, chemical compounds, weapons, aircraft, transport operations, attack strategies, etc.) which cannot be entrusted to an inexperienced militant. Therefore, planning of the crime is entrusted to a military expert who agrees to be hired. This creates a complex situation in which the agent is a mercenary by motivation and a terrorist by virtue of the nature of the criminal act he carries out.

40. This brief summary shows how the Special Rapporteur on mercenary activities identified the various modalities that can be observed in the day-to-day conduct of mercenary activity. The original resolutions of the Commission on Human Rights and the General Assembly framed his mandate in the context of upholding the principle of self-determination of peoples and against the violation of human rights in general by mercenaries. The Special Rapporteur’s investigations respected those two key criteria, but incorporated aspects and manifestations of the mercenary phenomenon that present the mercenary’s conduct as that of a multifaceted criminal. This is the standpoint from which the Special Rapporteur’s mandate has developed. The direction of his research shows that, because mercenary activity is functional to crime, it will always have to be vigorously combated.

IV. Legal definition of mercenary

41. In the course of his work, the Special Rapporteur found that one of the problems in combating mercenary activities was the absence of a clear and comprehensive legal definition of mercenary.

A. Background

42. In 1987, when the Special Rapporteur first received a mandate to examine the question of the use of mercenaries, he found that the only international provision dealing with the issue was article 47 of the 1977 Protocol I Additional to the Geneva Conventions of 1949. At that time, an ad hoc committee was working on a draft convention against the recruitment, use, financing and training of mercenaries.

43. The Special Rapporteur focused initially on reports of the presence of mercenaries in international and internal armed conflicts, but when he came to make a legal analysis of mercenary activities he found that General Assembly resolutions condemning mercenary activities and article 47 of Additional Protocol I did not provide a good enough basis for considering the phenomenon from a legal standpoint or for prosecuting mercenaries as agents of an international crime.

44. In the Special Rapporteur’s view, the definition of mercenary in article 47 of Additional Protocol I is out of step with the thinking behind his mandate. That definition denies the mercenary the rights of a combatant by not treating him as a prisoner of war. Given its nature as an instrument of international humanitarian law, the Protocol does not legislate on mercenaries themselves, but on their possible appearance in an armed conflict.

45. The Protocol does not attempt to eliminate or proscribe mercenary activities, but simply to regulate a specific situation by stipulating that a mercenary captured during armed conflict shall not be treated as a prisoner of war. The second part of article 47 of the Protocol contains a list of cumulative conditions that must be met in order to determine whether or not an individual is to be considered a mercenary for those purposes, but the Special Rapporteur regards that definition as inadequate in operational terms. Between 1970 and 2000, armed conflicts took many forms and became very complex and mercenaries operated in many different ways, leaving article 47 ineffective in combating mercenary activity.

46. The loopholes and shortcomings of the international legislation against mercenaries are compounded by the fact that the domestic legislation of most States does not criminalize mercenary activity. A mercenary or suspected mercenary may become a social outcast, but the law can take no action against him. Moreover, even when there is legislation criminalizing mercenary activity, it is often not enforced. To quote an example I cited in an earlier report to the Commission on Human Rights (E/CN.4/1999/11), the Foreign Enlistment Act of 1870 (United Kingdom of Great Britain and Northern Ireland) prohibits British citizens from becoming mercenaries and from recruiting mercenaries. However, the last case in which a person was tried under that law dates back to 1896, even though there have been reports of British citizens operating as mercenaries in various armed conflicts, particularly in Africa, over the past 30 years.

47. In 1989, by its resolution 44/34, the General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. However, the Convention entered into force only in 2001. Some of its provisions could be considered progress towards eradicating mercenary activity, since they facilitate its prosecution and inter-State cooperation in that regard, but the Convention contributes little to the definition of mercenary. Article 1, paragraph 1, repeats almost word for word the definition of mercenary found in article 47 of Additional Protocol I, while article 1, paragraph 2, refers to mercenary violence against the constitutional order or territorial integrity of a State. As a result, the Convention does not substantially improve the definition of mercenary, and the absence of a more workable definition prevents rapid, direct action in prosecuting mercenaries who commit crimes.

