Practice Relating to Rule 108. Mercenaries

Additional Protocol I

Article 47(2) of the 1977 Additional Protocol I defines mercenaries as any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 47(2). Article 47 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 156.

OAU Convention against Mercenarism

Article 1 of the 1977 OAU Convention against Mercenarism defines a mercenary as:

Any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does in fact take a direct part in the hostilities;

c) is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

e) is not a member of the armed forces of a party to the conflict; and

f) is not sent by a state other than a party to the conflict on official mission as a member of the armed forces of the said state.

Convention for the Elimination of Mercenarism in Africa, adopted by the OAU Council of Ministers at its 29th Session, Res. 817 (XXIX), Libreville, 3 July 1977, OAU Doc. CM/817 (XXIX) Annex II Rev.3 (1977), Article 1.

UN Mercenary Convention

Article 1 of the 1989 UN Mercenary Convention defines a mercenary as:

1. Any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) is motivated to take part in the hostility essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;

(d) is not a member of the armed forces of a party to the conflict; and

(e) 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.

2. A mercenary is also any person who, in any other situation:

(a) is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:

(i) overthrowing a Government or otherwise undermining the constitutional order of a State; or

(ii) undermining the territorial integrity of a State;

(b) is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation;

(d) has not been sent by a State on official duty; and

(e) is not a member of the armed forces of the State on whose territory the act is undertaken.

International Convention against the Recruitment, Use, Financing and Training of Mercenaries, adopted by the UN General Assembly, Res. 44/34, 4 December 1989, Article 1.

II. Other Instruments

ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)

Article 23(2) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind defines a mercenary as any individual who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;

(d) is not a member of the armed forces of a party to the conflict; and

(e) 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.

Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 23(2).

III. Military Manuals

Argentina

Argentina’s Military Manual (1989) states:

A mercenary is a person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.09(2).

Australia

Australia’s Defence Force Manual (1994) states:

A mercenary is any person who:

a. is specially recruited locally or abroad in order to fight in an armed conflict;

b. takes part in hostilities;

c. is motivated to take part in hostilities essentially for the desire for private gain and is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party;

d. is neither a national of a party to the conflict nor a resident of the territory controlled by a party to the conflict;

e. is not a member of the armed forces of a party to the conflict; and

f. has not been sent by a State which is not Party to the conflict on official duty as a member of its armed forces.

Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, Glossary.

Australia

Australia’s Commander’s Guide (1994) states:

A mercenary is any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, Glossary, p. xxiii.

Australia

Australia’s LOAC Manual (2006) defines “mercenary” as follows:

A mercenary is any person who:

a. is specially recruited locally or abroad in order to fight in an armed conflict;

b. takes part in hostilities;

d. is neither a national of a party to the conflict nor a resident of the territory controlled by a party to the conflict;

e. is not a member of the armed forces of a party to the conflict; and

f. has not been sent by a state which is not party to the conflict on official duty as a member of its armed forces.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, Glossary, p. 4.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Belgium

Belgium’s Law of War Manual (1983) states:

In order to be qualified as a mercenary, all the following conditions have to be fulfilled:

a) being specially recruited locally or abroad in order to fight in an armed conflict;

b) taking a direct part in the hostilities;

c) being motivated to take part in the hostilities essentially by the desire for private gain and, in fact, being promised by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

d) being neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) not being a member of the armed forces of a Party to the conflict; and

f) not having been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 23.

Cameroon

Cameroon’s Instructor’s Manual (1992) defines mercenaries as “persons who are specially recruited at home or abroad to fight for pay during an armed conflict”.

Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, pp. 36 and 60.

Cameroon

Cameroon’s Instructor’s Manual (2006), under the heading “Non-Combatants”, states: “A mercenary is a person who is specially recruited at home or abroad to fight for remuneration during an armed conflict.”

Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 112, § 383; see also p. 153, § 443 and p. 179, § 491.A.

The manual also states:

A mercenary refers to any person:

a) who is specifically recruited in a State party to a conflict or abroad to fight in an armed conflict and who effectively and directly takes part in hostilities;

b) who is not a national of a party to the conflict, nor resident of the territory controlled by a party to the conflict, nor a member of the armed forces of a party to the conflict.

His essential motivation is personal gain which is generally superior to the remuneration granted to members of the armed forces of the State party which has recruited him who have a similar rank and fulfil similar functions.

Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 211, § 512.

Canada

Canada’s LOAC Manual (1999) states:

A mercenary is a person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-4, § 30.

Canada

Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:

1. A mercenary is any person who:

a. is specially recruited locally or abroad in order to fight in an armed conflict;

b. does, in fact, take a direct part in the hostilities;

c. is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party;

d. is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

e. is not a member of the armed forces of a party to the conflict; and

f. has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 319.1.

