geneva convention mercenary definition

The Working Group has reported the alleged involvement in human rights abuses in the prison of Abu Ghraib in Iraq of employees of two PMSCs who have never been subject to external investigations nor legally sanctioned, despite assurances given by the Government of the United States of America. Are they protected civilians or prisoners of war? Does in fact take a direct part in the hostilities; Is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation; Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; Is not a member of the armed forces of a party to the conflict; and, Is not sent by a State other than a party to the conflict on official mission as a member of the armed forces of the said State. C. Kinsey, International Law and the Control of Mercenaries and Private Military Companies, Le droit international et le contrle des mercenaires et des compagnies militaires prives, 2008. Sixth Committee of the General Assembly, Summary records of meetings Nos. International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989). Sixth Committee of the General Assembly, Summary records of meetings Nos. Why was it deemed necessary by the drafters of the Convention to add the provisions of Art. Affirming that the recruitment, use, financing and training of mercenaries should be considered as offences of grave concern to all States and that any person committing any of these offences should be either prosecuted or extradited, Convinced of the necessity to develop and enhance international co-operation among States for the prevention . Why is hiring mercenaries banned by the Geneva convention? Most estimates agree to a figure between 20,000 and nearly 50,000 foreign armed private contractors. 47 of Protocol I, and the UN Special Rapporteur address these dangers? Doctors without borders | The Practical Guide to Humanitarian Law However, the Convention entered into force only in 2001. General Assembly resolution 37/109 of 16 December 1982 (Drafting of an international convention against the recruitment, use, financing and training of mercenaries). Do they lose their protection as civilians in such a case? If they are "volunteers" in the sense of not receiving payment, then they are not mercenaries under the Conventions' definition, and so are . By resolution 39/84 of 13 December 1984, the General Assembly requested the Ad Hoc Committee to use the draft articles contained in such document as a basis for future negotiation on the text of the proposed international convention. The outsourcing of a number of basic functions which traditionally were carried out by national armies or police forces, known as the top-down privatization, has blurred the borderlines between the public services of the State and the private commercial sector creating a dangerous grey zone. Would it be useful to introduce a rule similar to Art. 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; The new legal definition of a mercenary includes the use of mercenaries by private companies offering military assistance, consultancy and security services internationally, which generally employ them in countries experiencing internal armed conflict. In Iraq, by Order 17 issued by the Administrator of the Coalition Provisional Authority on 27 June 2004, contractors are immune from prosecution. Hague Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), article. General Assembly resolution 43/168 of 9 December 1988 (Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries) Geneva Conventions | 1864-1977 | Britannica May the ICRC visit them? 20 to 24, 51 and 56 of the thirty-fifth regular session, held, respectively, from 14 to 20 October, 17 and 20 November 1980 (A/C.6/35/SR.20-24, 51 and 56) The Mercenaries Convention has, therefore, met with only moderate acceptance internationally. The criminal nature of mercenary activities is hidden. It provides what is to be understood by mercenary for this purpose, stipulating a set of elements that must be present, cumulatively, to determine who is and who is not a mercenary. This comprehensive duty is further particularised by specifically prohibiting mercenary conduct for the purpose of opposing the legitimate exercise of the inalienable right of peoples to self-determination. The Crime of Mercenarism (Chapter 16) - The African Court of Justice What is the legal basis for such an obligation. IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 Such activities also threaten peace, political stability, the legal order and the rational exploitation of natural resources; Mercenary activity must be considered a crime in and of itself and be internationally prosecutable, both because it violates human rights and because it affects the self determination of peoples. In comparison with the cost of mobilizing armed forces, the mercenary offers an inexpensive means of conducting operations, and is available to governments, transnational corporations, organizations, sects and groups, simply for payment. To the question of 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 to an organization of another State which has paid him to intervene and commit crimes against the country of which he is a national. ranging from unarmed logistical support, armed security guards, and those involved in defensive or offensive military and/or security-related activities, particularly in armed conflict areas and/or post-conflict situations. 