48. The Special Rapporteur systematically examined various cases of mercenary activity and found that mercenarism was taking on new forms, thanks to the absence of adequate international legislation. His reports referred to the emergence of private international security and military consultancy companies which recruited mercenaries for a variety of services and whose operations were facilitated by the loopholes in international legislation. Other legislative loopholes were those making it possible to change nationality to conceal one’s identity as a mercenary; those making it possible for non-resident nationals of a particular country to be paid to attack their own country by a third State or by organizations which concealed their political nature; those enabling people with two or more nationalities to exploit that fact; those enabling mercenaries to be involved in trafficking and organized crime; and lastly, those making it possible to hire experts to carry out one or more of the acts involved in a terrorist attack. What explanation is there for these forms of mercenary activity, many of which were unknown before the 1970s?

49. The situation led the Special Rapporteur, in an earlier report to the General Assembly (A/54/326), to state: “The lack of clear, comprehensive and consistent international legislation prohibiting mercenary activities is one of the chief problems detected in relation to mercenaries. The Special Rapporteur deems it necessary to study the apparent connection between the increase in mercenary activities and the obvious gaps in the international legislation currently in force. Furthermore, the increasing tendency of mercenaries to hide behind modern private companies providing security and military advice and assistance may be due to the fact that international legislation has not taken account of new forms of mercenary activity”.

50. Despite statements condemning mercenaries, their numbers are increasing, companies that recruit mercenaries are springing up and organizations with mercenary-like positions are operating. The persistence, numbers and variety of operating methods of mercenaries and the support networks and organizations that hide behind their activities show that States, particularly the smallest and weakest States, the least developed States, archipelagic States, States with rich natural resources but a fragile political structure and States faced with armed insurrection and internal conflict, are not properly protected against mercenarism in its various forms. The international legal instruments condemning mercenary activity are imperfect and incomplete: they are characterized by loopholes, imprecisions, technical deficiencies and obsolete elements which lend themselves to very ambiguous interpretations. Genuine mercenaries tend to rely on those imperfections and legal loopholes to avoid being characterized as such.

51. To sum up, the gaps in the legal provisions on mercenaries have been a permanent concern for the Special Rapporteur, who considered that they created a situation in which the international community, particularly the smallest countries, was defenceless in the face of mercenary activities. He pointed out that the serious crimes committed by mercenaries had gone unpunished and that a situation of impunity existed that was impossible to conceal.

B. Studies regarding a legal definition of mercenaries

52. In response to the Special Rapporteur’s continued appeals, the General Assembly adopted a number of resolutions authorizing a series of measures to be taken to encourage and elicit a proposed legal definition of mercenary. By its resolution 54/151 of 17 December 1999, the General Assembly:

(a) Acknowledged in various ways that the question of mercenaries should be updated and that a better legal definition should be developed;

(b) Invited Governments to make proposals towards a clearer legal definition of mercenaries;

(c) Requested the United Nations High Commissioner for Human Rights to convene expert meetings to study and update the international legislation on mercenaries and to propose recommendations. Two meetings of experts were held in 2001 and in 2002, in Geneva;

(d) Expressed support for the Special Rapporteur, so that he could continue his research and tackle the question of a legal definition of mercenary.

53. In order to fulfil this responsibility, the Special Rapporteur gathered the opinions and suggestions of States, reviewed and systematized all the information and experience accumulated since 1988 in the performance of his mandate, consulted other sources of various United Nations bodies and examined information and analyses from other special procedures. He also took part in the two meetings of experts convened by the Office of the High Commissioner for Human Rights. His analysis compared information, facts, opinions and drafts against the current state of international instruments on the question.

