United Nations

A/50/390


General Assembly

Distr. GENERAL  

29 August 1995

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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A/50/390
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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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