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Mercenaries: Diagnosis before Proscription***

Published online by Cambridge University Press:  07 July 2009

F.J. Hampson
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Extract

For nine years an ad hoc committee of the General Assembly of the United Nations worked to reach agreement on the text of an international convention against the recruitment, use, financing and training of mercenaries. In December 1989, the text was submitted to the General Assembly for adoption. Mercenary activity is not a new phenomenon. The attempt to regulate such activity suggests that rules are needed to meet what is either a new problem or an old problem the significance of which has increased. The object of this article is to attempt to identify what activities need to be proscribed and who should be held legally responsible and for what That will suggest a framework against which to evaluate recent texts concerning the use of mercenaries. These include not only the one elaborated under the aegis of the United Nations but also the OAU Convention for the Elimination of Mercenaries in Africa, the Luanda Draft Convention and Article 47 of Protocol I to the Geneva Conventions of 1949. It is necessary first to consider the historical position of the mercenary, before examining the role of such fighters in the conflicts of the 1960s and 1970s. It should then be possible to establish the nature of the perceived problem and, in particular, whether it is the activities of the ‘mercenary’ himself, as commonly understood, which is the cause of that problem. The article suggests that the issue of mercenary activity has been mis-diagnosed. It is not a matter of the jus in bello but of the jus ad bellum. The mercenary, it is argued, is an unlawful participant in the conflict. The problem is one of intervention and not of the status of such a fighter.

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Articles
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Netherlands Yearbook of International Law , Volume 22 , December 1991 , pp. 3 - 38
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Copyright © T.M.C. Asser Press 1991

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References

1. The Committee was established under GA Res. 35/48, Official Records of the General Assembly, Thirty-Fifth Session, Annexes, agenda item 29, Doc. A/35/655.

2. 27UN Chronicle (March 1990) No. 1, pp. 5 and 77.Google Scholar

3. Infra, n. 7.

4. OAU Doc. CM/433/Rev. L, Annex 1; for the text see Mourning, P.W., ‘Leashing the Dogs of War; Ouuawing the Recruitment and Use of Mercenaries’, 22 Virg. JIL (1982) p. 598 at p. 613Google Scholar; Burchett, W. and Roebuck, D., The Whores of War (1977) p. 234.Google Scholar

5. Draft Convention on the Prevention and Suppression of Mercenarism [sic] (1976) (hereinafter cited as Luanda Draft Convention); for the text see Mourning, loc. cit. n. 4, p. 615; Burchett and Roebuck, op. cit. n. 4, p. 237.

6. Additional Protocol I to die Geneva Conventions of 1949, 8 June 1977, UN Doc. A/32/144 Annex I (1977), reprinted in 16 ILM (1977) pp. 1391, 1412.Google Scholar

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8. This definition is designed to identify mercenaries as the term is generally understood. It is not intended to be used as a definition for legislative purposes. As was pointed out in the Diplock Report, it is neither feasible nor desirable to include motivation as an essential element in the definition of a criminal offence owing to difficulties of proof; Report of the Committee of Privy Counsellors appointed to inquire into the recruitment of mercenaries, Cmnd. 6569, paras. 5-7 (August 1976).

9. Until recently, it was taken for granted that mercenaries were foreigners and that the term could not be used for those who fought on behalf of or against their country of origin, even if motivated to do so by financial gain. The fear that nationals could be exploited by foreigners in this way caused some delegations to the Ad Hoc Committee to suggest that the nationality of an alleged mercenary should be an irrelevant criterion; Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries (hereinafter cited as Report), Official Records of the General Assembly, (A/40/43) paras. 54-55; (A/42/43) paras. 22-23; (A/43/43) paras. 86, 93-94. See also Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJRep. (1986) pp. 63-64, paras. 113-114. Such a situation is alleged to have arisen when ‘The United States conceived the idea of turning Libyans, sent to overthrow the Government of Chad, against the colonel [Gadaffl] towards the end of the Reagan administration.… The Libyan soldiers, taken prisoner in 1988 during fighting between Libya and Chad along their border, received American paramilitary training when they volunteered to fight in exchange for their release from prisoner-of-war camps.’ The potentially serious implications of such a situation are illustrated by the claim that ‘Human-rights policy towards Kenya was compromised when the United States was compelled to ask Nairobi to accept 350 of the now unemployed mercenaries who had been rejected by Zaire’ The Times (13 March 1991) p. 1.Google Scholar