Chad

Chad’s Instructor’s Manual (2006) states:

Mercenaries are people who take part in a conflict for personal gain and who do not belong to the armed forces of a party to the conflict or who have not been sent on an official mission by a country.

They enrol voluntarily in the armed forces of a belligerent State of which they are not nationals. … The use of mercenaries is not prohibited in the current state of international law.

Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 55; see also p. 42.

Côte d’Ivoire

Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):

I.7. Mercenaries

By “mercenaries”, one means any person who, acting individually or within an established unit,

- is specially recruited locally or abroad in order to fight in an armed conflict;

- does, in fact, take a direct part in the hostilities;

- is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

- is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

- is not a member of the armed forces of a Party to the conflict;

- 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 (e.g. temporarily seconded or for training).

Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 30; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 24.

France

France’s LOAC Manual (2001) states:

A mercenary is a person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 81.

Germany

Germany’s Military Manual (1992) defines a mercenary as “any person who is motivated to take a direct part in the hostilities by the desire for private gain without being a national or a member of the armed forces of a party to the conflict (Art. 47 [of the 1977 Additional Protocol I]). In addition, the provisions of the 1989 Mercenary Convention apply.”

Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 303.

Kenya

Kenya’s LOAC Manual (1997) defines a mercenary as “a person who takes part in the conflict for private gain, who is not a member of any organized armed forces of a Party to the conflict and has not been sent on official duty by a country not involved in the conflict”.

Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 9.

Netherlands

The Military Manual (1993) of the Netherlands states:

A mercenary shall not have the right to be a combatant or a prisoner of war.

Mercenaries are defined in the humanitarian law of war as persons who fulfil all of the conditions listed below.

They must:

-Be specially recruited to fight in an armed conflict.

-Be motivated mainly by the desire for private gain and be paid substantially better than the soldiers of the armed forces which hire them.

-In fact take a direct part in hostilities.

-Neither be a national of a party to the conflict nor a resident of territory controlled by a party to the conflict.

-Not be a member of the armed forces of a party to the conflict.

-Not be sent by a State which is not a party to the conflict on official duty.

The mere fact that persons of another nationality act as volunteers in the armed forces of a State does not mean that they are mercenaries. These volunteers must simply be considered as combatants. In order to avoid any misunderstanding: The Gurkha units of the British army form a regular part of the British armed forces. The soldiers of the French Foreign Legion are not mercenaries either.

Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-6.

[emphasis in original]

Netherlands

The Military Manual (2005) of the Netherlands states:

… The humanitarian law of war defines mercenaries as people who have to meet all the following conditions. They must:

- be specially recruited to fight in an armed conflict;

- be motivated by personal gain and be considerably better paid than members of the armed forces to which they hire their services;

- be actually and directly involved in hostilities;

- not be subjects of a party to the conflict nor residents of a territory controlled by a party to the conflict;

- not be members of the armed forces of a party to the conflict;

- not be sent on an official mission by a State which is not a party to the conflict.

Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0323.

To further illustrate the above statement, the manual states:

The fact that persons of other nationalities volunteer to join the armed forces of a State does not make them mercenaries. Such volunteers must normally be treated as combatants. To dispel any misunderstanding: the Gurkha units in the British Army are regular members of the British armed forces. The members of the French Foreign Legion, likewise, are not mercenaries.

It does happen that companies offer military expertise for hire: Executive Outcomes Pty. Ltd. is one known example. In 1997 the Government of Papua New Guinea (PNG) hired a company of British origin, Sandline International, to train PNG’s armed forces for action against the Bougainville Revolutionary Army and to support them in that action. Whether to class personnel of such companies as mercenaries depends partly on how far they meet the conditions listed in point 0323.

Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 36.

New Zealand

New Zealand’s Military Manual (1992) states:

A mercenary is a person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict;

b) does, in fact, take a direct part in the hostilities;

d) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 807.

Peru

Peru’s IHL Manual (2004) defines the term “mercenary” as: “Any person who voluntarily enrols in the combatant armed forces of a belligerent State of which he is not a national, motivated by the desire for private gain.”

Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.

Peru

Peru’s IHL and Human Rights Manual (2010) defines “mercenary” in its Glossary of Terms as: “Any person who voluntarily enrols in the combatant armed forces of a belligerent State of which he is not a national, motivated by the desire for private gain.”

Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 409.

