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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Mercenaries
[p.571] Article 47
-- Mercenaries
[p.572] General remarks
1789 The problem of mercenaries was first raised at the United Nations in1961 in connection with the Katangese secession. (1) Later on, in
1964, the Congolese government itself recruited mercenaries to
suppress an insurrection. When they were subsequently instructed to
lay down their arms, most of them refused to do so and openly
rebelled against the government (1967). The latter then called upon
the Security Council, as well as the Organization of African Unity
(OAU), to which it had already appealed in 1964. The Security
Council (2) and the Conference of Heads of State and Government of
the OAU requested States to prevent the recruitment of mercenaries in
their territory for the purpose of overthrowing the governments of
foreign States. The epilogue to this unhappy affair took place in
Rwanda, where the mercenaries eventually sought refuge. They were
repatriated with the help of the ICRC, on condition that they
undertook not to return to the African continent. (3)
1790 Since then, there has scarcely been any conflict involving military operations in which the presence of mercenaries has not
played a part in one way or another. Nevertheless, since 1968 the
United Nations General Assembly has adopted a firm position stating
that the practice of employing mercenaries against national
liberation movements is a criminal act, (4) and the mercenaries
themselves are criminals. In 1977 it was once more the Security
Council which adopted, by consensus, a resolution condemning the
recruitment of mercenaries with the objective to overthrow
governments of Member States of the United Nations. (5) Also in 1977
the Council of Ministers of the OAU adopted a Convention for the
Elimination of Mercenarism in Africa at its 29th session in
Libreville. (6) Based partly, as regards the definition of the term
"mercenarism" as such, on previous [p.573] drafts, (7) and, with the
exception of the problem of payment, on the definition of the term
"mercenary" given in the present Article 47
, this Convention was a
response to the concern of those who see the text of the Protocol as
paving "the way for the conclusion of more stringent regional
instruments", (8) on the assumption that Article 47
was only "the
first, and that other more satisfactory international texts would
follow". (9) In fact, this OAU Convention of 1977 was an attempt to
respond to the wishes of some delegations who had participated in the
Diplomatic Conference, wishes which could not be met by the demands
of the inevitable compromise. It condemns the mercenarism as such,
and not only the mercenary himself (Article 1
, paragraph 2). It
contains a pure and simple prohibition on according a mercenary the
status of combatant and prisoner of war (Article 3
). Finally, the
definition of the term "mercenary" diverges from that of the Protocol
on one point, as stated above. (10) At the time of writing, a draft
of an "international Convention against the recruitment, use,
financing and training of mercenaries" is being formulated within the
United Nations. (11)
1791 The draft presented by the ICRC at the Diplomatic Conference did not contain any provisions on mercenaries, which means that they
would have been treated like any other categories of combatants and
prisoners of war recognized by the Third Convention (Article 4
) and
by the Protocol (Article 42 of the draft), provided that they
complied with the conditions laid down. The Conference, which had
shown itself to be fairly liberal, as we have already seen in the
analysis of Articles 43
' (Armed forces) ' and 44
' (Combatants and
prisoners of war) ' regarding the granting of combatant or
prisoner-of-war status to members of the armed forces of a Party to
the conflict, came to a different conclusion on this matter, at least
in principle. Whatever conclusions one could actually draw from an
analysis of Article 47
, the concession made by this article is not
without importance, for it is not the task of humanitarian law to
make distinctions based on the motives which induce a particular
person to participate in an armed conflict. However, as things stand,
it could be said that this was no more and no less than reparation --
[p.574] it could be considered a moral reparation -- for past wrongs,
and a preventive measure against possible damage in the future.