10. E.g., the International Brigade in the Spanish Civil War. See Borchard, E., ‘The Power to Punish Neutral Volunteers in Enemy Armies’, 32 AJIL (1938) p. 535CrossRefGoogle Scholar; Brownlie, I., ‘Volunteers and the Law of War and Neutrality’, 5 ICLQ (1956) p. 570CrossRefGoogle Scholar; David, op. cit. n. 7. It should be recognised that ‘idealists’ may be found on either side in a conflict. The alleged mercenaries who fought with the FNLA in Angola included Nick Hall: ‘He wanted to fight against Communism, even if it meant fighting without pay in a distant country far from home.’; Dempster, C. and Tomkins, D., Firepower (1978) p. 59.Google Scholar

11. McCandless and Boddy, two ‘mercenaries’ recruited for the FNLA in Angola, ‘… were already earning more than the weekly £150 on offer so it was the adventure rather than the money which appealed to them.’ Dempster and Tomkins, op. cit. n. 10, p. 102. It appears that Douglas (‘Canada’) Newby was fighting without pay; ibid., p. 146. See also Dumont, op. cit. n. 7, p. 38.

12. E.g., Soviet forces fighting in Afghanistan.

13. Some advisers, technicians, trainers and non-combatant support personnel may be seconded from normal duties with the armed forces of their home State. Others, many of them former members of armed forces, take up such appointments in a purely private capacity. See generally, Halliday, F., Mercenaries: ‘Counter-Insurgency’ in the Gulf (1977) especially at pp. 70–71.Google Scholar

14. Supra, n. 8; it also calls into question the reason why individuals join the armed forces of their home State.

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16. This is still seen as important in some quarters today; Diplock Report, supra, n. 8, paras. 10 and 15.

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23. They must be commanded by a person responsible for his subordinates; have a fixed distinctive emblem recognisable at a distance; carry arms openly and conduct their operations in accordance with the laws of war. See 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Annex, Art. 1; Roberts and Guelff, op. cit. a 21, p. 48 and the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, Art. 4; ibid. pp. 217-219.

24. Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, Art. 16; ibid. p. 223.

25. Knitel, H.G., ‘Les délégations du CICR’, Etudes et Travaux de l'Institut Universitaire des Hautes Etudes Internationales, No. 5 (1967) p. 54Google Scholar, cited in Best, G., Humanity in Warfare (1983) p. 299.Google Scholar

26. E.g., the Seychelles, the Comoros, the Maldive Islands; infra, n. 46.

27. ‘Except for a concrete national interest that needs defense, it would seem preferable not to create a diplomatic issue out of an injury to an American citizen who has violated his neutral obligations, even if not the letter of the existing neutrality statutes.’ When an American is captured, ‘… there has been a disposition to encompass his release and return to the United States, or at least to see that the rules of war are observed in his behalf. Where he is not discriminated against as an American citizen, the question arises whether this is not an inadvisable intervention and whether diplomatic protection should not be completely withdrawn’; Borchard, E., ‘The Power to Punish Neutral Volunteers in Enemy Annies’, 32 AJIL (1938) p. 535 at p. 537.CrossRefGoogle Scholar

28. Under the Geneva Conventions 1949, there is an obligation on High Contracting Parties to bring alleged perpetrators of grave breaches of the Conventions to trial, regardless of their nationality; Arts. 49, 50, 129 and 146 of the four Conventions respectively, Roberts and Guelff, op. cit. n. 21, pp. 188-189, 210, 267 and 323.

