Right of peoples to self-determination 3 страница

72. During his mandate, the Special Rapporteur has observed that the legal instruments available to define mercenary acts and characterize mercenary conduct are insufficient and in some aspects deficient or have serious gaps.

73. The Special Rapporteur also believes that this thematic mandate should be maintained, but adapted to cover all aspects in which, according to current investigations, mercenary activity is found.

VII. Recommendations

74. Based on the foregoing conclusions, the Special Rapporteur recommends the following:

(a) The General Assembly, on reaffirming its condemnation of mercenary activities, should prohibit any form of activity that encourages the presence of mercenaries and should suggest that the Commission on Human Rights extend the mandate on mercenary activities, whatever their form, since mercenary activity is criminal conduct that affects the self-determination of peoples and serves foreign interests that pose a threat to life and to the natural resources, political stability and territorial integrity of the affected countries and since the presence of mercenaries is linked to violations of human rights.

(b) The General Assembly should circulate among the States parties to the Convention the proposed new legal definition of mercenary, which would replace existing articles 1, 2 and 3 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and suggest that they study it and adopt a position thereon.

(c) The States parties to the Convention and any other State Member of the United Nations interested in learning the nature and scope of an amendment to the text of the International Convention as proposed by the Special Rapporteur should maintain cooperative relations with the Special Rapporteur until the expiration of his mandate in July 2004.

(d) The General Assembly should arrange for the distribution of the proposed new legal definition of mercenary to enable the Special Rapporteur to gather comments and observations and systematize them as additional contributions to the discussion preceding the review and acceptance of amendments to the International Convention.

Annex

Proposed amendments to the definition of mercenary contained in the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries

The Special Rapporteur proposes the following amendments to the first three articles of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries:

Article 1

For the purposes of the present Convention,

1. A mercenary is any person who:

(a) Is specially recruited locally or abroad in order to participate in an armed conflict or in any of the crimes set forth in article 3 of this Convention;

(b) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict or of the country in which the crime is committed. An exception is made for a national of the country affected by the crime, when the national is hired to commit the crime in his country of nationality and uses his status as national to conceal the fact that he is being used as a mercenary by the State or organization that hires him. Nationality obtained fraudulently is excluded;

(c) Is motivated to participate in an armed conflict by profit or the desire for private gain;

(d) Does not form part of the regular armed forces or police forces at whose side the person fights or of the State in whose territory the concerted act of violence is perpetrated. Similarly, has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

2. A mercenary is also any person who, in any other situation:

(a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:

(i) Overthrowing a government or otherwise undermining the constitutional, legal, economic or financial order or the valuable natural resources of a State; or

(ii) Undermining the territorial integrity and basic territorial infrastructure of a State;

(iii) Committing an attack against the life, integrity or security of persons or committing terrorist acts;

(iv) Denying self-determination or maintaining racist regimes or foreign occupation;

(b) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict or of the country in which the crime is committed. An exception is made for a national of the country affected by the crime, when the national is hired to commit the crime in his country of nationality and uses his status as national to conceal the fact that he is being used as a mercenary by the State or organization that hires him. Nationality obtained fraudulently is excluded;

(c) Is motivated to participate in an armed conflict by profit or the desire for private gain;

(d) Does not form part of the regular armed forces or police forces at whose side the person fights or of the State in whose territory the concerted act of violence is perpetrated. Similarly, has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

Article 2

Any person who recruits, uses, finances or trains mercenaries, as defined in article 1 of the present Convention, commits an offence for the purposes of the Convention.

Article 3

1. A mercenary, as defined in article 1 of this Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an international crime for the purposes of the Convention. A mercenary who participates in the following acts also commits an internationally prosecutable offence: destabilization of legitimate governments, terrorism, trafficking in persons, drugs and arms and any other illicit trafficking, sabotage, selective assassination, transnational organized crime, forcible control of valuable natural resources and unlawful possession of nuclear or bacteriological materials.

2. Nothing in this article limits the scope of application of article 4 of this Convention.

3. Where a person is convicted of an offence under article 1 of the Convention, any dominant motive of the perpetrator should be taken into account when sentencing the offender.

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