Whatever the facts of the matter, no one, or virtually no one, at
first opposed the principle of this provision. (12)
1792 Article 47
was adopted by consensus at a plenary meeting. (13) The result of a compromise, it was approved by some unquestioningly,
though it was criticized by others, who considered it to be timorous,
incomplete or of doubtful orientation. (14) One delegation stated
that it did not belong in Protocol I, which has an essentially
humanitarian character. (15)
1793 Paragraph 1 deals with the status of the mercenary, while paragraph 2 is aimed at resolving this most difficult problem of the
definition of this category of combatants for the first time in
international law.
Paragraph 1 -- Status of the mercenary
1794 The refusal to confer prisoner-of-war status to those persons or categories of persons to whom this status should, in principle, be
accorded, has been the subject of a number of regrettable precedents
in the practice of States. (16) In general, humanitarian law
endeavours to extend the protection of the Third Convention to new
categories of combatants or to new situations, and not to refuse this
protection, as is evident from Articles 43
' (Armed forces), ' 44
' (Combatants and prisoners of war) ' and 45
' (Protection of persons
who have taken part in hostilities) ' of the Protocol. The provision
under consideration here goes the other way because of the shameful
character of mercenary activity.
[p.575] 1795 However, by providing that a mercenary "shall not have the right" to be a combatant or a prisoner of war, the Conference still resisted
the most extreme demands. In fact, many delegations wished the
wording to be more stringent, viz., that the mercenary "shall not be
accorded" this status. (17) This would have led to a surprising
situation for a humanitarian text, since any Contracting Party
according such status to a mercenary, would then have violated the
Protocol. The result would have been all the more shocking, as the
problem was broached in the Protocol in a wider context than that of
other international texts relating to the same subject. In the
Protocol the problem of mercenaries is actually dealt with without
taking into account the cause they serve, which is not the case in
the United Nations resolutions. (18) Thus, like Article 46
' (Spies) ' concerning spies, the present provision permits a Party
to the Protocol to deny the status of combatant and prisoner of war
to a mercenary; it does not oblige the Party to deny such status,
irrespective of the cause served. (19)
1796 The effect of the denial of the status of combatant and prisoner of war in case of capture is to deprive the mercenary of the
treatment of prisoner of war as laid down in the Third Convention,
and to make him liable to criminal prosecution. Such prosecution can
be instigated both for acts of violence which would be lawful if
performed by a combatant, in the sense of the Protocol, and for the
sole fact of having taken a direct part in hostilities (paragraph 2(b)). This is where the crucial question of guarantees arises.
1797 Deprived of the status of combatant and prisoner of war, a mercenary is a civilian who could fall under Article 5
of the fourth
Convention. It is precisely this article which removes an important
part of the guarantees from any person under legitimate suspicion of
being engaged in an activity endangering State security. (20) Some
delegates, who were anxious that Article 47
might be given a
[p.576] dissuasive character, wished to leave it at that. However, it
still remained necessary for the mercenary status of the person
concerned to be established on the basis of the definition of
paragraph 2. Meanwhile, i.e., pending determination of the status of
such a person by a competent tribunal (Third Convention, Article 5
,
paragraph 2; Protocol, Article 45
-- ' Protection of persons who have
taken part in hostilities, ' paragraphs 1 and 2), he is presumed to
be a prisoner of war (Protocol, Article 45
-- ' Protection of persons
who have taken part in hostilities, ' paragraph 1) and is
consequently protected by the Third Convention (Article 5
, paragraph
2).
1798 If the tribunal comes to the conclusion that the person concerned is a mercenary in the sense of paragraph 2 of Article 47
, Article 75
' (Fundamental guarantees) ' applies, and his rights of communication
continue to be guaranteed, even in occupied territory,
notwithstanding the provisions of Article 5
of the fourth Convention
(Article 45
, paragraph 3, of the Protocol). It is regrettable that
this qualification is not expressly included in the text of Article
47
. (21) However, it is understood, as the Rapporteur's report
reveals that
"although the proposed new article makes no reference to the fundamental protections of Article 65 [75
], it was understood
by the Working Group that mercenaries would be one of the
groups entitled to the protections of Article 65 [75
] [
]" (22)
This interpretation was expressly accepted at a plenary meeting by the representative of Nigeria. (23) Moreover, it was confirmed by a
large number of statements, (24) and it should therefore be
considered that the question has been unequivocally settled,
particularly as it directly ensues from the text of Article 45
' (Protection of persons who have taken part in hostilities). ' As
regards the above-mentioned OAU Convention, Article 11
of this states
that mercenaries "shall be entitled to all the guarantees normally
granted to any ordinary person by the State on whose territory he is
being tried". Obviously the guarantees laid down by the International
Covenant on Civil and Political Rights, and all other applicable
instruments relating to human rights, also continue to apply in the
case of participation in this agreement.