22 to 24, 46 to 48, and 51 of the forty-third regular session, held, respectively, from 26 to 28 October, and on 22, 23, 25 and 29 November 1988 (A/C.6/43/SR.22, A/C.6/43/SR.23, A/C.6/43/SR.24, A/C.6/43/SR.46, A/C.6/43/SR.47, A/C.6/43/SR.48, A/C.6/43/SR.51) To date, however, no better definition than that set out in the Mercenaries Convention has been agreed upon. The Geneva Conventions and their Commentaries In cases in which mercenaries have been 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; Mercenary activities seriously violate one or more legal rights. The 1949 Geneva Conventions The first Geneva Convention protects wounded and sick soldiers on land during war. After more than three decades, less than one in five Members of the United Nations are parties, and recent accessions to the treaty are only slowly increasing. Join us and make a difference. [], The Commission called upon all States to consider taking the necessary action to ratify or accede to the International Convention; it invited them to investigate the possibility of mercenary involvement whenever and wherever criminal acts occurred; and it urged them to cooperate fully with the Special Rapporteur in the fulfilment of his mandate. The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination was established in 2005, pursuant to resolution 2005/2 of the Commission on Human Rights and assumed by the Human Rights Council, which replaced the previous mandate of the Special Rapporteur established in 1987. Report of the Secretary-General, Drafting of an international convention against the recruitment, use, financing and training of mercenaries (A/35/366, Add. Article 47 of Additional Protocol I provides a definition of a mercenary. By 17 February 1989, during the eighth session of the Ad Hoc Committee, the drafting group had produced a document entitled Draft articles for an international convention against the recruitment, use, financing and training of mercenaries. Any person regarding whom the measures referred to in paragraph 1 of this article are being taken shall be entitled: To communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights or, if he is a stateless person, the State in whose territory he has his habitual residence; To be visited by a representative of that State. The Commission, pursuant to the investigations conducted by the Special Rapporteur, recognized that armed conflicts, terrorism, arms trafficking and covert operations by third Powers, The Commission also requested the Special Rapporteur to hold consultations on implementation of the resolution and to report, at its sixtieth session, with specific recommendations, his findings on the use of mercenaries. Article 14 requires the State where the alleged offender is prosecuted, in accordance with its laws, to communicate the final outcome of the proceedings to the UnitedNations Secretary-General, who will transmit the information to the other States concerned. Mercenaries are used by drug cartels, terrorist organizations, organized criminal gangs and organizations engaging in trafficking in persons, weapons, diamonds and precious stones, among other things. Whether acting individually, or in the employ of contemporary multi-purpose security companies, the mercenary is generally present as a violator of human rights. They were often highly skilled in the art and science of war. Does the prohibition of mercenarism imply that the general trend of outsourcing State tasks to private companies may not concern the defence and security sector? It raises some doubts as to whether by including mutatis mutandi the prerequisites of the definition of a mercenary, contained in Article 47 of Additional Protocol I to the Geneva Conventions (IHL) and Articles 1 and 2 of the International Convention on the Recruitment, Use, Financing and Training of Mercenaries (ICL), into the new definition . The Special Rapporteur has noted the growth and diversification of these companies, which are today active on the five continents. Beyond that, has a State a due diligence obligation to ensure respect for IHL by PMSCs it hires? The specific intent of the mercenary must be private gain over and above that which an ordinary soldier would receive. At the conclusion of 16 years and in submitting his final report to the Commission on Human Rights, the Special Rapporteur notes that despite efforts by the United Nations and inter-State regional organizations to combat mercenary activities and curtail them as far as possible, such activities have not disappeared. By resolution 2003/2 of 14 April 2003 the Commission [] reaffirms [] its condemnation of mercenary activities as a violation of the principle of self-determination to which all peoples have a right, pointing out that such activities constitute a danger to peace and security in developing countries, particularly in Africa and in small island States. 19, 21 to 29, 50, 51, 54, 57, 60 to 61 of the thirty-eighth regular session, held, respectively, from 19 to 31 October, 22 November to 2 December1983 (A/C.6/38/SR.19, 21 to 29, 50, 51, 54, 57, 60 and 61) Could an intervention by mercenaries in an armed conflict transform that conflict into an international armed conflict between the mercenaries State of origin and the State in which the mercenaries are about to fight? They were used, with varying degrees of success, by Carthage in its wars against Rome from 264 to 146 BCE and by innumerable kings and princes around the globe throughout the Middle Ages. The globalization of the world economy and the shifting from centralized government to diffused governance or ungovernance, together with the downsizing of regular armed forces of States, which have had important reductions in the public sector both in developed and developing countries are some of the causes behind the rapid development of the privatization of violence. If the person concerned is not extradited to another State for trial, the case should be submitted to the competent national authorities. [], Sierra Leone is well on the way towards peace and an improved human rights situation. The Geneva Conventions turn 70 - International Committee of the Red Cross The Special Rapporteur was called upon to make good this deficiency, by having recourse to international customary law, legal doctrine, and expert views, and by seeking the opinion of Governments, jurists, politicians in government posts and members of international and non-governmental organizations. Similarly, the Security Council condemned any State which persisted in permitting or tolerating the recruitment of mercenaries and the provision of facilities to them with the objective of overthrowing the Governments of Member States (see, inter alia, resolution 239 (1967) of 10 July 1967, resolution 405 (1977) of 14 April 1977 and resolution 419 (1977) of 24 November 1977). Governments were requested to make proposals towards a clearer legal definition and the Office of the United Nations High Commissioner for Human Rights was asked to convene expert meetings to study and update the international legislation in force and to propose recommendations. 