54. The Special Rapporteur’s checklist for a new legal definition of mercenary (see annex) highlights the following:

(a) Empirical evidence shows that because international law does not deal thoroughly enough with mercenary activity, the criminal activities of mercenaries have expanded. Those activities are rightly characterized as crimes, but even in cases where mercenaries were brought to trial for crimes such as aggravated homicide, the fact that they were mercenaries was never taken into account, even as an aggravating circumstance;

(b) Empirical evidence also shows that mercenary activities seriously violate one or more legal rights. The nature and motivation of a mercenary’s activities always threaten fundamental rights such as the right to life, physical integrity or freedom of individuals. Such activities also threaten the peace, political stability, legal order and sound use of the natural resources of peoples where mercenaries operate;

(c) Mercenary activity must be considered a crime in and of itself and be internationally prosecutable, both because it violates human rights and because, in most of its manifestations, it affects the self-determination of peoples. In this crime, the mercenary who participates directly in the commission of the crime must be considered a perpetrator with direct criminal responsibility. It must also be borne in mind that mercenary activity is a complex crime in which criminal responsibility falls upon those who recruited, employed, trained and financed the mercenary or mercenaries and upon those who, while they may not have recruited, employed, trained or financed the mercenary, nevertheless planned and ordered his criminal activity;

(d) Where mercenary activity is proved to have occurred because of a decision by a third Power which uses mercenaries to intervene in another State, cause it material harm, generate political instability or commit any kind of attack on individuals or physical installations, that activity must be considered a covert crime. Hiring mercenaries in order to avoid acting directly cannot be considered a mitigating factor, as international law tolerates neither direct nor indirect intervention. States which use mercenaries to attack another State or to commit unlawful acts against persons must be punished;

(e) Mercenaries themselves use their professional know-how and sell it for the commission of a crime which, depending on the type of mercenary activity involved, affects the self-determination, peace, political stability and natural resources of countries where it takes place or violates human rights, primarily the right to life;

(f) The term “mercenary” signifies, and applies to, persons with military training who offer paid professional services to take part in criminal activity. Mercenary activity has usually involved intervention in an armed conflict in a country other than the mercenary’s own. That is why, traditionally, a connection has been made between mercenary activity and self-determination. However, that is not always the case and intervention is only one of a number of different possible types of criminal act;

(g) The presence of mercenaries has been noted in such activities as arms and drug trafficking, illicit trafficking in general, terrorism, destabilization of legitimate governments, acts related to forcible control of valuable natural resources, selective assassination, abduction and other organized criminal activities. What is involved, therefore, is an activity that can take multiple forms, all of them criminal, where the highly skilled professionalism of the agent is what is prized and paid for; that is why persons with military training are preferred. The legal definition of mercenary will thus have to be sufficiently broad to cover the various forms of criminality that mercenary activities comprise;

(h) The new legal definition of mercenary should include the use of mercenaries by private companies offering military security services internationally, which employ them in activities generally linked to internal armed conflicts or to undermine the self-determination of peoples. Accordingly, there would need to be an international legal method of regulating and supervising these companies, so as to prohibit them from recruiting and employing mercenaries in any type of intervention that would mean their direct participation in military operations in the context of international or internal armed conflicts;

(i) The fact that it may be a government which hires mercenaries, or hires companies which in turn recruit mercenaries, for its own defence and political purposes within its country or to bolster positions in armed conflicts does not change the nature of the act or its illegitimacy. The principle that should be adopted in elaborating the new legal definition of mercenary is that the State is not authorized to recruit and employ mercenaries. International law and the constitutional law of each State assign the tasks of security, public order and defence to the regular military and police forces. Mercenaries cannot be included within the scope of these tasks because they are considered to maintain ties to criminal operators and activities. They are used to do what regular army troops cannot do because that would exceed the powers of a legal authority responsible for the public order and security of a country;

(j) The proposal for a new legal definition of mercenary should also take into account the fact that the current norms of international and customary law referring to mercenaries and their activities condemn mercenary acts in the broad sense of paid military services that are not subject to the humanitarian norms applicable in armed conflicts — services which usually lead to the commission of war crimes and human rights violations;

(k) The provisions in force include a requirement that a mercenary be a “foreigner” in the affected country, along with other requirements for defining a person involved in such acts as a mercenary. Nevertheless, accumulated experience shows that this requirement is not essential to the identity of a mercenary act. What is more, it has been seen that in a number of armed conflicts, nationals of the affected country have been used for an attack or illegal action planned from outside the country in order to conceal their status as mercenaries. This requirement of being a foreigner should be reviewed, so that the definition rests mainly on the nature and purpose of the unlawful act to which an agent is linked by means of a payment. To the question whether a national who attacks his own country and commits crimes can be defined as a mercenary, the reply would need to be affirmative if that national is linked to another State or organization which has paid him to intervene and commit crimes against his own country. Such a paid criminal act would be a mercenary act because of its nature and purpose.