1799 However, the solution to this problem introduced by the Conference, and Article 47
in its entirety, continued to be
criticized for another reason. Several delegations from various
quarters declared that the prohibition on using mercenaries should
have been based on a prohibition on recruiting and enlisting
mercenaries, and therefore apply at the
lev
el of States, and not, or
not solely, at [p.577] the level of individuals, (25) possibly by
means of a special treaty. Some delegations expressed the wish that
"the new article would encourage governments which had not yet
prepared rules of criminal law prohibiting the recruitment, training,
formation and commitment of mercenaries to take the necessary
legislative action in order to eliminate completely the crime of the
mercenary system". (26)
1800 One last point deserves a mention. Article 47
forms part of Protocol I, which deals only with international armed conflict to the
exclusion of armed conflicts which are not of an international
character. Yet the presence of "mercenaries" is frequently noted
precisely in armed conflicts with a non-international character. In
case of capture, these mercenaries undeniably benefit from the
protection of Article 3
of the Conventions, and the corresponding
provisions of Protocol II, when the latter is applicable, as well as
from the provisions of international human rights legislation, when
these apply. In fact, the person concerned will not normally be
prosecuted on account of his mercenary status, but for endangering
State security. (27)
Paragraph 2 -- Definition of mercenary
1801 There are few words which suffer greater misuse these days than the term mercenary. Whenever an armed opposition movement arises
against a particular cause, the adversary is immediately defined as a
mercenary. In the long run such inexact use of language could
constitute a danger with regard to the respect of humanitarian law
applicable in cases of international armed conflict, and for this
reason alone, it was perhaps useful for the Diplomatic Conference to
concern itself with this concept.
1802 Mercenaries have existed since time immemorial. (28) Nowadays mercenaries only represent one section of the vast category of
international volunteers who are defined lato sensu as individuals
whose voluntary personal membership of an armed force involves
certain elements of a foreign character. (29) In principle, what
[p.578] distinguishes a mercenary from an international volunteer is
the cause and the motive which lead him to join up, although this is
not always easy to determine. (30) We will show that the present
provision makes the pursuit of monetary gain virtually the
determining factor in defining a mercenary, once the other conditions
of the definition are fulfilled.
1803 However, before proceeding to examine these conditions, it is appropriate to recall that although, under the terms of the
conventional law of neutrality, "corps of combatants must not be
formed nor recruiting agencies opened on territory of a neutral
Power", (31) the responsibility of this Power "is not engaged by the
fact of persons crossing the frontier separately to offer their
services to one of the belligerents"; (32) as for the individual
concerned, he "shall not be more severely treated by the belligerent
as against whom he has abandoned his neutrality than a national of
the other belligerent State could be for the same act", (33)
regardless of the motives, pecuniary or otherwise, which provoked his
actions. This traditional rule no longer automatically applies under
the terms of paragraph 1 to a mercenary as defined in the present
provision, but this holds true only for such a mercenary.
1804 The various conditions enumerated sub-paragraphs (a) to (f) are cumulative, and should consequently all be met for the person
concerned to qualify as a mercenary.
