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UNITED
NATIONS
General Assembly
Distr.
GENERAL
A/50/390
29 August 1995
ENGLISH
ORIGINAL: ENGLISH/FRENCH/
SPANISH
Fiftieth session
Item 106 of the provisional agenda*
RIGHT OF PEOPLES TO SELF-DETERMINATION
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 49/150 of
23 December 1994, the report prepared by Mr. Enrique Bernales Ballesteros
(Peru), Special Rapporteur on the question of the use of mercenaries.
________________________
* A/50/150.
95-26486 (E) 180995 220995/...
*9526486*
Annex
Report on the question of the use of mercenaries as a means of
violating human rights and impeding the exercise of the right
of peoples to self-determination, submitted by the Special
Rapporteur of the Commission on Human Rights
CONTENTS
Paragraphs Page
I. INTRODUCTION .........................................1 - 33
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR .................4 - 153
A. Implementation of the programme of activities ....4 - 63
B. Correspondence ...................................7 - 154
III. LOCATION OF MERCENARY ACTIVITIES .....................16 - 468
A. Armed conflicts and mercenary activities .........21 - 299
B. Cooperation among States in preventing mercenary
activities .......................................30 - 3912
C. Mercenary activities in Africa ...................40 - 4614
IV. PRESENCE OF MERCENARIES IN THE TERRITORY OF THE FORMER
YUGOSLAVIA ...........................................47 - 6216
A. Armed conflicts in the former Yugoslavia and the
presence of mercenaries ..........................47 - 5116
B. Evaluation of the visits to the Republic of
Croatia and the Federal Republic of Yugoslavia
(Serbia and Montenegro) .......................... 52 - 6217
V. CONCLUSIONS ..........................................63 - 7519
VI. RECOMMENDATIONS ......................................76 - 8623
I. INTRODUCTION
1. The General Assembly, in its resolution 49/150 of 23 December 1994,
inter alia, reaffirmed that the use of mercenaries and their recruitment,
financing and training are causes of grave concern to all States and
violate the purposes and principles enshrined in the Charter of the United
Nations. The Assembly urged all States to take the necessary steps and to
exercise the utmost vigilance against the menace posed by the activities of
mercenaries and to ensure by legislative measures that their territory and
other territories under their control, as well as their nationals, are not
used for the recruitment, assembly, financing, training and transit of
mercenaries or for the planning of activities designed to destabilize or
overthrow the Government of any State, threaten the territorial integrity
of sovereign States or fight the national liberation movements struggling
against colonial domination and foreign intervention or occupation.
2. The General Assembly called upon all States that had not yet done so to
consider taking early action to sign or ratify the International Convention
against the Recruitment, Use, Financing and Training of Mercenaries, and
urged all States to cooperate with the Special Rapporteur in the fulfilment
of his mandate. The Assembly took note of the report of the Special
Rapporteur (A/49/362, annex) and in particular the concern expressed
therein at the continuation of mercenary-related activities despite
Assembly resolution 48/92, and requested him to submit a report with
specific recommendations to the Assembly at its fiftieth session on the new
elements identified in the use of mercenaries.
3. Pursuant to the provisions of the resolution, the Special Rapporteur
has the honour to submit to the General Assembly for consideration his
report on the use of mercenaries as a means of violating human rights and
impeding the exercise of the right of peoples to self-determination. The
report has been drawn up in accordance with the limit on the number of
pages established, for reasons of austerity, for reports to the Assembly.
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II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Implementation of the programme of activities
4. The Special Rapporteur visited the Republic of Croatia on an official
mission from 13 to 18 September 1994. He subsequently also visited the
Federal Republic of Yugoslavia (Serbia and Montenegro) on an official
mission from 19 to 23 September 1994. An account of both visits is
contained in chapter IV of the report submitted to the Commission on Human
Rights at its fifty-first session. 1/
5. The Special Rapporteur submitted his report to the Third Committee of
the General Assembly on 11 October 1994. He subsequently travelled to
Geneva on 30 January 1995 in order to submit his report 1/ to the
Commission on Human Rights, which he introduced on 1 February 1995 at the
5th meeting of the fiftyfirst session. During his stay in Geneva, the
Special Rapporteur held consultations with representatives of a number of
States and met with members of non-governmental organizations. He also
held coordination meetings with the Centre for Human Rights.
6. The Special Rapporteur returned to Geneva on two occasions, from 29 May
to 2 June 1995 and from 31 July to 4 August 1995 in order to conduct a
number of consultations, participate in the meeting of special rapporteurs
and special representatives, independent experts and chairmen of working
groups of the Commission on Human Rights, which took place from 29 to 31
May 1995, and in order to draft this report, respectively.
B. Correspondence
7. Pursuant to the provisions of General Assembly resolution 49/150 of 23
December 1994 and Commission on Human Rights resolution 1995/5 of 17
February 1995, the Special Rapporteur sent a communication dated 8 May 1995
to all States Members of the Organization, requesting the following
information:
(a) Information relating to the possible existence of activities of
mercenaries which, in violation of the sovereignty and laws of their
countries, might have occurred or be occurring in their territory
(recruitment, financing, training, assembly, transit or use of
mercenaries);
(b) Information relating to the possible existence of activities of
mercenaries in the territory of another country which impair or may impair
the sovereignty of their State and the exercise of the right of their
people to self-determination;
(c) Information relating to the possible existence of activities of
mercenaries in their territory or in the territory of another State which
are associated with the performance of illegal international acts such as
terrorist attacks, drug and arms trafficking, smuggling and other
activities which impair the constitutional stability of their Governments
and the enjoyment of human rights by their population;
(d) Information relating to the possible existence of activities of
mercenaries in the territory of another country which impair or may impair
the sovereignty of other countries in their subregion, region or continent
and the exercise of the right of other peoples to self-determination;
(e) Information on domestic legislation currently in force and
international treaties to which their country is party relating to the
prohibition of activities of mercenaries and their use as a means of
violating the sovereignty of other States and impeding the exercise of the
right of peoples to self-determination;
(f) Their Government's position on the International Convention against
the Recruitment, Use, Financing and Training of Mercenaries, adopted by the
General Assembly on 4 December 1989; and
(g) Suggestions which, in their Government's opinion, might be useful
in refining the international approach to the subject of the use of
mercenaries as a means of violating human rights and impeding the exercise
of the right of peoples to self-determination.
8. The reports received by the Special Rapporteur relating to the alleged
use of mercenaries in the Armenian-Azerbaijani conflict in the territory of
NagornoKarabakh were conveyed to the Government of Azerbaijan in a letter
dated 26 July 1993, and to the Government of Armenia in a letter dated 28
July 1993. The reply of the Government of Azerbaijan is contained in the
Special Rapporteur's previous report to the General Assembly (A/49/362,
annex, paras. 69-71). On 21 December 1994, Mr. Vartan Oskanian, Deputy
Minister for Foreign Affairs of the Republic of Armenia, sent a letter to
the Special Rapporteur which is reproduced in the addendum to this report.
9. In its letter of 3 January 1995, the Permanent Mission of Sri Lanka to
the United Nations Office at Geneva supplied the following relevant
information from its Government:
"Sri Lanka firmly opposes the use of force and any attempts to
destabilize or overthrow legitimate Governments whether through the use of
mercenaries and assorted terrorist groups or by any other means. Equally
we oppose the use of mercenaries against genuine national liberation
movements such as those ranged against apartheid and racism.