2. These wars also exemplified a major objection to mercenary service soldiers who fight only for pay have no interest in bringing war to an end. The Special Rapporteur conducted an in-depth study of military security companies during a visit in January 1999, at the invitation of the British Government, to the United Kingdom of Great Britain and Northern Ireland. N.B. The destabilizing activities undertaken under apartheid affected all southern Africa. : On 1 January 2010, 32 States had ratified or acceded to this convention, which entered into force on 20October 2001. A mercenary includes any person not a member of the armed forces of a party to the conflict who is specially recruited abroad and who is motivated to fight or to take part in armed conflict essentially Sixth Committee of the General Assembly, Summary records of meetings Nos. International Convention against the Recruitment, Use, Financing and [], The Special Rapporteur was informed that at the end of August 2003 a group of mercenaries that was preparing to travel to Cte dIvoire was arrested by the French police at a Paris airport. Geneva Convention - an overview | ScienceDirect Topics 49 to 57, and 64 of the thirty-ninth regular session, held, respectively, from 16 to 27 November, and 6 December1984 (A/C.6/39/SR.49-57, 64) The purpose of the direct combat requirement is to distinguish a mercenary from a military adviser. The terrorist act does not necessarily need to be carried out by a member of the clandestine organization. Such a paid criminal act would be a mercenary act because of its nature and purpose. []. Under IHL, may a mercenary be prosecuted for the mere fact of being a mercenary? Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: Overthrowing a government or otherwise undermining the constitutional, legal, economic or financial order or the valuable natural resources of a State; or. Most of them are neither nationals of one of the parties to the conflict nor residents of the country in conflict. Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, 3 July 1977, United Nations, Treaty Series, vol 1490, p. 96. So far, no State has denounced the Mercenaries Convention. The provisions of paragraph 3 of this article shall be without prejudice to the right of any State Party having a claim to jurisdiction in accordance with article9, paragraph 1 (b), to invite the International Committee of the Red Cross to communicate with and visit the alleged offender. An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. What risks does the privatization of defence, security and police activities entail? 2. Report of the Sixth Committee to the General Assembly (A/37/648, 3 December 1982) It's a moment to celebrate all the lives the conventions have helped save, note the further work that needs to be done and to remind the world of the importance of protecting people from the worst of warfare. 47 or any other rule of IHL to be a mercenary? Article 1 keeps the definition of a mercenary contained in article 47 of the Protocol Additional I to the Geneva Conventions (see above), but expands it to cover situations other than armed conflicts, in which persons are recruited for the purpose of participating in a concerted act of violence aimed at overthrowing a Government or otherwise undermining the constitutional order of a State, or undermining the territorial integrity of a State. Report of the Sixth Committee to the General Assembly (A/39/777, 10 December 1984) Note how narrow (too narrow?) Selected preparatory documents Article 17 deals with disputes between Parties. 1(2) applicable (only or equally) in armed conflicts? These are all characteristics of the mercenary-related activities and modalities of the conflicts of the twenty-first century. Other semi-official estimates give the following figures: 3,000 to 5,000 United States security contractors, 7,000 to 10,000 expatriates such as Australians, British, Canadians and South Africans, 15,000 to 20,000 third-country nationals from countries such as Bulgaria, Colombia, Chile, El Salvador, Fiji, Honduras, Nepal, Peru, the Philippines, Romania, Russian Federation, Ukraine and others, as well as 25,000 to 30,000 Iraqi host-country nationals. The proposal should affect neither the status nor the treatment of the obligations of mercenaries and of the parties to a conflict under 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. Huge mercenary bands laid waste to much of Europe with little regard for the suffering of the common peoples who were killed, mutilated and despoiled at the whim of marauding soldiers of fortune. Does Art. Mercenaries. It defines their rights and sets down detailed rules for their treatment and eventual release. May a person who is protected by the IHL of non-international armed conflicts be prosecuted for such crimes? Unfortunately the scientific literature on the matter is limited, and the available material comprises newspaper articles, television reports, fictional accounts, leaflets, and other materials that deal superficially with the topic of mercenaries. 