' Sub-paragraph (a) -- Being especially recruited locally or abroad in order to fight in an armed conflict '
1805 This condition excludes volunteers who enter service on a permanent or long-lasting basis in a foreign army, whether as a
result of a purely individual enlistment (French foreign Legion,
Spanish Tercio) or an arrangement concluded by their national
authorities (for example, the Nepalese Ghurkhas in India, the Swiss
Guards of the Vatican). Thus a volunteer who has been specially
recruited locally or abroad in order to fight in an armed conflict
can be considered as a mercenary in the sense of Article 47
, provided
that the other conditions mentioned below [p.579] are also met; not a
volunteer who is a regular member of the armed forces of a
belligerent irrespective of the particular armed conflict in which he
is participating (see also below, sub-paragraph (e)).
' Sub-paragraph (b) -- He does, in fact, take a direct part in the hostilities '
1806 Only a combatant, and a combatant taking a direct part in hostilities, can be considered as a mercenary in the sense of Article
47
. Consequently this condition excludes foreign advisers and
military technicians, who are found in numerous countries nowadays,
even when their presence is motivated by financial gain, as far as
they are concerned (sub-paragraph (c) below). The increasingly
perfected character of modern weapons, which have spread throughout
the world at an ever-increasing rate, requires the presence of such
specialists, either for the selection of military personnel, their
training or the correct maintenance of the weapons. As long as these
experts do not take any direct part in the hostilities, (34) they are
neither combatants nor mercenaries, but civilians who do not
participate in combat.
' Sub-paragraph (c) -- He 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 ranks and functions in the
armed forces '
1807 For the protagonists of this article, this is the crux of the matter. In contrast to a volunteer who is moved by a noble ideal, the
mercenary is considered to offer his services to the highest bidder,
since he is essentially motivated by material gain. The highest
bidder will normally be found on the richest side. However, as all
soldiers of all armies receive a remuneration for maintaining
themselves and their families, it was necessary, in order to be
consistent, to specify that this remuneration should be substantially
higher than that of the members of the army. (35)
1808 Finally, "recognizing that some ranks and functions in armed forces are likely to be paid more than others", the text provides
for:
"an objective test to help determine motivations of persons serving with the armed forces of a Party to the conflict;
such persons may not be considered to be motivated
essentially by the desire for private gain unless they are
promised compensation substantially in excess of that
promised or paid to [p.580] combatants of similar rank and
function in the armed forces of that Party. Thus, pilots
would be judged by the same standards of compensation as
other pilots, not by the standard of infantrymen". (36)
1809 However, this solution gave rise to a number of criticisms. In the first place, because it is far from clear that all mercenaries
are essentially motivated by private gain, at least by immediate
material gain. (37) Moreover, it was argued that this formulation
would encourage the appearance of a new category of mercenaries,
those who base their actions on ideology. (38) In the third place,
"a Party to a conflict would be hard put to it to prove generous remuneration, since mercenaries' wages were paid
either in their own countries or into bank accounts in other
countries". (39)
However, since the intention in the Protocol, after careful consideration, was, on the one hand, to make a distinction between
mercenaries pursuing their own "interests" and selfless international
volunteers, and on the other hand, to disregard the particular cause
served by the mercenary, and even the fact that he uses his skill to
illegal ends, no other path was possible. (40)
1810 In conclusion, "mercenaries" who fulfil all the other conditions of Article 47
, but who receive a salary identical to that of the
combatants of a similar rank and function of the army in which they
are serving, are not mercenaries in the sense of the Protocol, even
if they are engaged in combat against a Member State of the United
Nations in a so-called war of aggression, or against a national
liberation movement.