"Within the context of the South Asian Association for Regional
Cooperation (SAARC), the regional Convention on Suppression of Terrorism
has been in effect since August 1988. This Convention provides an
effective legal framework for the countries of the region to cooperate with
one another in combating acts of terrorism, such as the act against
Maldives, which affect the security and stability of the region as well.
The Convention requires States to respect the sovereignty and territorial
integrity of each other and to prevent their territories from being used
for the perpetration of terrorist acts against another State. It imposes a
fundamental legal obligation on States to either extradite or prosecute
terrorist offenders.
"Though not directly and specifically concerned with the use of
mercenaries, the SAARC Convention has thus clear provisions to tackle the
root cause of mercenarism and the training and arming of mercenaries and
could help in the prevention of threats to the sovereignty, independence
and territorial integrity of States in the region.
"Sri Lanka is in the process of studying the question of becoming a party
to the International Convention against the Recruitment, Use, Financing and
Training of Mercenaries."
10. Mr. Roberto Robaina Gonzalez, Minister for Foreign Affairs of Cuba,
sent a letter to the Special Rapporteur dated 3 January 1995, which states
the following:
"The use, recruitment, financing and training of mercenaries are crimes
which deeply concern all States in that they violate the fundamental
principles of international law, such as non-interference in the internal
affairs of States, territorial integrity and independence, and they impede
the process of the self-determination of peoples struggling against
colonialism and all forms of foreign domination and occupation. The
activities of mercenaries constitute a flagrant violation of fundamental
and inalienable human rights.
"In his report to the forty-ninth session of the General Assembly
(A/49/362, annex), the Special Rapporteur presented an in-depth analysis of
the causes and consequences of current mercenary practices in various parts
of the world, and of the increasingly apparent connection between the
activities of mercenaries and those of terrorists; he also formulated
recommendations which should be endorsed by the international community in
order to put a stop to these activities. This report reaffirms the need
for the Commission on Human Rights to continue examining this topic, for
the Special Rapporteur to study the phenomenon even more thoroughly, and
for States to continue reporting instances of mercenary activity whenever
they occur.
"The Government of the Republic of Cuba adds its voice to those
Governments which advocate outlawing the use, recruitment, financing and
training of mercenaries, and the operations which they undertake, as being
a flagrant violation of the sovereign rights of States and of the exercise
of the right of peoples to self-determination, and a crime against
fundamental human rights and freedoms. In this spirit, Cuba has sponsored
appropriate resolutions on this topic in both the General Assembly and the
Commission on Human Rights, and it has supported the Special Rapporteur's
excellent work.
"In addition, it is worth reiterating that article 119 of the Cuban Penal
Code describes mercenary activity as a crime repudiated by the moral sense
of international law.
"The International Convention against the Recruitment, Use, Financing and
Training of Mercenaries, adopted by the General Assembly on 4 December
1989, is one of the international instruments currently being studied by
the competent Cuban authorities.
"In its replies on previous occasions with regard to this topic, in
particular its reply of 8 June 1993, the Government of the Republic of Cuba
has reported the mercenary and terrorist operations undertaken against our
country by mercenary groups financed and trained in the territory of the
United States of America; these operations aim to overthrow the Cuban
revolution and wipe out the social achievements won over the past years.
"In 1994, these mercenary operations continued to be waged against Cuba,
the most recent being an attempted infiltration of the north coast of the
country, in the Caibarien region, by three fully armed mercenaries whose
aim was to commit terrorist acts in an attempt to undermine the social
order of the country and overthrow the legitimately established Government
of Cuba.
"Jose Marcelo Garcia Rubalcava, a Mexican citizen residing in the state
of California, United States of America, was arrested in Havana in
September 1993; he intended to smuggle into the country two tear-gas hand
grenades and propaganda material for a terrorist group calling itself
'Alpha 66', which advocated taking tourists visiting Cuba as hostages.
Subsequently, Andres Nazario Sargent, the head of this terrorist group,
made a statement to the El Nuevo Herald in which he said that members of
'Alpha 66', after infiltrating the island, had pledged to carry out 'acts
of violence, attacks, sabotage and other operations' at beaches, hotels and
other tourist areas with the aim of frightening tourists away from Cuba.
"A similar threat was received in October 1993 from members of the group
'Campaign for the Freedom to Travel', which demands the right of every
United States citizen to travel freely in any country with which the United
States is not at war.
"It is the frightening impunity with which terrorist groups such as
'Alpha 66', 'Comando L', 'Brigada 2506', 'PUND' and the self-styled
'Comandos F-4' organize and prepare their armed aggression against Cuba
from the south of Florida, United States of America, which constitutes a
flagrant violation of fundamental human rights."
11. By its note verbale dated 29 June 1995, the Permanent Mission of the
United Kingdom of Great Britain and Northern Ireland to the United Nations
Office at Geneva transmitted the following reply from its Government to the
Special Rapporteur's request for information:
"The recruitment of mercenaries in the United Kingdom is always
deplorable and in some cases unlawful. The Foreign Enlistment Act of 1870
prohibits the recruitment of persons to serve with the forces of a foreign
State at war with another foreign State which is at peace with the United
Kingdom. Moreover, if any evidence came to light that British citizens
recruited as mercenaries were engaged in illegal activities themselves,
that evidence would be referred to the prosecuting authorities.
"The British Government has no plans to ratify the International
Convention against the Recruitment, Use, Financing and Training of
Mercenaries."
12. The Special Rapporteur also received replies from the Governments of
Ecuador (1 June 1995), Laos (8 June 1995), Latvia (29 May 1995), Mexico (11
July 1995), Myanmar (24 July 1995), Namibia (22 June 1995), Palau (3 July
1995), San Marino (31 May 1995), and Uruguay (6 June 1995).
13. The communications from the Governments of Ecuador, Mexico and Uruguay
referred, inter alia, to the International Convention against the
Recruitment, Use, Financing and Training of Mercenaries. Uruguay also
described those provisions of its domestic legislation which could be
applicable to the suppression of mercenary activities.
14. Deputy Prime Minister and Minister for Foreign Affairs Mate Granic
of Croatia sent a letter dated 30 June 1995 to the Special Rapporteur; it
is reproduced in the addendum to this report.
15. By its communication of 14 July 1995, the Permanent Mission of the
Federal Republic of Yugoslavia (Serbia and Montenegro) to the United
Nations Office at Geneva transmitted information regarding the presence and
use of mercenaries in the territory of the former Yugoslavia. That
information is reproduced in the addendum to this report.
III. LOCATION OF MERCENARY ACTIVITIES
16. Throughout its 50-year history, the United Nations has endeavoured to
bring about the realization of two of the primary purposes of the
Organization, namely, to maintain peace and to provide collective security
to the peoples of the world. Recognition of this effort is the greatest
tribute that could be made to the fiftieth anniversary of the United
Nations now being celebrated. Without the United Nations, the world would
probably have suffered even greater conflicts and situations of
considerable danger to humankind. This is all the more likely in light of
the fact that, despite the Organization's efforts to achieve peace and
universal respect for human rights, situations of conflict and many
instances of violence do indeed continue to exist, with consequences
detrimental to peace in certain countries or regions, to the sovereignty of
States and to the stability of constitutional Governments. Such abnormal
situations have included violations of fundamental rights, such as the
right to life and freedom, the physical integrity of persons and the rights
of peoples. The numerous armed conflicts which have arisen during the
second half of the twentieth century have entailed massive violations of
human rights. Some of them are still taking place. So many millions have
been killed or maimed, or are missing, refugees, internally displaced or
orphaned, that such conflicts, including so-called low-intensity wars, are
thought to have made as many victims overall as the Second World War, as
well as having seriously disrupted world peace. Ending armed conflicts is
therefore one of the principal challenges facing the United Nations.