Russian Federation

The Russian Federation’s Regulations on the Application of IHL (2001) states:

mercenaries means persons specially recruited and taking a direct part in hostilities with the purpose of obtaining private gain. While doing so, they are neither nationals of a party to the conflict, nor residents of the territory controlled by a party to the conflict. Mercenaries are not members of the armed forces of the belligerent parties and they have not been sent by a state which is not a party to the conflict on official duty as members of its armed forces. Military instructors or advisers who have been officially sent by one state to another state in order to render assistance in the development of its armed forces shall not be considered mercenaries unless they take a direct part in hostilities.

Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.

South Africa

South Africa’s LOAC Teaching Manual (2008) states:

Mercenaries ([1977] Additional Protocol I Article 47)

- Is specially recruited locally or abroad in order to fight in an armed conflict;

- Does, in fact, take part in hostilities;

- Is motivated to take part in hostilities essentially by the desire for private gain and, in fact, is promised by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

- Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

- Is not a member of the armed forces of a Party to the conflict; and

- Has not been sent by a State that is not a Party to the conflict on official duty as a member of its armed forces.

South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 38–39.

Spain

Spain’s LOAC Manual (1996) states:

Mercenaries are those who are especially recruited to fight in armed conflict and who take direct part in armed hostilities essentially by the desire for private gain and are, in fact, promised by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party. Members of the Armed Forces of a party to the conflict, nationals of a party to the conflict, or those who have been sent by a State which is not a Party to the conflict on official duty as members of its armed forces are not considered mercenaries. Those who take part in peace operations will not be considered mercenaries.

Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.4.b.

Spain

Spain’s LOAC Manual (2007) states:

Mercenaries are those persons specially recruited to take a direct part in the hostilities, motivated essentially by the desire for private gain and promised material compensation substantially in excess of that paid to combatants of similar ranks and functions in the armed forces. Members of the armed forces of a party to the conflict, the nationals of a party to the conflict and those sent by a State that is not a party to the conflict on official duty as members of its armed forces are not considered mercenaries. Those taking part in peace operations are never considered mercenaries.

Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.3.a.(8); see also § 1.4.b.

Ukraine

Ukraine’s IHL Manual (2004) states:

Mercenaries are persons who are specially recruited and take part in the hostilities in the desire for private gain. They are neither nationals of a Party to the armed conflict nor residents of territory controlled by such a Party. Mercenaries are not members of the armed forces of the belligerent Parties.

Military instructors and advisors officially sent by a State to assist in building armed forces of another State are not mercenaries provided they do not take part in hostilities personally.

Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.25.2.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Pamphlet (1981) states: “A mercenary is a person who takes part in the conflict for private gain, who is not a member of any organised armed forces and has no connection with the countries involved in the conflict.”

United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 10, § 7.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Manual (2004) states:

A mercenary is any person who:

a. is specially recruited locally or abroad in order to fight in an armed conflict;

b. does, in fact, take a direct part in the hostilities;

d. is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

e. is not a member of the armed forces of a party to the conflict; and

f. has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.10.1.

United States of America

The US Air Force Commander’s Handbook (1980) states:

Until recently, there was no generally accepted definition of a “mercenary,” but the term was usually applied to foreigners who took part in an armed conflict on one side or the other, primarily for high pay or hope of booty … The definition of “mercenary” in [the 1977 Additional Protocol I] is so narrow that few persons would fit within it. The United States has signed this Protocol but has not yet ratified it.

United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 5-3.

Yugoslavia, Socialist Federal Republic of

The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states:

A mercenary is a person who:

1) is specially recruited locally or abroad in order to fight in an armed conflict;

2) does, in fact, take a direct part in the hostilities;

3) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

4) is neither a national of a party to the conflict nor a resident of territory controlled by a Party to the conflict;

5) is not a member of the armed forces of a Party to the conflict; and

6) 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.

Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 113.

IV. National Legislation

Armenia

Armenia’s Penal Code (2003) defines a mercenary as:

a person who is specially recruited, who acts in exchange for financial remuneration, who is neither a national of a party to the armed conflict or the military operations, nor its permanent resident, who is not a member of the armed forces of a party to the conflict, and who is not sent by another State to carry out official duties within the armed forces.

Armenia, Penal Code, 2003, Article 395(4).

Azerbaijan

Azerbaijan’s Criminal Code (1999) defines a mercenary as “a person not being a citizen of a State party to an armed conflict or hostilities, not having permanent residence on the territory of the State, as well as not being sent to carry out official duties, who acts with a view to private gain”.

Azerbaijan, Criminal Code, 1999, Article 114, Note.

Belarus

Belarus’s Criminal Code (1999) defines a mercenary as:

a person who participates, on the territory of a foreign State, in armed conflict or hostilities and who does not belong to the armed forces of the parties to the conflict and who acts with a view to a material remuneration without being authorized by the State of his origin or by the State on whose territory he permanently resides.

Belarus, Criminal Code, 1999, Article 133.