' Sub-paragraph (d) -- He is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the
conflict '
1811 Whether or not one is sympathetic to the cause that they are serving, nationals of a Party to the conflict who voluntarily engage
in combat in the ranks of that Party, are not mercenaries in the
sense of the Protocol. (41)
1812 In many countries the enlistment into the armed forces of residents (i.e., foreigners) is expressly provided for, and even
compulsory. (42) Obviously this does not imply the right to force a
prisoner of war or a person protected by the Fourth
[p.581] Convention to serve in the armed forces of an enemy power
(Third Convention, Article 130
; fourth Convention, Article 147
,
"grave breaches"). However, for foreign residents in the true sense
of the word, the Rapporteur explains that: "it was felt that persons
in these groups should not be placed at risk of being considered
mercenaries". (43)
' Sub-paragraph (e) -- He is not a member of the armed forces of a Party to the conflict '
1813 Perhaps with some justification it has been said that this clause made the definition of mercenaries completely meaningless. (44) In
fact, it is sufficient for States which employ them, to make them
members of their armed forces for them no longer to be mercenaries.
Nevertheless, this provision was necessary, because many States
enlist foreigners in their armed forces on a regular basis, and
without making these into corps as described in sub-paragraph
(a). (45) However, such persons are not always specially recruited to
take part in a particular armed conflict (sub-paragraph (a)), and
this could form an element distinguishing those foreigners who are
"regularly" enlisted and those who are enlisted as mercenaries,
although this possibility is often expressly provided for in case of
war. (46) As each of the conditions listed in sub-paragraphs (a) to
(f) must be present for the definition to be met, and each State has
control over the composition of its armed forces subject to the
provisions of Article 43
' (Armed forces), ' (47) it is clear that
enlistment in itself is sufficient to prevent the definition being
met.
' Sub-paragraph (f) -- He 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 '
1814 A mercenary is a volunteer who, at least officially, enlists on his own account and not on behalf of a third State. Thus there is no
question of qualifying corps of troops who have been sent by certain
States to different parts of the world for one reason or another, as
mercenaries, even if they consist of volunteers who are well rewarded
and who in case of need are called upon to take a direct part in
hostilities.
' J. de P. '
NOTES
(1) [(1) p.572] Security Council Resolutions 161A of 21
February 1961, and 169 of 24 November 1961, and General
Assembly Resolution 1599 (XV) of 15 April 1961, calling
for the withdrawal of mercenaries from the Congo;
(2) [(2) p.572] Resolutions 239 of 10 July 1967, and 241 of 15 November 1967;
(3) [(3) p.572] ICRC annual report 1967, pp. 29-35, and 1968, pp. 20-21;
(4) [(4) p.572] Resolution 2465 (XXIII) of 20 December 1968, confirmed in particular by Resolutions 2548 (XXIV) of 11
December 1969, 2708 (XXV) of 14 December 1970, 3103
(XXVIII) of 12 December 1973, 33/24 of 8 December 1978.
See also A.A. Yusuf, "Mercenaries in the Law of Armed
Conflict", in A. Cassese (ed.), ' The New Humanitarian Law
of Armed Conflicts, ' op. cit., pp. 119-121;
(5) [(5) p.572] Resolution 405 of 16 April 1977;
(6) [(6) p.572] Initialled by the representatives of the OAU States at the 14th Summit Conference (Libreville, July
1977), entered into force on 22 April 1985. On this action
by the United Nations and the Organization of African
Unity, see in particular A. Cassese, "Mercenaries: Lawful
Combatants or War Criminals?", 40 ' ZaöRV, ' No. 1, 1980,
pp. 1-30, and M. Riley, "Mercenaries and the Rule of Law",
17 ' International Commission of Jurists, The Review, '
December 1976, pp. 51-57, as well as E.I. Nwogugu, "Recent
Developments in the Law Relating to Mercenaries", XX-1-2
' RDPMDG, ' 1981, p. 9;
(7) [(7) p.573] Draft Convention on the Elimination of Mercenarism in Africe, presented by a committee of experts
of the OUA at the Conference of Heads of State, which met
in Rabat in 1972, and Draft Convention on the Prevention
and Suppression of Mercenarism, drawn up by an
international investigation committee invited to be
present at the trial of thirteen mercenaries who had
participated in the civil war in Angola, in Luanda in
1976;
(8) [(8) p.573] O.R. XV p. 193, CDDH/III/SR.57, para. 22;
(9) [(9) p.573] Ibid., p. 201, para. 51; also see O.R. VI, pp. 156-158, CDDH/SR.41, and for the Rapporteur's report, O.R.