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30. Mockler, op. cit. n. 7, pp. 254-256; Cassese, loc. cit. n. 29, at p. 2.

31. Mockler, op. cit. n. 7, pp. 178-193; Cassese, ibid.

32. Burmester, loc. cit. n. 7, p. 48; Rosas, op. cit. n. 29, p. 201; Mockler, op. cit. n. 7, pp. 256-275; Cassese, ibid.

33. The Annual Register of World Events in 1970 (1971) pp. 180, 254, 265; ECM/Resolution 17-VII adopted in December 1970 by the Council of Ministers of the OAU cited in Cassese, loc. cit. n. 29. p. 12, fn. 31.

34. Burchett and Roebuck, op. cit. n. 4; Cassese, loc. cit. n. 29, p. 14 et seq; Hoover, loc. cit. n. 29, p. 324 et seq; and the authorities cited at n. 7.

35. Taulbee, loc. cit. n. 7, p. 341.

36. Ibid.

37. Halliday, op. cit. n. 13.

38. Journal de Geneve (12 June 1978) p. 16Google Scholar, cited by Cassese, loc. cit. n. 29, p. 3.

39. Cassese, loc. cit. n. 29, pp. 3-4; the Cuban troops fighting in Ogaden in Ethiopia have been fighting against Somali troops supporting a national liberation movement. It has been reported that Saddam Hussein has employed Sudanese mercenaries against the Kurds. The Sunday Times reports that the Sudanese ‘… government has remained a close ally of Iraq…’. It is not clear from the report whether the Sudanese fighters have been recruited individually or whether they have been organised by the Sudanese Government itself or whether they are even members of the Sudanese armed forces; ‘Mercenary Units Kill Rebel Kurds for Saddam’, The Sunday Times (14 April 1991) p. 20.Google Scholar

40. Report, supra, n. 9, (A/36/43) para. 19.

41. Infra, a 73.

42. Higgins, R., ‘International Law and Civil Conflict’, in Luard, , ed., op. cit. n. 29, p. 169 at p. 183Google Scholar; Falk, R.A., ‘Janus Tormented: the International Law of Internal War’, Rosenau, J.N., ed., International Aspects of Civil Strife (1968) pp. 185–192Google Scholar; Moore, J.N., ‘The Control of Foreign Intervention in Internal Conflict’, 9 Virg. JIL (1989) pp. 209–340Google Scholar; supra, n. 39 on the alleged use of Sudanese ‘mercenaries’ by Saddam Hussein against the Kurds.

43. Cassese, loc. cit. n. 29, p. 3; Report, supra, n. 9, (A/36/43) para. 19.

44. Ibid.; Taulbee, loc. cit. n. 7, p. 340.

45. Taulbe, ibid.; UN Chronicle (July 1982) pp. 25 and 27.Google Scholar

46. UN Chronicle (July 1982) p. 27Google Scholar; see also the coup attempt in the Maldives in 1988. Mercenaries under the leadership of Bob Denard took over power in the Comoros Islands when they declared independence from France in 1975 and remained the ‘power behind the throne’ for some years; Dumont, op. cit. n. 7, pp. 59-61; The Times (1 December 1989) p. 12.Google Scholar

47. Doc. ECM/Res. 5-III of 10 September 1964; ‘… the use of mercenaries has unfortunate effects … on the struggle for national liberation in Angola, Southern Rhodesia, Mozambique and the other territories in the regions which are still under colonial domination …’

48. Mockler, op. cit. n. 7, p. 275.

49. OAU Declaration on the Activities of Mercenaries in Africa, adopted on23 June 1971 bythe Heads of State and Government of Member States of the OAU, CM/St 6-XVII, operative para. 7; see also Resolution concerning ‘the aggression of the mercenaries against the Democratic Republic of the Congo’, AHG/resolution 49-IV of 14 September 1967; resolution concerning the ‘premeditated aggression by Portugal against the Republic of Guinea’, ECM/resolurion 17-VII adopted in December 1970 by the Council of Ministers.