Burundi

Burundi’s Penal Code (1981) states:

The term “mercenary” refers to any person:

1° who is specifically recruited within the country or abroad to fight in an armed conflict;

2° who in fact takes a direct part in hostilities;

3° who takes a direct part in hostilities in order to obtain a personal advantage and to whom material compensation has been promised by a party to the armed conflict or in their name;

4° who neither stems from a party to the conflict nor is resident within territory controlled by a party to the conflict;

5° who is not a member of the armed forces of a party to the conflict;

6° who has not been sent on official mission as member of the armed forces of a State who is not a party to the conflict.

Burundi, Penal Code, 1981, Article 409.

Burundi

Burundi’s Penal Code (2009) states:

The term mercenary means any person who:

1°. Is specially recruited locally or abroad in order to fight in an armed conflict;

2°. Does, in fact, take a direct part in the hostilities;

3°. Is motivated to take part in the hostilities by the desire for private gain and, in fact, is promised by or on behalf of a party to the conflict, material compensation;

4°. Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

5°. Is not a member of the armed forces of a party to the conflict;

6°. 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.

Burundi, Penal Code, 2009, Article 581.

Croatia

Croatia’s Criminal Code (1997), as amended to 2006, states:

A mercenary is a specially recruited person in the country or abroad to fight in an armed conflict or to participate in a joint act of violence aimed at overthrowing the government or subverting in some other way the constitutional order or the territorial integrity of a country, who is neither a national of the parties to the conflict nor living in the territory controlled by a party to the conflict, who is not a member or the armed forces of a party to the conflict or of the party in whose territory an action is undertaken and who is not sent by a country which is not a party to the conflict as an official member of its armed forces but who is motivated to take part in the hostilities only for his personal gain significantly higher than the remuneration promised or paid to combatants of a similar rank or profession in the armed units of the party participating in the hostilities.

Croatia, Criminal Code, 1997, as amended to 2006, Article 89(35).

[emphasis in original]

France

France’s Penal Code (1992), as amended in 2003, provides:

Chapter VI

Participation in mercenary action

Article 436-1. – Punished with five years of imprisonment and a fine of 75 000 EUR is the act:

1° by any person, specially recruited in order to fight in an armed conflict, who is neither a national of a State party to that conflict, nor a member of the armed forces of that State, nor has been sent on official duty as a member of its armed forces by a State which is not one of the parties to the conflict, of taking, or trying to take, a direct part in the hostilities, motivated by the desire for private gain or for a compensation substantially in excess of that paid or promised to combatants of similar ranks and functions in the armed forces of the party for which the person is to fight;

2° by any person, specially recruited for the purpose of participating in a concerted act of violence aimed at overthrowing the institutions or undermining the territorial integrity of a State, who is neither a national of the State against which that act is directed, nor a member of the armed forces of that State, nor has been sent on official duty by a State, of taking, or trying to take, part in such an act, motivated by the desire for a significant private gain or compensation.

France, Penal Code, 1992, as amended in 2003, Article 436-1.

Georgia

Georgia’s Criminal Code (1999) defines a mercenary as:

a specially recruited person who acts with the view to receive a remuneration and who is neither a national of a State party to the conflict or hostilities, nor its permanent resident and who is not sent by any other State on official duty as a member of its armed forces.

Georgia, Criminal Code, 1999, Article 410, note.

Kazakhstan

Kazakhstan’s Penal Code (1997) defines a mercenary as:

any person who acts with a view to receive material remuneration or any other personal advantage and who does not belong to any party to the conflict, is not a permanent resident on its territory and is not dispatched by another State to fulfil official duties.

Kazakhstan, Penal Code, 1997, Article 162, note.

Kyrgyzstan

Kyrgyzstan’s Criminal Code (1997) defines a mercenary as:

a person who acts with a view to receive a remuneration and who is not a citizen of a state party to an armed conflict or hostilities, who is not its permanent resident and who is not a person sent on an official mission.

Kyrgyzstan, Criminal Code, 1997, Article 375, note.

Republic of Moldova

The Republic of Moldova’s Penal Code (2002) defines a mercenary as:

a person acting in the territory of a state involved in an armed conflict or in military hostilities with the aim to receive material gains, while not being a national of the said state, not having a permanent residence on the territory of the latter and not being under the duty to exercise official obligations.

Republic of Moldova, Penal Code, 2002, Article 130.

Russian Federation

The Russian Federation’s Criminal Code (1996) defines a mercenary as:

a person who acts for the purpose of getting a material reward and is not a citizen of the State that participates in the armed conflict or hostilities, who does not reside on a permanent basis on its territory, and who is not fulfilling official duties.