55. The meetings of international experts convened by the Office of the High Commissioner for Human Rights have been particularly important for the elaboration of a new legal definition of mercenary. Their reports contain valuable discussions and updated information which the Special Rapporteur has utilized whenever he has deemed it personally useful and enriching in relation to the fulfilment of his mandate to propose a new legal definition of mercenary. Nevertheless, the two reports contain a wealth of doctrinal and conceptual insights that should be taken into account by the relevant United Nations bodies. In any event, it must be pointed out that the reports of the two meetings, while differing in some respects, nonetheless agree on the necessity of improving the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which is now in force, by making changes to the legal definition of mercenary.

56. It should be noted that the first meeting of experts did an excellent job of providing updated information on the presence of mercenaries in armed conflicts, noting their diversification and the dangers they pose. At that meeting, held from 29 January to 2 February 2001, the experts pointed to the need for “an appropriate legal framework”. They concluded specifically that: “There are no effective punitive norms for ‘old’ mercenary activities and new forms of mercenary activities fall outside existing frameworks. Few national laws make new forms of mercenarism an offence and international law is still deficient in this respect”.

57. Among the report’s recommendations is one in paragraph 113 which is reproduced here because of its importance: “Although the Statute of the International Criminal Court does not refer to mercenaries, the group [of experts] recommends that further consideration should be given to the extent to which mercenarism could be considered an aggravating circumstance in the event of liability for genocide, crimes against humanity and war crimes”.

58. This recommendation is of the greatest importance, because it proposes a concept related to the seriousness of mercenary conduct, to the point where it would be considered an aggravating circumstance in crimes falling under the jurisdiction of the International Criminal Court. In any event, given the current state of legislation relating to mercenaries, the connection that the experts propose in this regard cannot be made — an argument which also militates in favour of a new legal definition of mercenary and its inclusion in the Convention.

59. For its part, the second meeting of experts addressed the topic of the legal definition of mercenary and also expressed the need to amend the definition in article 1 of the 1989 Convention. Indeed, paragraph 43 of the report of the second meeting of experts states: “Noting that the current definition in article 1 of the 1989 Convention was unworkable and deficient as a basis for effectively criminalizing mercenary activity, and in accordance with the mandate entrusted to it by General Assembly resolution 56/232, the experts saw fit to examine the question of redefining mercenaries. The experts concluded that, in order to increase the effectiveness of the legal framework against mercenary activities, it was necessary to amend the Convention” (E/CN.4/2003/4, para. 43).

60. To all the concepts set forth, the Special Rapporteur has added others, which have also been taken into account in the proposal for a new legal definition of mercenary. The first is that the concept of a mercenary should be inclusive; that is, it should cover the participation of mercenaries in both international and internal armed conflicts. The second (going well beyond article 47 of Additional Protocol I) is that the definition should include both the mercenary as an individual agent and mercenarism as a concept related to the responsibility of the State and organizations concerned in the planning and execution of mercenary acts. Third, mercenary activity should be considered not only in relation to the self-determination of peoples but also as encompassing a broad range of actions, including the destabilization of constitutional governments, various kinds of illicit trafficking, terrorism and violations of fundamental rights.

C. Proposed legal definition

61. The preceding paragraphs describe the long and painstaking study that the elaboration of a proposed legal definition of mercenary has entailed. In fact, the main basis for the proposal is the consensus that a new definition should be established, that it should take into account or be applicable to all forms of mercenary activity, that it should avoid a systematic accumulation of competing requirements, which would always prevent the identification of a mercenary, and, lastly, that the change should be proposed as an amendment to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. In addition, the proposal should affect neither the status nor the treatment of the obligations of mercenaries and of the parties to a conflict deriving from international humanitarian law; in other words, the amendment should be debated and approved within the text of the Convention, without prejudice to article 47 of Additional Protocol I to the 1949 Geneva Conventions.