50. Infra, n. 91 and accompanying text.

51. SC Res. 161, A of 20-21 February 1961; GA Res. 1599(XV) of 15 April 1961; SC Res. 169 of 24 November 1961; see generally Luard, loc. cit. a 29.

52. GA Res. 2395 (XXIII), adopted on 29 November 1968, operative para. 9. The resolution was sponsored by 54 States, principally Afro-Asian.

53. GA Res. 2465 (XXIII) of 20 December 1968, operative para. 8; confirmed in GA Res. 2548 (XXIV) of 11 December 1969 and 2708 (XXV) of 14 December 1970; see also the Declaration on Friendly Relations and Co-operation among States, GA Res. 2625 (XXV) of 24 October 1970, Principle I, para. 8.

54. GA Res. 3103 (XXVIII) of 12 December 1973.

55. McCoubxey, H., International Humanitarian Law (1990) p. 1.Google Scholar

56. Geneva Conventions of 12 August 1949, common Art. 2; Roberts and Guelff, op. cit. n. 21, e.g., p. 171.

57. Roberts and Guelff, op. cit. n. 21, p. 332 for text of Albanian reservation and p. 336 for British view that the reservation is invalid; Aldrich, G., ‘Establishing Legal Norms through Multilateral Negotiation’, 9 Case W. Res. JIL (1977) p. 9 at pp. 12–13Google Scholar; 10M. Whiteman Digest (1968) pp. 232–234Google Scholar. See generally, Pilloud, C., ‘Les réserves aux Conventions de Genève de 1949’, 39 RICR (1957) p. 409Google Scholar and 47 RICR (1965) p. 315.Google Scholar

58. Burchett and Roebuck, op. cit. n. 4; Mourning, loc. cit. a 4, p. 601 et seq; Hoover, loc. cit. n. 29; Taulbee, loc. cit. n. 7, p. 347; Cassese, loc. cit. n. 29, p. 14; see infra, n. 99 and accompanying text.

59. E.g., recognition of POW status, where applicable; supra, n. 23 and accompanying text.

60. Supra, n. 28.

61. Cassese, loc. cit. n. 29, p. 3.

62. For text, see Roberts and Guelff, op. cit. n. 21, p. 63 et seq. The references to the text of the Convention come from that source. The text in 2 AJIL (1908) Supp. 117 is significantly different; e.g., ‘No body of soldiers shall be organized or enlistment bureaus opened in the territory of a neutral power for the benefit of the belligerents’, 2 AJIL (1908) Supp. 118, Art. 4Google Scholar; ‘A neutral power shall not tolerate any of the acts mentioned in Arts. 2 to 4 on its territory’, ibid. p. 119, Art. S.

63. Roberts and Guelff, op. cit. n. 21, p. 63; Art. 5 in the AJIL text is similarly but not identically worded.

64. ‘A neutral power does not incur responsibility from the fact that individuals cross its frontier singly in order to enlist in the service of the belligerents’, 2 AJIL (1908) Supp. 119, Art. 6.Google Scholar

65. Brownlie, I., ‘Volunteers and the Law of War and Neutrality’, 5 ICLQ (1956) p. 570CrossRefGoogle Scholar; and ‘International Law and the Activities of Armed Bands’, 7 ICLQ (1958) p. 712Google Scholar; David, op. cit. n. 7.

66. Oppenheim, L.F.L., International Law, Lauterpacht, H., ed, vol. 1, 8th edn. (1955) p. 140Google Scholar; vol. II, 7th edn. (1952) paras. 55, 76, 76a. 298, 308.

67. Ibid.

68. Ibid.; Falk, loc. cit. n. 42, pp. 185-192.

69. Higgins, loc. cit. a 42, p. 169 at p. 172.

70. Lauterpacht, H., Recognition in International Law (1948) pp. 276–277.Google Scholar

71. Schwarzenberger, G., International Law as Applied by International Courts and Tribunals, vol. II (1968) p. 664Google Scholar and generally pp. 664-666 (footnotes omitted).