Russian Federation, Criminal Code, 1996, Article 359, note.

South Africa

South Africa’s Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (2006) states:

Definitions and interpretation

“armed conflict” includes any –

(a) situation in a regulated country proclaimed as such in terms of section 6;

and

(b) armed conflict in any other country which has not been so proclaimed, between –

(i) the armed forces of such country and dissident or rebel armed forces or other armed groups;

(ii) the armed forces of any states;

(iii) armed groups;

(iv) armed forces of any occupying power and dissident or rebel armed forces or any other armed group; or

(v) any other combination of the entities referred to in subparagraphs (i) to (iv);

“assistance or service” includes –

(a) any form of military or military-related assistance, service or activity;

(b) any form of assistance or service to a party to an armed conflict by means of –

(i) advice or training;

(ii) personnel, financial, logistical, intelligence or operational support;

(iii) personnel recruitment;

(iv) medical or para-medical services; or

(v) procurement of equipment; or

“Committee” means the National Conventional Arms Control Committee, established in terms of section 2 of the National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);

(a) in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States; or

(b) performed by the security services, as contemplated in section 199 of the Constitution of the Republic of South Africa, 1996, either in fulfillment of international obligations or in terms of any other law.

Prohibition of mercenary activity

(a) participate as a combatant for private gain in an armed conflict;

(b) directly or indirectly recruit, use, train, support or finance a combatant for private gain in an armed conflict;

(i) an armed conflict; or

(ii) a coup d’état, uprising or rebellion against any government; or

(d) directly or indirectly perform any act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.

Prohibition and regulation of certain assistance or rendering of services in country of armed conflict or regulated country

(a) negotiate or offer to provide any assistance or render any service to a party to an armed conflict or in a regulated country, unless such a person has been granted authorisation in terms of section 7 to negotiate or offer such assistance or service;

(b) provide any assistance or render any service to a party to an armed conflict or in a regulated country, unless such assistance is provided or such service is rendered in accordance with an agreement or arrangement authorised in terms of section 7;

(c) recruit, use, train, support or finance any person to provide assistance or render any service to a party to an armed conflict or in a regulated country, unless such person has been authorised in terms of section 7 to recruit, use, train, support or finance such a person;

(d) recruit, use, train, support or finance any person to provide assistance or render a service to a party to an armed conflict or in a regulated country unless such a person is recruited, used, trained, supported or financed in accordance with an agreement or arrangement authorised in terms of section 7; or

(e) perform any other act that has the result of furthering the military interests of a party to an armed conflict or in a regulated country, unless such a person has been authorised in terms of section 7.

Prohibition and regulation of enlistment of South Africans in armed forces

Proclamation of regulated country

(a) an armed conflict exists or is imminent in any country; and

(b) such a country should be proclaimed to be a regulated country.

Application for authorisation

(a) refuse the application;

(b) grant the application subject to such conditions as it may determine; or

Criteria for authorisation or exemption

(a) is in conflict with the Republic’s obligations in terms of international law;

(b) would result in the infringement of human rights and fundamental freedoms in the territory where the assistance or service is to be rendered or the exemption granted;

(c) endangers the peace by introducing destabilising military capabilities into the region or territory where the assistance or service, or humanitarian aid, is or is likely to be, provided or rendered;

(d) would contribute to regional instability or negatively influence the balance of power in such region or territory;

(e) in any manner supports or encourages any terrorist activity or terrorist and related activities, as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

(f) contributes to the escalation of regional conflicts;

(g) in any manner initiates, causes or furthers an armed conflict, or a coup d’état, uprising or rebellion against a government; or

(h) prejudices the Republic’s national or international interests.

South Africa, Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006, Sections 1–4, 6(1), 7(1)–(2) and 9.

Tajikistan

Tajikistan’s Criminal Code (1998) defines a mercenary as:

a specially recruited person who acts with a view to receive a remuneration and who is neither a national of a State party to the conflict nor its permanent resident, nor a member of the armed forces of a party which is in a state of war and is not sent by any other State on official duty as a member of its armed forces.

Tajikistan, Criminal Code, 1998, Article 401, note.

Ukraine

Ukraine’s Criminal Code (2001) defines mercenary activity as “participation in armed conflicts of other States for the purpose of pecuniary compensation without authorization obtained from appropriate government authorities”.

Ukraine, Criminal Code, 2001, Article 447(2).

Uzbekistan

Uzbekistan’s Criminal Code (1994) defines mercenary activity as:

participation on the territory or side of a foreign State in an armed conflict or military actions by a person who is neither a citizen nor a member of the armed forces of a State in conflict, nor a permanent resident of the territory under its control, nor someone sent on official duty by any State to the armed forces of another State, with a view to receive a financial reward or other personal advantages.