17. The numerous references to such situations in the Special Rapporteur's
reports are due to the observed fact that, in most cases, there is a close
connection between such conflicts, the way in which they come about and the
somewhat evasive position generally taken by the States involved when
mention is made of the use of mercenaries by one or all of the parties to a
conflict. This should be borne in mind by United Nations organs, since the
presence of mercenaries in armed conflicts tends to make them longer
lasting, more serious and bloodier. Admittedly, the International
Convention against the Recruitment, Use, Financing and Training of
Mercenaries has not yet come into force, but none the less it seems that,
despite the provisions of article 47 of the 1977 Additional Protocol I to
the Geneva Conventions of 1949, mercenaries are very actively involved in
armed conflicts and are responsible for their most violent and cruel
aspects.
18. This statement is neither gratuitous nor exaggerated; it is based upon
proven incidents in a number of armed conflicts. Mercenaries exist, and
they are not a small number of individuals; they are groups of
professionals selling their skill in war and violence; they are also
criminal organizations, and represent an international blight devoted to
perpetrating acts of violence which ruin human lives, create material
losses and hamper economic activity. They also carry out terrorist attacks
which more than once have touched off or aggravated conflicts, with
catastrophic results for the peoples affected by them. In the exaggeration
of everyday language, many acts or forms of behaviour are erroneously
referred to as mercenary; but this misuse of the term, usually found in
political propaganda in an attempt to discredit an adversary, and also
frequent in the sensationalist press, should not, at the other extreme,
lead to a denial of the duly verified presence of mercenary activities or
of the existence of international standards, United Nations resolutions and
declarations whose purpose is to define a type of human behaviour as
mercenary and to condemn it accordingly. Any inadequacy or discrepancy in
the interpretation of the existing rules should be invoked, not as
justifying mercenary acts and behaviour, but as calling for increased
clarification, precision and refinement of the standards of national and
international law to combat the activities of mercenaries.
19. Mercenaries generally deny that this is what they are, claiming
altruistic, ethnic, ideological or religious motives in order to disguise
the true nature, according to international law, of their role. In
reality, these arguments are applicable in the case of volunteers, an
internationally accepted category, but cannot properly be invoked by a
mercenary. Ideological factors, the concept of the "professional soldier"
and psychological fixations may play a part in his personal make-up, but in
concrete terms, it is all a question of money, pay and lack of scruples,
which add up to the hallmark of the mercenary.
20. Mercenary activity is paid. Hired mercenaries attack and kill for
financial gain, in a country or conflict which is alien to their own
nationality. The historical record, the complaints which have been
submitted and the cases of mercenary activity which have been analysed by
the Special Rapporteur show that the mercenary is an expert in warfare and
in the illicit or even criminal activities for which he is hired and
receives a considerable sum of money. He usually adopts ideologies which
are extremist, radical, and distinctly intolerant, but he commits criminal
acts against the most basic rights of persons and of peoples because he is
directly motivated by financial gain.
A. Armed conflicts and mercenary activities
21. Situations of armed conflict, wherever they may occur, undermine peace
and should be avoided. The armed conflicts that have taken place during
the second half of the twentieth century have been among the main concerns
of the United Nations, since they are in contradiction with the
Organization's mission of maintaining peace and with the basic principle of
international relations which it stands for, that is, friendship and
cooperation among States and refraining from the threat or use of force.
In addition, armed conflicts threaten the political stability of
constitutional Governments and inflict serious damage on the economies of
the countries concerned; they lead to recession and poverty, and are
generally accompanied by massive human rights violations.
22. The phenomenon of mercenary activity is most clearly apparent in the
context of armed conflict. It has been noted that, in situations of armed
conflict, professional soldiers whose job situation has deteriorated or
fails to meet their expectations in terms of income may consider and accept
proposals that turn them into mercenaries. Today, it is impossible to deny
the existence of private entities and public bodies which, under a legal
cover, conduct clandestine criminal operations as a parallel activity by
hiring people who, in exchange for payment, agree to participate in the
commission of unconscionable and illegal acts.
23. Although involvement in armed conflict is the best known form of
mercenary activity, it would be a mistake to believe that the latter is
confined to such situations. In fact, this illicit activity takes a
variety of forms. For example, a mercenary may lend his services for the
perpetration of criminal acts on behalf of a particular Power or group that
wishes to cause damage in another country while using the person recruited
to cover its tracks. There have also been infamous cases in which State
intelligence authorities or security forces, opposition groups, armed
domestic resistance movements or criminal organizations hire mercenaries to
engage in illegal actions such as forming paramilitary forces for purposes
of repression, organizing death squads or providing military protection for
illicit drug trafficking, smuggling or arms trafficking.
24. In the above context, the mercenary, regardless of his nationality,
generally offers his services or is available for contact. Organizations
that recruit such persons work with government agents or with groups that
are parties to a conflict, making the necessary connections and helping to
establish a criminal alliance between recruiter and recruit. In some
cases, legal devices are used to conceal the nature of the assignment or to
make the mercenary appear to be a national of the country in whose armed
conflict he is involved. Although the use of such a device conceals the
mercenary's real status, information such as the origin of the contractual
relationship, the payment, the type of services agreed upon and the
simultaneous use of other nationalities and passports, may serve as
evidence in establishing the true nationality of persons involved in an
armed conflict who are justifiably suspected of being mercenaries.
25. Even though mercenaries are used on a massive scale today in various
armed conflicts, owing to the objective increase in the supply of this type
of activity, the recent re-emergence of the mercenary took place in
conflicts that arose when colonized peoples decided to exercise their right
to self-determination. Beginning in the 1960s, during the decolonization
of Africa, the active presence of bands of mercenaries constituted a
resource for the colonial interests that wished to remain in the region,
hindering the process of self-determination from which new African States
were emerging or giving rise to situations of destabilization and war in
which the mercenary ingredient played a primary role in intensifying and
internationalizing the armed conflict. Today, mercenary activities are
associated not with a particular continent but with the existence of armed
conflicts and of State or private forces all over the world which do not
hesitate to use this instrument to achieve specific criminal aims.
26. Generally speaking, mercenaries are former soldiers who compulsively
identify with the job of making war, pretend to be fanatical practitioners
of a given ideological option and are usually intrinsically intolerant or
violent. However, the aggravating factor is that their participation is
linked to the bloodiest aspects of a conflict and to the worst crimes
against human rights. Moreover, the financial considerations and desire for
illicit gain through looting which are associated with their participation
may be decisive in prolonging the conflict. The mercenary's interest lies
not in peace and reconciliation but in war, since that is his business and
his livelihood. This is why, when wars end or become scarce, mercenaries
tend to involve themselves in other illegal activities.