72. Where the Charter provisions have been enforced and neutral powers have taken part in peacekeeping operations, difficulties have arisen in practice. When Sweden supplied afield hospital to South Korea, it warned that it would follow a policy of complete neutrality in the event of the conflict spreading and involving the great powers. Similarly, Swedish observers were withdrawn from UNOGIL when it felt its neutrality threatened by the intervention of United States marines in the Lebanon in 1958; Blix, H., Sovereignty, Aggression and Neutrality (1970) p. 48Google Scholar. See generally, Castren, op. cit. n. 19; Schindler, op. cit. a 19, pp. 253-256; Chaumont, C., ‘Nations Unies et Neutralité’, Hague Recueil (1956) vol. I p. 5.Google Scholar

73. It is far from clear whether a State has a right to assist another State facing an internal threat in all circumstances in which it has been asked to do so; see Doswald-Beck, L., ‘The Legal Validity of Military Intervention by Invitation of the Government’, 56 BYIL (1985) p. 189Google Scholar; contra Pinto, R., ‘Les Règies du Droit International concernant la Guerre Civile’, Hague Recueil (1965) vol. I, p. 452 at pp. 472–475Google Scholar. See also Van, A.Thomas, W. and Thomas, A.J., Non-intervention: The Law andIts Import in the Americas (1956) Ch. XIGoogle Scholar; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986) pp. 105-110, paras. 199-209.

74. GA Res. 2131 (XX), 21 December 1965. The resolution was adopted by 109 to 0, with 1 abstention (the UK) on technical grounds.

75. GA Res. 2625 (XXV), 24 October 1970. The resolution was adopted without a vote. See also the Resolution on the Definition of Aggression, GA Res. 3314 (XXEX), 14 December 1974, which was adopted by consensus; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986) pp. 106-110, paras. 202-209.

76. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJRep. (1986) pp. 98-102; 103-104; 106-108; 118-119; 133, paras. 187-192; 195; 202-203; 205; 228 and 264. The provisions expressly cited include ‘Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’, ibid. para. 191, as well as the passage quoted in the text.

77. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJRep. (1986) p. 108, para. 206; Judge Schwebel, dissenting, p. 351, paras. 179-181. See generally, Wilson, H., International Law and the Use of Force by National Liberation Movements (1988)Google Scholar; Atlam, H., ‘International Liberation Movements and International Responsibility’, in Spinedi, M. and Simma, B., eds., United Nations Codification of State Responsibility (1987).Google Scholar

78. Art. 1 of the International Covenant on Civil and Political Rights and Art. 1 of the International Covenant on Economic, Social and Cultural Rights provide that ‘peoples’ have the right to self-determination. UN practice appears to confine the application of the principle to ‘peoples’ in colonies.

79. Declaration on the Granting of Independence to Colonial Territories and Peoples, GA Res. 1514 (XV), 14 December 1960, para. 4; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States on the Protection of Their Independence and Sovereignty, GA Res. 2131 (XX), 21 December 1965, para. 6; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States, GA Res. 2625 (XXV), 24 October 1970, para. 1, s. 5; Resolution on the Definition of Aggression, GA Res. 3314 (XXK), 14 December 1974, Art. 7. See generally, Wilson, op. cit. n. 77; Moore, loc. cit. n. 42; Little, R., Intervention: External Involvement in Civil Wars (1975), especially pp. 189–193.Google Scholar

80. GA Res. 3314 (XXIX), 14 December 1974, Art. 3(g) expressly provides that ‘The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State’ such as amount to the acts prohibited by Art. 3 represent aggression. Where a State knowingly allows those within its jurisdiction to be recruited for service in a foreign conflict, the forces may be perceived by other States as fighting on behalf of the State. See Doswald-Beck, loc. cit. n. 73.

81. E.g., when British mercenaries departed to fight with the FNLA and UNIT A in Angola, they were allegedly protected by Scotland Yard's Special Branch; Dumont, op. cit. n. 7, p. 16.