Uzbekistan, Criminal Code, 1994, Article 154.

V. National Case-law

South Africa

In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

South Africa

In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.

South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.

[footnotes in original omitted]

The Court also held:

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.

South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.

VI. Other National Practice

Afghanistan

At the CDDH, Afghanistan stated that it “does not see any need for the retention of the clause immediately following the words ‘private gain’ in paragraph 2(c)” of Article 42 quater of the draft Additional Protocol I (now Article 47).

Afghanistan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 175.

Algeria

In an interpretative declaration made upon accession to the 1977 Additional Protocol I, Algeria reserved judgement on the definition of mercenarism as set out in Article 47(2) of the Protocol, which it deemed “restrictive”.

Algeria, Interpretative declarations made upon accession to the 1977 Additional Protocol I, 16 August 1989, § 3.

Cameroon

At the CDDH, Cameroon suggested that the definition of a mercenary in Article 42 quater of the draft Additional Protocol I (now Article 47) would have been improved by the deletion of the condition of a promise of “material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions” in paragraph 2(c) because “it would be very difficult to prove that a mercenary received exorbitant pay”.

Cameroon, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 156, § 76.

Cuba

At the CDDH, Cuba stated, with regard to paragraph 2(c) of Article 42 quater of the draft Additional Protocol I (now Article 47), that it “has serious doubts about its objectivity, since in practice it will not be possible to verify whether or not the material compensation is in excess of that paid to combatants of similar rank and functions”.

Cuba, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 185.

Mauritania

At the CDDH, Mauritania expressed “the greatest reservation with regard to the definition, motivation and scope” of mercenary activity as set forth in paragraphs 2(a)–(c) of Article 42 quater of the draft Additional Protocol I (now Article 47). It explained that “the mercenary of today is no longer motivated solely by the desire for private gain” and, as a result, considered that “the definition and motivations of the mercenary as specified in Article 42 quater, paragraph 2, are incomplete in so far as their range does not cover all categories of mercenaries”.

Mauritania, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, pp. 191–192.

Netherlands

At the CDDH, the Netherlands stated:

We are somewhat worried by the fact that in the list of criteria [to define a mercenary], the motivation of a person has been brought into play. We should like to reiterate our position that the application of humanitarian law and the granting of humanitarian treatment should not be made dependent on someone’s motivation for taking part in the armed conflict. Moreover the element of motivation will be difficult to establish and could give rise to more than one interpretation.

Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 194.

Netherlands

Upon ratification of the 1977 Additional Protocol I, the Netherlands stated: “Article 47 in no way prejudices the application of Articles 45 and 75 of Protocol I to mercenaries as defined in this Article.”

Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 4.

Nigeria

At the CDDH, Nigeria stated that it “appreciated the suggestion made by the representative of the United Republic of Cameroon and regretted that it had been made too late”.

Nigeria, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 156, § 77.

Switzerland

In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:

5.1 Rules of international law concerning mercenarism

5.1.1 Art. 47 of the First Additional Protocol of 1977

International humanitarian law contains only one provision specifically concerning mercenary activity, namely Article 47 of the first additional protocol of 1977 (AP1). Additional Protocol I has been ratified by a large majority of states.

As understood by the first paragraph of this provision, Article 47 AP1 does not forbid mercenary service, although especially African countries had wished otherwise during negotiations on this provision. However on the basis of Article 47 AP1, mercenaries can be denied the privileged status of a combatant or prisoner of war. In particular, mercenaries, in contrast to combatants and prisoners of war, can be held criminally responsible by the opposing state merely for having taken part in an international armed conflict.

However a state is not obliged to deny prisoner of war status; the mercenary simply has “no claim” to such status. Even if prisoner of war status is denied, mercenaries are not totally unprotected. Under Article 75 AP1 they enjoy a minimum protection which has the character of customary international law.

The significance of Article 47 AP1 is infinitesimal in practice. In paragraph 2, the list of six cumulative definitions is so restrictive that it becomes difficult to prove that employees of a private security company fall under the description. The majority of private military companies indeed offer inherent military services, but are only seldom directly involved in hostilities. Finally, by definition, citizens of a country in conflict cannot be considered mercenaries. Actually, one must proceed from the fact that only a small part of employees of private security companies involved in military functions and active in conflict situations could be qualified as mercenaries.

5.1.2 Relevant instruments of the UN and individual regional organisations

…

In 1970, the UN General Assembly adopted the Friendly Relations Declaration 2625 (XXV) concerning principles of international law relating to friendly relations and cooperation between states. …

One of the specifications [in this Declaration] states:

“Every State has the duty to refrain from organising or encouraging the organisation of irregular forces or armed bands including mercenaries, for incursion into the territory of another State.”