27. The Special Rapporteur's previous reports have referred to foreign
mercenaries involved in actions to destabilize constitutional Governments
or in drug or arms trafficking. Although these reports do not claim to
establish a classification of mercenary activities, it is important to take
into account the wide range of situations in which this phenomenon is
observed, since it affects the sovereignty, self-determination, stability
and security of States, as well as the human rights of their inhabitants.
28. The activities normally assigned to mercenaries may be carried out by
nationals in their own country or by foreigners who live in a country
without having changed their original nationality and legally acquired
another. A point at issue is whether these illicit activities, which can
do serious harm to a country or Government, should be considered mercenary
if recruitment, training and payment are involved. Currently, despite
these factors, cases such as these are not considered to involve mercenary
activities as such, but acts that can be prosecuted as ordinary offences
under the relevant domestic legislation. According to international
provisions on the question, foreign nationality is a prerequisite for
classifying an offender as a mercenary. In any case, the possibility of
changing this criterion should be analysed and debated with a view to
revising current international provisions on the subject, in the light of
experiences where nationality has been used to mask the mercenary nature of
illicit activities engaged in by a Power that recruits, prepares and pays
an individual to perpetrate a criminal act against another country, its
Government, its property or a given sector of its population.
29. According to this criterion, an irregular armed group engaging in
terrorism may easily become a mercenary group by travelling to the
territory of a neighbouring State in order to cover and give protection to
a gang of drug traffickers, or to occupy a portion of foreign territory,
removing it from the authority of the sovereign State. Situations such as
these have been observed in recent decades. Likewise, there may be cases
in which paid assassins or gangs of criminals are hired to commit crimes
outside the territory of the State whose government agents recruit them to
act against its own nationals, but cannot be classified as mercenaries
under the legislation of the country in which the crimes are committed.
However, this would not prevent the act of the recruiters from being
classified as illegal payment of mercenaries to perpetrate acts which are
prohibited and punishable under international law.
B. Cooperation among States in preventing mercenary activities
30. This section presents information and analyses that may serve as a
basis for formulating policies to prevent and combat mercenary activities.
31. The first observation that can be made on the basis of studies of the
issue is that mercenary activity is a recurrent phenomenon that can arise
anywhere in the world in the context of an existing armed conflict or for
the purpose of causing one. Mercenaries may also be present in the absence
of armed conflict, in connection with the perpetration of attacks that
cause material damage or affect the lives of individuals, or that
destabilize the Government of a particular country. While mercenaries are
typically present in situations of armed conflict, it would be incorrect to
limit the description to those cases alone, since it applies to any
situation in which the sovereignty of States, the self-determination of
peoples, political stability and the human rights of populations are
affected in a premeditated fashion by operations in which the active agent
is a foreign mercenary specially hired to carry out unlawful criminal acts.
32. While it is true that a number of African countries have suffered most
from the criminal action of mercenaries in recent decades, this should not
lead to the erroneous conclusion that there are or have been mercenaries
only in Africa. The facts show that any country can be the victim of
mercenary action. Moreover, mercenaries come from a variety of countries;
they are not organically linked to any State, although there are cases
where temporary alliances are formed between intelligence agencies or
government security forces which use mercenaries, or the organizations that
recruit and train them, to carry out acts of sabotage and hostility against
or within a third State. Such operations are usually secret and covered up
to ensure that the Government which is really behind the attack cannot be
held responsible for it.
33. Another issue is that there are situations where a legal vacuum or
loophole permits the existence, in some countries, of legally registered
associations which offer contracts freely to people who want to work as
mercenaries, without the act of promoting, advertising or signing such a
contract being regarded per se as illegal and subject to prosecution. In
these cases, the legal loophole is that the law guarantees that the market
may operate freely and that people may be recruited freely. The person who
recruits a potential mercenary is simply an intermediary and is not
committing an act that is illegal and criminal per se, since the mercenary
will not necessarily receive money to commit a crime, the contract is
signed in a place other than where the criminal action will occur and the
country's laws do not classify mercenary activity in a separate category
which automatically links the name of the mercenary and his signing of a
contract with the commission of a formally defined offence. This situation
calls for careful investigation and monitoring of market activities related
to the recruitment of persons for unspecified services, which constitute a
traffic that culminates in objective damage in a territory other than the
one in which the contract was made and jeopardizes the sovereignty of a
third State, peoples' lives, the economy and self-determination.
34. To prevent mercenary activities, States should consider, inter alia,
the possibility of revoking the operating licences and permits of entities
that have hired mercenaries to engage in illegal activities, refusing
passports and visas to mercenaries and prohibiting them from passing
through the territory of other States.
35. Most mercenaries are former members of the regular armed forces of a
country and, as such, have taken part in military conflicts. In other
words, it is their job to make war and it is for this very reason that
their services are sought. From this standpoint, the unemployment they
face when they are repatriated and retired from the regular forces, as well
as certain personality changes they have undergone as a result of warfare,
may contribute to their becoming mercenaries. However, States could keep
this dangerous extreme under control by agreeing on a policy of prevention
of mercenary activities, involving the exchange of information and the
provision of follow-up observation and care for these kinds of people who
have developed a tendency towards aggressive behaviour. They could also
implement a policy to promote employment and psychosocial care for people
with problems resulting from their participation in warfare, and establish
a legal framework for the activities of groups of former combatants to
prevent them from going to extremes such as glorifying war, fostering
intolerance or adopting ideologies which cultivate violence and military
interventionism.
36. Certain illicit activities, such as trafficking in drugs, people and
arms, smuggling and terrorism, are related to the recruitment of
mercenaries. Such acts may occur either in connection with armed conflicts
or independently of them. In both cases, it has been found that gangs
engaging in these activities require a military component to serve on
security missions, to move merchandise, to fly aircraft and, if the need
arises, to fight the regular forces that are protecting the sovereignty of
the State affected by these illicit acts. States therefore have an
interest in preventing bands of mercenaries from assembling or operating
within their territory by enacting laws that criminalize mercenary
activities and taking legal action to suppress them. Where mercenaries are
former members of the armed forces or the police, this should be considered
an aggravating circumstance and the penalties should be more severe.
37. Furthermore, with a view to refining the topic, there must be no
attempt to justify mercenaries in the media nor any misconceptions
regarding this type of human behaviour. A mercenary is neither a hero nor
the consummate romantic guerrilla, but a criminal whose acts are associated
with the vilest crimes against life. The State and society must become
aware of, prevent, punish and morally condemn mercenary activities. At the
same time, national legislation must be very harsh on State services such
as intelligence or security services, or authorities with repressive
proclivities, or private totalitarian-minded associations which, resorting
to markets where mercenaries are available, recruit individuals for the
purpose of establishing praetorian guards, death squads or operational
groups devoted to political repression or to the assassination of
political, religious or other adversaries. Unfortunately, such things
happen in today's world and are related to the presence of foreign
mercenaries.
38. Despite the already complex nature of this phenomenon, situations
arise which cannot be classified under the heading of what the present
state of international law describes as mercenary activities. There is a
tendency to use the term extremely loosely in ordinary conversation about
any adversary who is presumed to indulge in immoral conduct and be partial
to ill-gotten gains. An examination of situations involving the right to
sovereignty and self-determination reveals the existence of aspects that do
not precisely fit the description of mercenary activities, although other
factors can be observed, such as criminal behaviour, payment or involvement
in a conflict on behalf of a third party. Using a hypothetical example,
what is the status of a foreigner who enters a country and acquires its
nationality to conceal the fact that he is a mercenary and acts for a third
State or the other side in a domestic armed conflict? What steps should be
taken against a person of dual nationality, one of which is that of the
State against which he is acting, while he is being paid by the State of
his other nationality or by a third party? What are the limits of jus
sanguinis in an armed conflict when it is invoked by persons who are paid
and sent to fight in a domestic or international armed conflict taking
place in the country of their forebears?