82. GA Res. 2131 (XX), 21 December 1965, para. 2.

83. Infra, n. 91, and accompanying text.

84. Supra, n. 74.

85. Burmester, loc. cit. n. 7, p. 45.

86. Or even terrorist activity; ‘Terrorist Mercenaries Suspected’, The Times (24 November 1977)Google Scholar; on the alleged use of mercenaries to protect drug traffickers, see Dumont, op. cit. n. 7, Ch. 8; The Times (20 September 1989) p. 8Google Scholar; The Independent (4 October 1990) p. 12Google Scholar. See also Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986).

87. Oppenheim/Lauterpacht, op. cit. n. 66, vol. I, 8th edn. (1955) pp. 337-338, 362-363; Brownlie, I., Principles of Public International Law, 4th edn. (1990) Ch. 22Google Scholar (hereinafter cited as ‘Principles’); Brownlie, I., System of the Law of Nations: State Responsibility, Part I (1983) pp. 139–141Google Scholar (hereinafter cited as ‘State Responsibility’); Christenson, G.A., ‘The Doctrine of Attribution in State Responsibility’, in Lillich, R.B., ed., International Law of State Responsibility for Injuries to Aliens (1983).Google Scholar

88. E.g., British forces in Oman; Halliday, op. cit. n. 13. Under Art. 9 of Part I of the Draft Articles on State Responsibility, adopted by the International Law Commission on First Reading, the acts of seconded forces shall be considered as acts of the receiving State, if they were acting ‘in the exercise of elements of the governmental authority of [that] State’; ILC Yearbook 1980 Vol. II Part 2, p. 31. This only addresses the responsibility attaching to the actions of the forces and not the responsibility for their presence in the receiving State.

89. Dumont, op. cit. n. 7, pp. 7-12.

90. Ibid. pp. 16 and 74.

91. US Diplomatic and Consular Staff in Teheran Case (US v. Iran), ICJ Rep. (1980) p. 3 at p. 35, para. 74; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986) p. 65, para. 115; Brownlie, State Responsibility, op. cit. n. 87, pp. 157-158, 161.

92. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986) pp. 61-65, paras. 106, 108-111, 115.

93. E.g., when British mercenaries departed to fight with the FNLA and UNTTA in Angola, not only were they not prevented from departing but they were allegedly protected by Scotland Yard's Special Branch; Dumont, op. cit. n. 7, p. 16.

94. Oppenheim/Lauterpacht, op. cit. n. 66, vol. I, pp. 337-338, 364-369; Brownlie, Principles, op. cit. a 87; State Responsibility, op. cit. a 87, pp. 165-166.

95. E.g., hijacking and killing diplomatic personnel; see infra, n. 122. Under the relevant international conventions, States must either try alleged offenders themselves or extradite them.

96. Burchett and Roebuck, op. cit. n. 7; but see David, E., ‘La loi beige du ler aoflt 1979 concernant les services dans une année ou une troupe étrangère se trouvant sur le territoire d'un Etat étranger’, 16 RBDI (1981-1982) No. 1, p. 5.Google Scholar

97. Supra, n. 4.

98. Supra, n. 5.

99. Hoover, loc. cit n. 29, p. 327, citing Christian Science Monitor (8 June 1976) at p. 3, col. 3.Google Scholar

100. Art. 1.4 of Protocol I Additional to the Geneva Conventions of 12 August 1949; Roberts and Guelff, op. cit. n. 21, p. 390.

101. Art. 47.2 of Protocol I Additional to the Geneva Conventions of 12 August 1949 provides: ‘A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) 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; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.’ Roberts and Guelff, op. cit. n. 21, p. 414.

102. Eg., n.9.

103. Report, n. 9, (A/43/43), Third Revised Consolidated Negotiating Basis of a Convention Against the Recruitment, Use, Financing and Training of Mercenaries, Art. 7.