XV, pp. 510-511, CDDH/III/369;
(10) [(10) p.573] Let us recall that the Definition of aggression adopted by the United Nations General Assembly
(Res. 3314 (XXIX) of 14 December 1974, adopted without a
vote) includes in Article 3, sub-para. (g), amongst the
acts which qualify as an act of aggression: "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" when they are of such gravity
as to amount to the acts listed in the preceding sections
of the same article, or "substantial involvement" in such
acts. It is not the mercenary who is incriminated here,
but the State which permits the sending of mercenaries;
(11) [(11) p.573] See in particular, "The Report of the Ad Hoc Committee on the Drafting of an International Convention
against the Recruitment, Use, Financing and Training of
Mercenaries", General Assembly Official Documents, 39th
session, supplement No. 43 (A/39/43) (as regards the
definition of mercenaries in this draft, see infra, note
18);
(12) [(12) p.574] This does not mean that there were no problems. Independently of the deliberations of the
Conference of Government Experts (' CE 1972, Report ',
vol. I, p. 28, para. 0.23), it was during the long general
debate of the second session of the Conference relating to
Articles 42 and 42 bis (the present Articles 44 and 45),
that the problem of mercenaries was broached for the first
time by many delegations who were not prepared to
recognize this category of combatants (O.R. XIV, pp.
342-343, CDDH/III/SR.34; p. 344, para. 56; p. 348, para.
75; CDDH/III/SR.35, p. 356, para. 6; p. 360, para. 18; pp.
361-362, para. 24; p. 362, para. 26; p. 369, para. 63; p.
370, para. 68; CDDH/III/SR.36, pp. 373-374, paras. 1-4; p.
375, para. 10; p. 377, para. 19; p. 381, para. 34; p. 383,
para. 39. At the third session the representative from
Nigeria presented a draft of Article 42 quater in the
Working Group (O.R. III, p. 192, CDDH/III/GT/82) which,
although it met with hardly any objections in principle,
did not gain unanimous approval (O.R. XV, pp. 112-113,
CDDH/III/SR.49, paras. 24-31), and, at the end of the
session the Rapporteur of Committee III presented an
extensive report on the discussions of the Working Group
on this subject (ibid., pp. 404-407, CDDH/236/Rev. 1,
paras. 95-108). The problem was then taken up at the
fourth session, but with a new approach by way of private
consultations between the representative of Nigeria with
other delegations. The new draft which emerged from these
consultations, the present Article 47, was then adopted
without any difficulty by Committee III (ibid., pp.