39. A case-by-case analysis might well bring to light other situations,
which in practice would re-open the discussion on the effectiveness of
domestic and international instruments intended to prevent, classify and
punish criminal acts in which the aggravating circumstance is that they
were committed by an agent presumed to be a mercenary.
C. Mercenary activities in Africa
40. The issue of peace and respect for self-determination and human rights
in Africa has been raised in the reports received by the Special
Rapporteur, who considers it to be closely related to the rationale for his
mandate. A number of African countries have suffered from the presence in
their territory of mercenaries whose aim was to prevent or somehow modify
the exercise of the right of peoples to self-determination, or to interfere
by undermining the stability of constitutional Governments in the region.
41. In his reports, the Special Rapporteur has described in detail the
situation of various countries which had suffered the extreme cruelty of
mercenaries hired by third parties to undermine peace, security and
political stability. Such was the case in Angola, Benin, Botswana, the
Comoros, Lesotho, Mozambique, Namibia and Zimbabwe. In more than one case,
the racist component and support for the apartheid system have been two
characteristics of mercenary activities in these countries. For this
reason, the Special Rapporteur's reports have also referred to the
situation prevailing in South Africa, since it appears that a number of
mercenary activities have been linked to efforts to strengthen and maintain
apartheid and sponsored by officials of that regime.
42. The situation today, particularly with regard to southern Africa, has
since changed substantially. In South Africa, the apartheid regime has
been dismantled, and a multiracial, multi-party constitutional system is
leading the country towards a consolidated and modern democracy. In Angola
and Mozambique, the domestic armed conflicts have come to an end and peace
processes initiated which are expected to lead to national reconciliation
and lay the foundation for the transition to democracy. Reports of
mercenary activities have ceased. The Special Rapporteur, in his most
recent report to the Commission on Human Rights, 1/ expressed his
satisfaction at this positive development. In presenting this report to
the General Assembly, he reiterated his support for and solidarity with the
peace processes in Angola and Mozambique and with the consolidation of the
democratic, constitutional regime established in South Africa. In this
context, he reiterated the hope that the human rights and self-
determination of those peoples might never again be disrupted by the
activities of mercenaries.
43. Notwithstanding the progress noted in southern Africa, other regions
in Africa continue to suffer from political instability accompanied by
armed violence in which the mercenary component has been a constant. This
has led the Special Rapporteur to turn his attention to situations such as
that of Liberia, where the war has been raging for over five years,
resulting in 150,000 mostly civilian deaths, and approximately 1.5 million
refugees and displaced persons, and that of Sierra Leone. As is well
known, the conflict in Liberia has extended into parts of neighbouring
countries, while peace agreements, such as the one signed on 21 December
1994 in Ghana, have not yet fully materialized.
44. The Special Rapporteur also indicated his concern for other countries
such as the Sudan and Zaire, where the breakdown in the respective
political regimes has prolonged the domestic political violence and given
rise to irregular situations, reportedly aggravated in many cases by the
presence of mercenaries. As is known, in the case of Zaire, the Government
of President Mobutu Sese Seko has resisted all attempts to regularize the
political regime constitutionally and lay the foundations, based on
consensus, for a democratic transitional period leading to the holding of
general, multi-party elections. However, in addition, State security
forces, including the Civil Guard, the Special Action Forces, and the
National Intelligence and Protection Service, have been denounced on
various occasions for the use of violent police methods, contrary to human
rights. Many of these acts were carried out by the President's Special
Division, formed and trained by foreign mercenaries, some of whom remain
linked to that Guard to this day. In the case of the Sudan, the civil war
affected the population's basic living conditions, while, in the south of
the country, a guerrilla force has maintained resistance to the imposed
regime since 1989 and whose intolerance has led it to perpetrate acts of
violence against its opponents. The Special Rapporteur cannot remain
silent about reports in the international press and complaints he has
received personally during his work at the Centre for Human Rights in
Geneva pointing to the operation of paramilitary training camps in some
parts of the territory of the Sudan and the failure of government
authorities to take steps to prevent them. The training is reportedly
carried out in these camps by experienced foreign mercenaries, and some of
those trainees would not be averse to acts of international terrorism.
45. To sum up, some African countries have continued to be affected in
recent years by situations of political instability, almost always
accompanied by armed violence. Special attention was devoted to the cases
of Burundi and Rwanda, and United Nations missions were dispatched to those
countries in view of the extreme gravity of the situation there. Cameroon,
Chad, Djibouti, Niger and Togo were mentioned in previous reports of the
Special Rapporteur. To these must be added the grave situation in Somalia,
where the war between the clans and sub-clans has led to the institutional
overthrow of the State; lastly, in Mali, despite the 1992 national peace
agreement, clashes continue between government forces and the Tuareg
rebels, especially in the regions of Niafunke and Gao.
46. The above-mentioned conflicts infringe the human rights of the African
peoples and impede development activities. The presence of mercenaries,
where it is a factor, further increases these peoples' suffering. The
international community should give further thought to the background and
habitual course of the conflicts in Africa and support African efforts to
secure rapid, effective agreements guaranteeing the right to self-
determination, fundamental freedoms, democracy and development for all
these peoples who, despite the attainment of independence some years ago,
are unable to find peace with justice and development, mainly because of
violence, foreign interests and armed conflicts.
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IV. PRESENCE OF MERCENARIES IN THE TERRITORY OF
THE FORMER YUGOSLAVIA
A. Armed conflicts in the former Yugoslavia
and the presence of mercenaries
47. Since 1992 the Special Rapporteur has received information and reports
concerning the serious consequences of the wars in the territory of the
former Yugoslavia for the populations affected by the military
confrontation. The content of the reports was similar to that of others
reviewed by the Special Rapporteur on the situation of human rights in the
former Yugoslavia and by the thematic rapporteurs of the Commission on
Human Rights on the right to life and the physical integrity of persons, as
well as by other United Nations organs and agencies that are attempting to
devise a peaceful, just and lasting solution to the conflict and that are
engaged in human rights or humanitarian relief activities.
48. In both the conflict that occurred in the territory of the Republic of
Croatia in 1991 and the subsequent conflict in the Republic of Bosnia and
Herzegovina, the Special Rapporteur was apprised of such serious incidents
as indiscriminate bombardment of cities and civilian areas, murders of non-
combatants, throat cuttings, heinous acts of torture, sexual assaults,
serious instances of racism, ethnic cleansing operations, destruction of
vital services, etc., all of which are in complete contravention of the
most basic principles of human coexistence, respect for life and mutual
tolerance. None of the armed bands and parties to the conflict can be
spared responsibility for having authorized, and permitted, or, at the very
least left unpunished, such atrocious crimes committed by individuals under
their jurisdiction.
49. What made the Special Rapporteur consider these allegations in his
reports was that they refer to foreigners and in particular to mercenaries
as participants and principal authors of many of the atrocities committed.