104. Ibid. Art. 2.

105. The nature of the responsibility incurred by an individual or a State is not dealt with expressly; Report, n. 9, (A/44/43), Draft Articles for an International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, Arts. 16 and 17. The text refers to the provisions of the law of armed conflict relating to the status of combatants or of prisoners of war; ibid. Art. 16.

106. Ibid. Art. 1.2(a). In cutting across the traditional boundaries between international and non-international armed conflicts and internal political violence, the Committee appears tacitly to be endorsing an analysis based on the obligation of non-intervention.

107. Ibid. Art. 1.1 (b) and 1.2(b).

108. Ibid. Art. 3.

109. Ibid. Art. 16.

110. Burchett and Roebuck, op. cit. n. 4; C.A.J. Coady, ‘Mercenary Morality’, and Scobie, L, ‘Mercenary Morality: A Reply to Professor Coady’, Conference papers, Association for Legal and Social Philosophy, Leicester (April 1990).Google Scholar

111. Report, n. 9, (A/44/43), Draft Articles for an International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, Art. 4.

112. Ibid. Art. 11; the relevant norms of international law are to be found in the due process guarantees in international human rights treaty texts and Art. 75 of Protocol I or Art. 6 of Protocol II, if either is applicable.

113. Ibid. Art. 10.3.

114. Ibid. Art. 9.

115. Ibid. Art. 15.

116. Ibid. Art. 12.

117. Ibid. Art. 6.

118. Ibid. Art. 5.1.

119. Ibid. Art. 10.2; see also Art. 8.

120. Ibid. Art. 18.

121. Certain delegations to the Ad Hoc Committee have been much exercised by the question of responsibility; Report, n. 9, (A/36/43) paras. 42-44; (A/37/43) paras. 20, 28 and 40; (A/38/43) paras. 74-77; (A/39/43) paras. 24-26; (A/40/43) paras. 103-105; (A/42/43) paras. 76-77. Only individuals are to be made criminally responsible under the domestic law that ratifying States will be required to enact. In view of the reluctance of States to enforce existing domestic law, the question of responsibility needs to be spelt out in the Convention; Burchett and Roebuck, op. cit. n. 7, Chs. 12, 13 and 15.

122. Under various international treaties, a State which does not extradite an alleged offender upon request is required to try him and, if he is convicted, to punish him (‘autpunire, aut dedere’); e.g., Geneva Conventions 1949, supra, n. 28; see also the Convention on the Prevention and Punishment of the Crime of Genocide; the International Convention on the Suppression and Punishment of the Crime of Apartheid; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention on the Suppression of Terrorism

123. Brownlie, Principles, op. cit. n. 87, pp. 303-304.

124. Supra, nn. 10 and 11 and accompanying text.

125. One of the alleged legal bases for the charges against the Angolan mercenaries; see Cesner, R.E. and Brant, J.W., 6 Cap. UL Rev. (1977) p. 339 at pp. 343–344Google Scholar; Mourning, loc. cit. n. 4, p. 602 and Hoover, loc. cit. n. 29, pp. 345-349. ‘Mercenarism’ was seen as part of the ‘minimum content’ of the Draft Code of Offences Against the Peace and Security of Mankind, ILC Yearbook 1984 Vol. n Part 2, p. 16, para. 59; this was on the basis that ‘in so far as the practice is used to infringe State sovereignty, undermine the stability of Governments or oppose national liberation movements, it constitutes an offence against the peace and security of mankind’; ibid. p. 17, para. 65(c)(iv). It was recognised that account had to be taken of the work of the Ad Hoc Committee; ibid.

126. Schwarzenberger, op. cit. n. 71, p. 501.

127. Examples of the difficulties which can arise, owing to the absence of any provisions agreed upon before the outbreak of a conflict, include the presence of Soviet military personnel, serving under contract in Iraq after 2 August 1990 and that of British military personnel, acting as advisers and trainers with the Kuwaiti forces and in Kuwaiti uniform, in Kuwait at the time of the invasioa.

128. Supra, nn. 39 and 40 and accompanying text.

129. Schwarzenberger, op. cit. n. 71, pp. 483-484.