47? This Convention represents the fourth updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906 and 1929. A mercenary may become a social outcast, but the law can take no action against him. Some of its provisions could be considered progress towards eradicating mercenary activity, since the International Convention includes provisions that facilitate the prosecution of mercenaries and promote inter-State cooperation in that regard. Its division in the Barbados, Blackwaters Greystone Ltd., employs third-country nationals from countries such as Chile, Nepal, El Salvador, Honduras and others at salaries which are lower than those recruited in the United States. 47 for a mercenary? Sixth Committee of the General Assembly, Summary records of meetings Nos. Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries, seventh session, 25 January to 12 February 1988 (A/43/43). The words "is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;" make it quite clear about. Those who join a fight which is not their own to seek adventure or motivated by ideology may be troublesome in their own way, but are not mercenaries in either common parlance or law. This may be due in part to the widespread, but contestable, belief that the definition of mercenary in article 1 is too complex or limited. 3? []. Recruited by PMSC these individuals often operate in a grey area with limited oversight or army control. During the 1990s South Africa freed itself from that regime, which was replaced by a multiracial democracy that respected its various ethnic communities and was firmly committed to the protection of human rights. 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.. At this point, the Ad Hoc Committee was of the view that efforts could be made to produce the final text of a convention in a relatively short time. (c) suggest), would it be admissible to deprive anyone of IHL protection because he or she is fighting for the aims mentioned in subpara. Private military and security companies fill the vacuum mainly left in three types of unstable situations: (i) in zones of low-intensity armed conflict (the new asymmetrical wars) where the armies are not fully deployed or in post-conflict situations with a high level of insecurity; (ii) in armed conflicts when international organizations do not intervene; and (iii) in troubled areas in developing countries where there is no presence of the State and extractive transnational corporations operate. General Assembly resolution 38/137 of 19 December 1983 (Drafting of an international convention against the recruitment, use, financing and training of mercenaries) (Paras 30 and 43) Why does the Special Rapporteur assume that mercenaries commit more war crimes and human rights violations than other participants in armed conflicts? Second, and going well beyond article 47 of Additional Protocol I, 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. The Geneva Convention was a series of international diplomatic meetings that produced a number of agreements, in particular the Humanitarian Law of Armed Conflicts, a group of international laws. Although sometimes criticised as too complex to be workable, the definition is no more complicated than is the case with many other international crimes. Geneva Convention relative to the Treatment of Prisoners of War | OHCHR Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: 1. Nationality obtained fraudulently is excluded; Is motivated to participate in an armed conflict by profit or the desire for private gain; 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. While a lawful combatant who complies with international humanitarian law bears no criminal responsibility for killing or injuring enemy combatants or damaging military objectives, that is not the case for mercenaries. It is very difficult to gain access to this level, well protected as it is. Lastly, the Convention establishes a procedure for the settlement of disputes between States parties concerning the interpretation or application of the instrument. "A mercenary is any person who: Is specially recruited locally or abroad in order to fight in an armed conflict; The Working Group observes that in the last 20 years there has been, primarily in Western European and North American countries and particularly in the United States and the United Kingdom, a significant increase in private military and security companies which provide its services in zones of low-intensity armed conflict and post-conflict situation such as Afghanistan, the Balkans, Iraq, Colombia, Somalia and the Sudan. Under which conditions? Any alleged offender present on their territory should be taken into custody and a preliminary inquiry opened. There are a further nine signatories which have yet to ratify. By resolution 44/34 of 4 December 1989, the General Assembly, having considered the draft convention prepared by the Ad Hoc Committee and finalized by the Working Group, adopted and opened for signature and ratification or for accession the International Convention against the Recruitment Use, Financing and Training of Mercenaries, which was annexed to the resolution. Why should only foreigners come within the definition of mercenaries? []. Copyright United Nations, 2023. General Assembly resolution 40/74 of 11 December 1985 (Drafting of an international convention against the recruitment, use, financing and training of mercenaries) On 5 December 1979, Nigeria, acting on behalf of other Member States of the UnitedNations, sent a letter to the UnitedNations Secretary-General requesting that an item entitled Drafting of an international convention against activities of mercenaries be added to the agenda of the General Assemblys thirty-fourth session. General Assembly resolution 42/155 of 7 December 1987 (Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries)
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