189-190, CDDH/III/SR.57, paras. 4-7; and pp. 510-511,
CDDH/III/369). During the explanations of vote in the
Committee, only two delegations indicated that they would
have abstained, if the article had been put to the vote;
see ibid., pp. 191-202, CDDH/III/SR.57, and particularly
p. 195, para. 28 and p. 201, para.55);
(13) [(13) p.574] O.R. VI, p. 156, CDDH/SR.41;
(14) [(14) p.574] Ibid., pp. 156-161, and pp. 175-176, 182, 184-185, 191-194, 197-198, 202-204;
(15) [(15) p.574] Ibid., p. 158, para. 82;
(16) [(16) p.574] This was the case during the Second World War (see 12 ' Law Reports, ' The German High Command Trial),
and afterwards (see ' Commentary III, ' pp. 413-414);
(17) [(17) p.575] Cf. the initital proposal of Nigeria, O.R. XV, p. 112, CDDH/III/SR.49, para. 24;
(18) [(18) p.575] Thus Resolution 3103 (XXVIII) of the General Assembly only incriminates mercenarism to the extent that
it is employed by colonialist or racist governments or
governments of alien occupation against a national
liberation movement. The text of the draft UN convention
contains a strict version: Mercenaries shall in no case be
legitimate combatants and shall not be entitled to
prisoner-of-war status (Art. 3). Moreover, it proposes
either to take over literally the definition of mercenary
given in the Protocol, or to specify that the term
"mercenary" means any person specially recruited in order
to engage in violence against a (foreign) State or its
government (Art. 2). However, other proposals were also
advanced (see Report of the Ad Hoc Committee of the
General Assembly, 39th session, supplement No. 43
(A/39/43, p. 28));
(19) [(19) p.575] On this point, see the remarks of E. David, ' Mercenaires et volontaires internationaux en droit des
gens, ' Brussels University, 1978, p. 392. See also, by
the same author, "Les mercenaires en droit international
(Développements récents)", 13 RBDI, No. 1-2, 1977, p. 197;
(20) [(20) p.575] Account should be taken, however, of the possible diplomatic protection of the State of which the
mercenary is a national. Article 4, paragraph 2, of the
Fourth Convention does in fact provide that "nationals of
a neutral State who find themselves in the territory of a
belligerent State [...] shall not be regarded as protected
persons while the State of which they are nationals has
normal diplomatic representation in the State in whose
hands they are". They are not covered by Article 5 of the
Fourth Convention;
(21) [(21) p.576] Several delegations openly deplored this at the plenary meeting; see O.R. VI, p. 158, CDDH/ SR.41,
paras. 82 and 88; p. 160, para. 98; p. 161, para. 105; pp.
175, 182, 194-195, 198. The same happened in Committee
III; see O.R. XV, p. 191, CDDH/III /SR.57, para. 14; p.
194, paras. 25; p. 195, para. 28; p. 198, para. 37; p.
199, para. 41; p. 202, para. 56;
(22) [(22) p.576] O.R XV p. 511 CDDH/III/369;
(23) [(23) p.576] O.R. VI p. 157 CDDH/SR.41, para. 81;
(24) [(24) p.576] For the plenary meeting, see ibid., p. 159, para. 92; p. 160, paras. 97-98; pp. 175-176, 192, 194-195;
(25) [(25) p.577] In this sense, see in the plenary meeting, ibid., p. 158, paras. 82 and 85; p. 160, para. 100; pp.
189, 193-194, 197-198, 202-204, and for the Rapporteur's
report, O.R. XV, p. 454, CDDH/ 407/Rev.1, para. 24;
(26) [(26) p.577] O.R. XV, p. 194, CDDH/III/SR.57, para. 24; p. 198, para. 38; see also the Declaration on Principles of
International Law concerning Friendly Relations and
Co-operation among States (Res. 2625 (XXV));
(27) [(27) p.577] For example, in 1971 in Khartoum, Rolf Steiner, who had German nationality and had helped the
Sudanese rebellion, was considered as a mercenary, though
he was prosecuted and sentenced on quite different grounds
relating to State security. Since then the intervention of
mercenaries has emerged in particular in the Comoros,
Angola, Benin, the Seychelles etc;
(28) [(28) p.577] See E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., pp. 5 ff.; O. Tandon,
' Legal and Political Status of Mercenaries in History and
in the Contemporary World,' dissertation, Dar es Salaam,
1978, pp. 22 ff.; P. Joenniemi, "Two models of
Mercenarism: Historical and Contemporary", ' Instant