In fact the history of the conflicts, the investigations, the information
and data provided by survivors, war correspondents, non-governmental
organizations, etc., support the view that a significant number of
foreigners have participated in the armed conflicts in the former
Yugoslavia. With the exception of the recent agreement on military
cooperation between the independent States of Croatia and of Bosnia and
Herzegovina, there are no bilateral or multilateral agreements between the
countries of the region or with other countries that would explain the
active presence of foreigners and members of foreign armies alongside one
or all the parties to the conflicts.
50. This observation, plus the alarming information and reports concerning
the influx and conduct of foreigners in connection with the armed
conflicts, led the Special Rapporteur to deal with the issue repeatedly in
his reports, to hold interviews with representatives of Slovenia, Croatia,
Bosnia and Herzegovina and the Federal Republic of Yugoslavia (Serbia and
Montenegro), and ultimately to travel to Croatia on a working visit from 13
to 18 September 1994 and to the Federal Republic of Yugoslavia (Serbia and
Montenegro) for the same purpose from 19 to 23 September 1994. Subsequent
to such visits the Special Rapporteur has continued to receive information
and correspondence from both countries, enabling him to continue his
investigations with a view to clarifying beyond all doubt the status of the
foreigners in the former Yugoslavia and of classifying as mercenaries those
that actually and manifestly are.
51. The Special Rapporteur outlined his visit in paragraphs 55 to 85 of
his report to the Commission on Human Rights at its fifty-first session. 1/
That account records visits to the interior of the territories, the receipt
of testimony, meetings with officials and civilians, the handing over of
documentation, etc., allowing for a more direct and in-depth approach to
the question as well as analysis and comparison of the reports of mercenary
activities in the armed conflicts in the former Yugoslavia. Specifically,
on the basis of the visit, observations and material received, the Special
Rapporteur has requested more convincing documents in proof, and the
holding of interviews with direct witnesses of the presence of mercenaries
and with surviving victims of their activities, to pursue his clarification
of the question. Nevertheless the Special Rapporteur reiterates his stated
belief, as it appears at the current stage of his investigation, that a
substantial number of the foreigners that have participated in the conflict
cannot be classified as mercenaries, but fall into other categories, such
as volunteers or nationals, by virtue of the timely and appropriate
application under the law of the principle of jus sanguinis. In any event
it is clear that a certain number of those who have been active both at the
time of the former conflict in Croatian territory as well as subsequently
in the territory of Bosnia and Herzegovina could be considered mercenaries,
although those making allegations must provide supplementary information as
requested by the Special Rapporteur to enable him to submit his final
conclusions to the General Assembly.
B. Evaluation of the visits to the Republic of Croatia and the
Federal Republic of Yugoslavia (Serbia and Montenegro)
52. The visits to the Republic of Croatia and the Federal Republic of
Yugoslavia (Serbia and Montenegro) enabled the Special Rapporteur to
achieve some progress in his investigations and to formulate the following
preliminary views.
53. The presence of foreigners and alleged mercenaries in the 1991 war in
Croatia and in the war in progress in Bosnia and Herzegovina since 1992
coincided with serious violations of international humanitarian law and the
human rights of the peoples affected, and psychological warfare played a
fundamental role in the development of the armed conflict. An
investigation is, however, needed to ascertain to what extent foreigners
and mercenaries were assigned the task of perpetrating the worst kinds of
war crimes and atrocities against local populations and whether their share
of the responsibility is greater than that of nationals.
54. Foreigners have been involved in circumstances of questionable
legality in the armed conflict which took place in Croatia in 1991 and in
the current conflict in Bosnia and Herzegovina. This assertion must be
qualified, however, by specifying in which cases these foreigners were
mercenaries. In accordance with the present state of international law on
the subject, persons sent by a State which is not a party to the conflict
on official duty as members of its armed forces should not be classified as
mercenaries.
55. Similarly foreigners who joined the armed forces of a State as regular
and permanent members and received material compensation similar to that
promised or paid to combatants of similar ranks and functions in those
armed forces, and who are not motivated to take part in the hostilities
essentially by the desire for private gain or material compensation, should
not be classified as mercenaries. This means that volunteers should be
excluded. Only persons motivated essentially by the desire for private
gain to take part in hostilities and those who have, in fact, been promised
material compensation substantially in excess of that promised or paid to
combatants of similar ranks and functions in the armed forces of the party
to the conflict can be considered to be mercenaries.
56. Only when a person is not a national of a party to the conflict or
resident in a territory controlled by a party to the conflict is he a
mercenary. Nationals and residents may not be regarded as mercenaries. A
mercenary must be a non-resident alien.
57. The conditions that must be satisfied in order to classify a person as
a mercenary set out in article 47 of Protocol I of the Geneva Conventions
of 1949 and the International Convention against the Recruitment, Use,
Financing and Training of Mercenaries are cumulative and concurrent; this
means that a person must satisfy all these conditions if he is to be
classified as a mercenary. The Special Rapporteur is aware that these
points are difficult to prove in practice and make it easy for the
mercenary to elude such classification while the party victim of the
aggression finds itself deprived of the right of punishment or legitimate
reparation.
58. The granting of the nationality of a State after the event, even
though based on the jus sanguinis criterion, does not alter a foreigner's
status until the actual moment the new nationality is granted.
59. With respect to allegations concerning the presence of mercenaries in
Croatia, foreigners who joined the regular Croatian army as normal and
permanent members, receiving compensation equal to or less than that
promised or paid to combatants of similar ranks and functions in that
regular army, should not be classified as mercenaries. They were
volunteers and not mercenaries. Mercenaries are persons who fight,
motivated by the desire for private gain and, in fact, are promised
material compensation substantially in excess of that promised or paid to
combatants of similar ranks and functions. Cases of foreigners who joined
international brigades and the relationship between these brigades and the
State's system of defence should be the subject of a special investigation.
During his visit, the Special Rapporteur was informed by Croatian sources
that soldiers of fortune had arrived in the country and had acted in an
undesirable manner. In any event, it must be determined whether they
received or were promised compensation, the amounts of such compensation
and who promised or paid it to them.
60. Lastly, the question of the mujahidin, or Islamic combatants allegedly
involved in the armed conflict in the Republic of Bosnia and Herzegovina,
needs to be studied. In this case persons sent by States which are not
parties to the conflict on official mission as officers or soldiers of
their armed forces should be excluded. Foreigners who have joined the
armed forces of Bosnia and Herzegovina as regular and permanent members,
receiving material compensation equal to or less than that promised or paid
to combatants of similar ranks and functions of those armed forces should
also be excluded. It must then be decided whether these persons are
motivated to take part in the hostilities essentially by the desire for
private gain, and in this context, the possibility of religious or cultural
motivation analysed.
61. Cases of dual and multiple nationality used simultaneously must also
be studied.
62. The Special Rapporteur has brought his observations and request for
clarification to the direct attention of the parties concerned so as to
determine beyond doubt the presence of mercenaries in the former Yugoslavia
as well as their responsibility in the crimes committed in express
disregard and contempt for the norms of international humanitarian law. In
this context it is of the greatest importance to include in this report the
recent communications received from the Government of Croatia and the
Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)
(see the addendum to this document). This document indicates the current
state of affairs and the steps taken by the Special Rapporteur to ensure
that a matter of the importance and gravity of the active presence of
mercenaries in the armed conflicts taking place in the territory of the
former Yugoslavia does not go unpunished.