62. In presenting the proposal, the Special Rapporteur refers first of all to the definition put forward during the second meeting of experts. While consensus was not achieved on that definition and the Special Rapporteur himself does not endorse it, it constitutes important progress with respect to the current situation. The Special Rapporteur disagrees with the elimination of the reference to private material gain and the maintenance of the blanket requirement that the mercenary be a foreigner in the country where he is sent to participate in an internal armed conflict or to overthrow or undermine the constitutional order of a State. Articles 2 and 3, as amended, are also important from the standpoint of the connections or criminal offences of mercenaries operating under contracts with private military security companies.

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

63. 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, entered into force on 20 October 2001 when the twenty-second instrument of ratification or accession was deposited with the Secretary-General of the United Nations. There are now 24 States parties to the Convention. Costa Rica deposited its instrument of accession on 20 September 2001, Mali on 12 April 2002 and Belgium on 31 May 2002.

64. Despite the objections to the definition contained in article 1, the Special Rapporteur believes that the entry into force of the Convention is a positive development, one that will make it easier to improve this important instrument by the most appropriate means. The Convention will 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. These are all positive developments.

65. As noted above, 24 States have completed the formal process of expressing their willingness to be bound by the International Convention. Those States are: Azerbaijan, Barbados, Belarus, Belgium, Cameroon, Costa Rica, Croatia, Cyprus, Georgia, Italy, Libyan Arab Jamahiriya, Maldives, Mali, 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.

66. From the standpoint of enhancing effectiveness in the fight against mercenary activities, the Special Rapporteur wishes to point out that it is in the interest of States to consider ratifying or acceding to the International Convention. This is because the growth of mercenary activities around the world and the extent of the unlawful acts in which mercenaries are involved require that the international instrument designed to combat such activities be supported by a large number of States. Moreover, if the Convention has to be amended in order to increase its effectiveness in prosecuting international crimes and unlawful acts attributable to mercenaries, a large number of States parties should be involved in the proposals and mechanisms to be implemented.

VI. Conclusions

67. The definition proposed by the Special Rapporteur reflects the multipurpose criminal characteristics of mercenary activity. As set forth in the annex to this report, it is linked to participation in armed conflicts and attacks against the self-determination of peoples. It includes other illicit activities such as trafficking in persons and migrant trafficking in arms and ammunition, drug trafficking, terrorism, destabilization of legitimate Governments, taking forcible control of valuable natural resources and organized crimes such as abduction, robbery and assault. The definition considers mercenaries who participate directly in the crime to be criminally responsible and extends such responsibility to anyone who recruits, finances, employs or trains mercenaries to participate in an activity defined as criminal.

68. The Special Rapporteur suggests that private companies offering military security services internationally should be regulated and placed under international supervision. They should be warned, however, that recruiting mercenaries who commit the acts set forth in the amended International Convention amounts to a violation of international law and will entail prosecution of both the mercenary and the agency that hires and employs him.

69. The Special Rapporteur believes he has thus fulfilled the task assigned to him by the General Assembly. He takes this occasion to suggest that this report should be brought to the attention of the States parties to the 1989 Convention and the United Nations special mechanisms responsible for studying and evaluating the international instruments adopted by the organization.

70. The Special Rapporteur’s 16-year mandate to study the use of mercenaries has enabled him to accumulate and systematize information leading to the conclusion that mercenaries are multipurpose professionals who provide their assistance for activities not permitted by international law, such as activities affecting self-determination; participation in armed conflicts, where services are offered in favour of one of the parties to the conflict; activities destabilizing legitimate governments; or activities entailing offences that violate human rights.

71. Mercenary activity signifies the commission of a crime, meaning that whatever form it takes, the law cannot accept or condone the existence of mercenaries. Mercenary activity must be prohibited and made subject to criminal penalties, whether it results from recruitment on an individual basis or recruitment by organizations, groups, private security companies or States that hire mercenaries for use in criminal activities.

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