This declaration of 1970 therefore makes it a duty of the state not to use mercenaries against the territorial integrity or independence of another state. The explicit reference to mercenary service by the UN General Assembly represents something new in the way the issue of mercenary service is dealt with internationally because international law had never before come to grips with this topic. However, the declaration does not define what is meant by “irregular forces or armed bands”.

On 3 July 1977 the African Union, AU, (formerly Organisation of African Unity, OAU) accepted the Convention for the Elimination of Mercenarism in Africa. Article 1, par. 1 of this convention defines the term mercenary almost word-for-word the same as in Article 47 AP1. As already mentioned, this makes it difficult in practice to legally qualify someone as a mercenary on the basis of the AU convention. The convention however does not bar the States Parties from using mercenaries in operations against dissident groups within their own borders.

The UN Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989 defines the term mercenary in Article 1, par. 1 in a way closely resembling that in Article 47 AP1. Here too, it is difficult in practice to qualify who is a “mercenary” due to the definition in the UN Convention. Nevertheless the definition in the UN Convention goes slightly beyond the one in Additional Protocol I in that it takes into consideration not only situations of armed conflict but also of organised violence to bring about the collapse of a government, to undermine constitutionality or against the territorial integrity of a state.

The United Nations Convention criminalises the recruitment, financing, training and the use of mercenaries as well as the active participation of mercenaries even in the organised use of force. These activities are to be forbidden by the States Parties.

The UN Convention entered into force more than 10 years after its adoption. Switzerland has so far not ratified the convention. The issue of ratification was not a priority in the 1990s, particularly because there were different opinions regarding its effectiveness. The UN Convention does not reflect customary international law as can be seen by the small number of ratifying countries.

5.1.3 Conclusions: Customary international law does not prohibit mercenarism

While Article 47 AP1 and the Friendly Relations Declaration of the UN do not forbid mercenarism, the AU Convention of 1977 and UN Convention of 1989 are by no means universally accepted legal instruments. Therefore customary international law does not forbid mercenarism and contains no specific standards limited only to mercenary activities.

With reference to the Conventions of the AU and the UN, it must be noted that several of the defining elements set down are so restrictive and difficult to prove that the practical relevance of the Conventions even for States Parties is limited. Both Conventions deal mainly with individuals acting against national governments and are not intended to regulate the operations of private security companies in general conflict situations. The concept of the “mercenary” is for these reasons partly described as outmoded and considered inappropriate for the practical regulation of the phenomenon of private military and security companies.

Switzerland, Report by the Swiss Federal Council on Private Security and Military and Companies, 2 December 2005, pp. 42–44.

[emphasis in original; footnotes in original omitted]

Switzerland

Switzerland’s ABC of International Humanitarian Law (2009) states:

Mercenaries

Mercenaries participate in Armed conflicts without belonging to the armed forces and without sharing the nationality of any of the parties to the conflict. Nor are they residents of areas occupied by any of the parties to the conflict. Mercenaries operate purely for their own material benefit. The First Additional Protocol to the Geneva Conventions (1977) denies mercenaries both the status of Combatants and of Prisoners of war.

Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 35.

United States of America

In 1987, the Deputy Legal Adviser of the US Department of State affirmed:

We do not favor the provisions of article 47 on mercenaries, which among other things introduce political factors that do not belong in international humanitarian law, and do not consider the provisions of article 47 to be part of current customary law.

United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, pp. 426–427.

Yugoslavia, Socialist Federal Republic of

In 1980, during a debate in the Sixth Committee of the UN General Assembly on the UN Mercenary Convention, the Socialist Federal Republic of Yugoslavia stated that it supported the definition of a mercenary provided by Article 47 of the 1977 Additional Protocol I.

Yugoslavia, Socialist Federal Republic of, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/ 35/SR.23,17 October 1980, § 70.

Zaire

At the CDDH, Zaire stated that it considered that paragraph 2(c) in Article 42 quater of the draft Additional Protocol I (now Article 47) “was greatly weakened by the inclusion of the second clause” requiring a promise of “material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions”.

Zaire, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 160, § 100.

VII. United Nations

UN General Assembly

In a resolution adopted in 1999 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 UN General Assembly asked the UN Secretary-General:

to invite Governments to make proposals towards a clearer legal definition of mercenaries, and, in this regard, requests the United Nations High Commissioner for Human Rights to convene expert meetings, as requested in previous General Assembly resolutions, to study and update the international legislation in force and to propose recommendations for a clearer legal definition of mercenaries that would allow for more efficient prevention and punishment of mercenary activities.

UN General Assembly, Res. 54/151, 17 December 1999, § 12, voting record: 110-16-35-27.