V. CONCLUSIONS
63. The recruitment, use, financing and training of mercenaries to commit
acts which violate the right of peoples to self-determination, the
sovereignty of States, the constitutional stability of Governments and
human rights has been condemned in various international instruments and
resolutions of United Nations organs. Moreover, according to data compiled
by this Rapporteur, many States have incorporated provisions for the
punishment of mercenary activities into their domestic legislation.
64. According to the information compiled, categorised and analysed by the
Special Rapporteur, mercenary activities are not confined to the
individuals who commit the offence. While the latter are responsible for
the execution of the unlawful act, the reality is that behind the
recruitment of the mercenary and the execution of his unlawful act, there
is deliberation, planning, organization, financing and supervision
involving third parties, who may be private groups, opposition political
organizations, groups which preach national, ethnic or religious
intolerance, clandestine organizations, paramilitary groups and even
Governments which, through covert operations using mercenaries, engage in
unlawful acts against another State or against the life, liberty, physical
integrity and security of individuals. Responsibility for a mercenary act
lies not only with the agent who committed the final phase of the offence
but also with all those who individually or collectively participated in
the unlawful activity of using mercenaries for the commission of an
offence. All of this means that mercenary activity is by its very nature
complex. In most cases, it does not originate from nor conclude with the
act and responsibility of the individual deemed to be a mercenary. The
possibility must always be examined that behind each act there might be
concerted action involving public or private agents.
65. It is therefore of the utmost importance for Member States to be
vigilant and to incorporate provisions for the control and prohibition of
mercenary activities into their domestic legislation in order to prevent
organizations which engage in mercenary activities from operating in their
territories and, where applicable, to discontinue any intelligence
arrangements which, through covert operations, countenance the recruitment
of mercenaries by government agents or third parties, by providing severe
penalties for such unlawful recruitment.
66. In addition to the general aspects referred to in the previous
paragraph, the most common purposes for which mercenaries are recruited are
to commit acts of sabotage against a third country; to carry out selective
assassinations of eminent persons and to participate in armed conflicts.
The conclusion therefore is that a mercenary is a criminal who, without
prejudice to the punishment of those who recruited and paid him, must be
severely punished, in accordance with the characterization of the offence
under ordinary law, where national legislation contains no provision
concerning the separate phenomenon of mercenary activity. In all cases,
the status of mercenary must be considered an aggravating circumstance.
67. Mercenary activities are the object of universal condemnation,
including in those States which have still not specifically characterized
such activities as offences. The current stage of the debate concerns the
scope and content of the punishable act, but not its criminal nature.
Moreover, and without prejudice to the further development of international
legal instruments and of the provisions of domestic legislation, Member
States should strengthen their own capacity to formulate policies for the
prevention, follow-up and punishment of mercenary activities. The aspect
of prevention is crucial and should cover such questions as, for example,
those relating to the free supply of labour in the recruitment of persons
for unspecified activities. This is a very delicate issue which should be
examined by each country in accordance with the characteristics of its
constitutionally protected economic system. In any case, the presumed
contradiction between constitutional and international norms does not
exist. If mercenary activity is deemed to be an offence, it cannot be
accepted as a manifestation of an open-market transaction.
68. Mercenaries are generally former members of the regular armed forces
of a country who have participated in that capacity in military conflicts.
In other words, their profession is to fight wars and they are sought after
precisely for that reason. Viewed from this perspective, the fact that
they become unemployed upon their repatriation and separation from the
regular armed forces together with certain alterations in their personality
as a result of war may lead them to become mercenaries. The current supply
of mercenaries includes persons associated with the military profession
whose personal situation has taken a turn for the worse because of
reductions in troop strength or the dissolution of the regular armed corps
to which they belonged, and to the unpaid debts which they incurred as a
result.
69. Given the complexity of the phenomenon, situations exist which are
outside the scope of mercenary activity, as currently defined by
international law. There is a tendency towards an excessively general use
of the term and it is applied in common parlance to any adversary who is
presumed to engage in immoral conduct and to be attracted to ill-gotten
money. A review of situations in which laws governing sovereignty and
self-determination are involved, reveals the existence of elements which do
not exactly fit the characterization of mercenary, even though other
factors may be present: criminal conduct, pay, involvement in a conflict
on behalf of a third party, and so on. Consequently, the characterization
of mercenary is appropriate only where all the elements required for that
purpose under current international laws are effectively, verifiably and
concurrently present.
70. The Special Rapporteur has noted the existence of cases in which
recourse is had to legal devices or, more specifically, to normal legal
procedures for the purpose of concealing mercenary activity. A mercenary
may thus be given the legal identity of a national of the country in whose
armed conflict he is involved or in which he is to undertake his criminal
mission, thereby avoiding the characterization of mercenary. Although the
use of this recourse legally conceals an individual's real status as a
mercenary, information such as the origin of the contractual relationship,
the payment, the type of services arranged for and the simultaneous use of
other nationalities and passports may serve as evidence in establishing the
true status of persons who are justifiably suspected of engaging in
mercenary activities.
71. Over the last three decades, a number of African countries have
suffered from the activities of mercenaries. This is true of Angola,
Benin, Botswana, the Comoros, Lesotho, Liberia, Mozambique, Namibia, Sudan,
Zaire, Zambia, Zimbabwe, and others. In some cases, including outside of
the region of southern Africa, attacks by mercenaries took place in
response to the policy of apartheid which originated in South Africa but
whose ramifications and criminal activities extended to other parts of
Africa and even to places outside the continent. In most of these
countries, it has been possible to put an end to armed conflicts, thereby
paving the way for national reconciliation, peace and the transition to
democracy, which, in turn, have brought an end to complaints about
mercenary activities. Moreover, the democratic, multiracial and multiparty
regime installed in South Africa is being consolidated, thus opening the
door to a period of cooperation among the countries of southern Africa.
All of this confirms that mercenary activities in that region were linked
to the maintenance of the apartheid regime and to the continuation of armed
conflicts. In Liberia, Sudan and Zaire, however, where tensions and
political struggles continue to provoke violence, reports continue to be
received about mercenary activities.
72. The Special Rapporteur attaches great importance to the visits which
he paid to the Republic of Croatia and to the Federal Republic of
Yugoslavia (Serbia and Montenegro) in September 1994, in fulfilment of his
mandate. However, as of the completion of this report, the delivery of a
portion of the documentation offered by the Croatian authorities and by the
authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro)
is still being awaited. While the Special Rapporteur therefore considers
that he is not in possession of all the elements necessary to permit him to
reach final conclusions, he nevertheless wishes to offer the following
views as a working hypothesis.
73. With regard to complaints about the presence of mercenaries in
Croatia, it would be necessary to exclude from this characterization
foreigners who enlisted as regular and permanent members of the regular
Croatian army and who receive pay that is less than or equal to that
promised or paid to combatants of similar rank and functions in the regular
armed forces of that country. Such persons should be considered
volunteers, not mercenaries. A mercenary is a person who is motivated to
take part in the hostilities essentially by the desire for private gain
and, in fact, is promised material compensation substantially in excess of
that promised or paid to combatants of similar rank and functions. Special
consideration must be given to the case of foreigners who have enlisted in
international brigades and the relationship between these brigades and the
defence system of the State. It is necessary to ascertain whether they
received or were promised remuneration, the amount of such remuneration and
by whom it was promised or paid.