Research on Peace and Violence ' (Tampere Peace Research
Institute), vol. 7, No. 3-4, 1977, pp. 184-196;
(29) [(29) p.577] Cf. E. David, ' Mercenaires et volontaires internationaux..., op. cit. ', p. 2; for contemporary
examples, ibid., pp. 16-21; see also O. Tandon, op. cit.,
pp. 52-90; T. Boumedra, "International Regulation of the
Use of Mercenaries in Armed Conflicts", XX-1-2 RDPMDG,
1981, pp. 35-87, provides a contemporary view of the
applicable law on this subject;
(30) [(30) p.578] Cf. E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., p. 3: "les mobiles qui
poussent un individu à s'engager dans une force étrangère
sont variables: l'argent, l'esprit de "baroud", le goût de
l'aventure, la "fuite" psychologique, les instincts de
destruction, l'"idéalisme politique" peuvent être énumérés
sans qu'il soit toujours facile de discerner la motivation
déterminante". ("The motives which lead an individual to
enlist in a foreign force are many and varied: money,
fighting spirit, a sense of adventure, psychological
'escapism', a destructive instinct, 'political idealism'
can all be listed, though it is by no means always easy to
identify the determining factor.) (translated by the
ICRC);
(31) [(31) p.578] The Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in War on Land of
18 October 1907, Article 4. This rule is nowadays also
confirmed by the Declaration on Principles of
International Law concerning Friendly Relations and
Co-operation among States (Res. 2625 (XXV) and by the
Definition of aggression (Res. 3314 (XXIX));
(32) [(32) p.578] Hague Convention V, Article 6; this article, which upholds the principle of individual liberty, is
nowadays criticized by several authors. Cf. E. David,
' Mercenaires et volontaires internationaux..., ' op.
cit., pp. 164 ff.;
(33) [(33) p.578] Hague Convention V, Article 17, para. 2;
(34) [(34) p.579] On the meaning of this expression, see also supra, ad Art. 43, para. 2, p. 516;
(35) [(35) p.579] It is in particular on this point that the above-mentioned draft Convention of the United Nations
(see supra, notes 11 and 18) diverges from the text of the
Protocol as regards the definition of mercenary. The UN
text stops after the words "private gain", while the
Protocol only forbids what could be considered as
unjustified enrichment. It was probably the difficulty of
furnishing proof of such unjustified enrichment which led
the drafters to adopt such a strict attitude (cf. O.R. XV,
p. 193, CDDH/III/SR.57, para. 21, and O.R. VI, p. 160,
CDDH/SR.41, para. 101);
(
36) [(36) p.580] Report of the Rapporteur, O.R. XV, p. 455,
CDDH/407/Rev. 1, para. 26, and p. 511, CDDH/III/369;
(37) [(37) p.580] Cf. supra, note 30, p. 577; see also O.R. XV, p. 200, CDDH/III/SR.57, para. 47;
(38) [(38) p.580] Ibid., p. 193, para. 21;
(39) [(39) p.580] Ibid;
(40) [(40) p.580] The United States draft Convention not only deals with mercenaries, but also with mercenarism, which
it considers as a crime against international peace and
security (Art. 10);
(41) [(41) p.580] For example, the Meos recruited during the conflict in Viet Nam from the country's mountain tribes
(See O. Tandon, op. cit., p. 66). Obviously the same
applies to nationals who are regular members of the army
of their country, whether this is a professional army or
not, even if this army is engaged against a national
liberation movement;
(42) [(42) p.580] For examples, see E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., pp. 293- 295;
(43) [(43) p.581] (43) O.R. XV, p. 511, CDDH/III/369, and pp. 454-455, CDDH/407/Rev.1, para. 25;
(44) [(44) p.581] O.R. XV, p. 406, CDDH/236/Rev. 1, para. 102;
(45) [(45) p.581] For examples, see E. David, ' Mercenaires et volontaires internationaux... ', op. cit., pp. 202 ff;
(46) [(46) p.581] Ibid., p. 293;
(47) [(47) p.581] In the sense of Article 43, anyone who is not a member of the armed forces is not a combatant and does
not have the right to participate directly in hostilities.
However, one could conceive of an act of "aggression"
(cf., supra, note 10), carried out by mercenaries who are
not members of the armed forces of the "aggressor";
GVALNWB2/ICRC
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