74. Account must also be taken of the issue of the mujahidin, or Islamic
fighters who are alleged to be participating in the armed conflict taking
place in the Republic of Bosnia and Herzegovina. In this case, an
exception should be made for persons, such as officers or troops of the
armed forces, who have been sent on official mission by States which are
not parties to the armed conflict. Exception should also be made for
foreigners who have enlisted as regular and permanent members of the armed
forces of Bosnia and Herzegovina and who receive material compensation that
is equal to or less than that promised or paid to combatants of similar
rank and functions in the armed forces of that country. It must then be
ascertained whether such persons are motivated to take part in the
hostilities essentially by the desire for private gain and, in that
context, the possibility that they might be motivated by religious or
cultural factors must be considered. The factor of nationality, however,
must always be taken into account.
75. As regards the current status of the International Convention against
the Recruitment, Use, Financing and Training of Mercenaries, the Special
Rapporteur must report that to date only 8 States have completed the
formalities required to become party to the Convention (Barbados, Cyprus,
Georgia, Maldives, Seychelles, Suriname, Togo and Ukraine), while 13 others
have signed it. Member States have thus been slow to indicate through
ratification or accession their willingness to be bound by the Convention,
which can enter into force only after 22 States have ratified or acceded to
it.
VI. RECOMMENDATIONS
76. The Special Rapporteur, taking into account the United Nations
declarations and resolutions condemning the activities of mercenaries as
serious crimes which give all States cause for profound concern, recommends
to the General Assembly that it should reaffirm its condemnation of
mercenary activities of any type or form and at any level, and of States or
third parties involved in them. He further stresses the need to strengthen
the principles of the sovereignty, equality and independence of States, the
self-determination of peoples, full respect for and enjoyment of human
rights and the stability of constitutionally established and lawfully
functioning Governments.
77. Bearing in mind that mercenary activities take place chiefly, but not
exclusively, in the context of armed conflict, it is recommended that the
General Assembly should stress that the use of mercenaries in itself and
their use for unlawful activities are to be condemned, both in cases where
such activities are carried out by one or all parties to an armed conflict
and in cases where there is no armed conflict, and mercenaries are resorted
to for purposes of impeding the self-determination of a people, damaging a
country's installations, destabilizing the constitutional Government of a
State or endangering the life, safety and human rights of its inhabitants.
78. Bearing in mind the nature, forms, contractual relationships and
specific characteristics of mercenary activities, the Special Rapporteur
suggests that the resolution condemning such activities should include a
recommendation that Member States should establish, in their domestic
legislation, an explicit prohibition to prevent organizations linked to
mercenaries from operating in their territory and from engaging in any
contractual activity relating to mercenaries or any propaganda, public
promotional activity or justification on behalf of mercenaries. States
should also prohibit their public authorities from resorting to mercenary
activities, and counter any intelligence or security machinery which,
through covert operations, uses mercenaries or does so through third
organizations.
79. Given the oversupply of career military personnel who have lost their
jobs as a result of cut-backs in the armed forces in many countries, and
the possibility that they may become mercenaries, it is recommended that
Member States should establish policies for the prevention of mercenary
activities, involving the exchange of information and the provision of
follow-up attention and care for these kinds of people who have developed a
tendency towards aggressive behaviour. They could also implement a policy
to promote employment and psycho-social care for people with problems
resulting from their participation in warfare, and establish a legal
framework for the activities of groups of former combatants to prevent them
from going to extremes such as glorifying war, fostering intolerance or
adopting ideologies which cultivate violence and military interventionism.
States have an interest in preventing bands of mercenaries from assembling
or operating within their territory, in enacting laws that criminalize
mercenary activities and in taking legal action to suppress such
activities. Where mercenaries are former members of the armed forces or
the police, this should be considered an aggravating circumstance and the
penalties should be more severe.
80. The prevention aspect is fundamental and should include such matters
as, for example, the use of the open labour market in recruiting persons
for unspecified activities. This topic should be examined by each country
in accordance with the nature of its constitutionally protected economic
system. If mercenary activities are considered a crime, it cannot be argued
that it is permissible to use the open market to recruit mercenaries.
Likewise, States have the capacity to prevent their territory from being
used for the training, assembly or transit of mercenaries and to ensure
that their financial and economic systems cannot be used to facilitate
operations linked to such illicit activities.
81. There must be no attempt to justify mercenaries in the media nor any
misconceptions regarding this type of criminal behaviour. National
legislation should be very harsh on State services, such as intelligence or
security services, or authorities with repressive proclivities or private
totalitarianminded associations which, resorting to markets where
mercenaries are available, recruit individuals for the purpose of
establishing praetorian guards, death squads or operational groups devoted
to political repression or the assassination of political or religious
adversaries.
82. States should enact measures such as the revocation of the operating
licences and permits of entities that have hired or recruited mercenaries
to carry out illicit activities, the refusal to grant passports or visas to
mercenaries and the prohibition of their transit through national
territory.
83. Bearing in mind that the elimination of the apartheid regime in South
Africa and the installation of a democratic and multiracial regime in that
country may favour the reduction of mercenary activities in Africa, it is
recommended that all persons of foreign nationality who have served as
mercenaries in armed conflicts or in support of apartheid, whether or not
they have served sentences, should be expelled from African countries. At
the same time, nationals who have participated in mercenary activities
should be liable to provisions in the respective legal system of each
country which establish penalties of the greatest severity for recidivism.
It is also recommended that organizations which advocate violence should be
legally dissolved and disarmed, the mercenaries in their service expelled
and any offences investigated and penalized to ensure that these acts do
not go unpunished.
84. The Special Rapporteur recommends that the authorities of the States
which have emerged in the territory of the former Yugoslavia and are
affected by armed conflicts should be asked to keep a detailed record of
aliens entering their countries, particularly of those taking part in the
hostilities. Indeed, it should be borne in mind that the presence of
aliens in an irregular situation is a factor that has contributed to the
escalation of the conflict, its complexity and the perpetration of cruel
acts and violations of human rights which have mainly affected the civilian
population.
85. It is recommended that the record should make a distinction between
the following: (a) aliens who have been sent on official mission as
members of their armed forces by States which are not parties to the
conflict; (b) aliens of national origin who have joined the armed forces
and who have been promised or paid material compensation similar to or less
than that promised or paid to combatants of equal ranks and functions in
those armed forces; (c) aliens who are motivated to take part in the
hostilities essentially by the desire for private gain, who have been
specially recruited to fight and, in fact, have been promised material
compensation substantially in excess of that promised or paid to combatants
of similar ranks and functions. In this last case, it is recommended that
the competent authorities should conduct more detailed investigations of
the entities or persons that recruit, train and pay these persons or may
have done so in the past, and immediately arrest those falling into
category (c) above, and either expel them from the country or prosecute
them if they have committed acts which are considered offences under the
law.
86. Lastly, with regard to the International Convention against the
Recruitment, Use, Financing and Training of Mercenaries, the Special
Rapporteur recommends that the General Assembly should suggest to those
States which have not yet ratified or acceded to it that they consider the
advisability of speeding up this process, which will hasten its entry into
force; this will promote more effective action by the international
community for the prevention, prosecution and punishment of mercenary
activities and contribute to the fulfilment of the purposes and principles
enshrined in the Charter of the United Nations.
Notes
1/ E/CN.4/1995/29.
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