VIII. Other International Organizations

No data.

IX. International Conferences

No data.

X. International and Mixed Judicial and Quasi-judicial Bodies

No data.

XI. International Red Cross and Red Crescent Movement

No data.

XII. Other

No data.

Section B. Status of mercenaries

I. Treaties

Additional Protocol I

Article 47(1) of the 1977 Additional Protocol I provides: “A mercenary shall not have the right to be a combatant or a prisoner of war.”

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, CDDH, Article 47(1). Article 47 was adopted by consensus. Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 156.

Additional Protocol I

Article 45(3) of the 1977 Additional Protocol I provides:

Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 45(3). Article 45 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 155.

OAU Convention against Mercenarism

Article 3 of the 1977 OAU Convention against Mercenarism states: “Mercenaries shall not enjoy the status of combatants and shall not be entitled to prisoner of war status.”

OAU Convention against Mercenarism

Article 11 of the 1977 OAU Convention against Mercenarism states that a mercenary “shall be entitled to all guarantees normally granted to any ordinary person by the State on whose territory he is being tried”.

II. Other Instruments

No data.

III. Military Manuals

Argentina

Argentina’s Law of War Manual (1989) states: “A mercenary shall not have the right to be a combatant or a prisoner of war.”

Australia

Australia’s Commanders’ Guide (1994) states: “Mercenaries do not have the right to be combatants or PW [prisoner of war].”

Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 708.

Australia

Australia’s LOAC Manual (2006) states:

Mercenaries are not entitled to be PW [prisoners of war], although their captors may afford them the protection of such status. Even if not treated as PW, captured mercenaries remain entitled to fundamental guarantees provided by G. P. I. [1977 Additional Protocol I].

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.6.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Belgium

Belgium’s Law of War Manual (1983) states: “Mercenaries do not have the right to be combatants or prisoners of war. They are therefore illegal combatants.”

Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 23.

Cameroon

Cameroon’s Instructor’s Manual (1992) states: “Mercenaries who take part in military operations for private gain shall not be considered as combatants and consequently are not entitled to prisoner-of-war status.”

Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 143; see also pp. 36, 60 and 77.

Cameroon

Cameroon’s Instructor’s Manual (2006), under the heading “Non-Combatants”, states:

Mercenaries who engage in military actions for remuneration are not considered combatants and therefore cannot benefit from prisoner of war status. … [M]ercenaries must be treated humanely …; one must avoid … infringements of their physical or psychological integrity. These persons must be tried in accordance with the law of the State.

Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 21, § 112; see also p. 60, § 252, p. 86, § 342, p. 112, § 383, p. 153, § 443 and p. 180, § 491.A.

The manual also states: “[M]ercenaries do not benefit from the protection of the law of armed conflict and international humanitarian law. Nonetheless, they must in all cases be treated humanely.”

The manual further states: “The actions which they [mercenaries] have undertaken are only subject to individual responsibility.”

Canada

Canada’s LOAC Manual (1999) states:

Mercenaries are unlawful combatants and may be attacked for such time as they take a direct part in hostilities. If captured, mercenaries are not entitled to PW [prisoner-of-war] status. They may be punished for being mercenaries but only following a fair trial affording all judicial guarantees.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-4, § 31.

Canada

Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 319.2.

In its chapter on the treatment of prisoners of war (PWs), the manual further states: “If captured and detained, the following persons are not entitled to PW status, but they must nevertheless be treated humanely: … b. mercenaries”.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1007.1.b.

[emphasis in original]

Chad

Chad’s Instructor’s Manual (2006) states: “Mercenaries who carry out military action in return for remuneration are not considered to be combatants and may therefore not enjoy prisoner-of-war status.”

Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité , Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 42; see also pp. 55 and 65.

The manual further states that mercenaries “may not be tried in advance”.

Côte d’Ivoire

Côte d’Ivoire’s Teaching Manual (2007) notes in Book I (Basic instruction): “Mercenaries and spies are not considered as combatants but benefit from humane treatment and must be tried in a manner consistent with national law.”

Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 17.

In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:

I.7. Mercenaries

…

As in the case of spies, the protection of mercenaries according to the terms of the law is limited. If they are captured they do not have the right to prisoner-of-war status. They must be punished for their activities in accordance with the national legislation. They must nevertheless be treated humanely and have the right to a fair trial.

Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 30; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 25.

In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:

Chapter 2. Combatants and objectives

…

I.4. Unlawful combatants

…

I.4.2. Mercenaries

…

Mercenaries are unlawful combatants and can be attacked during all the time they take a direct part in hostilities. If they are captured, mercenaries are not entitled to POW [prisoner-of-war] status. They can be punished for the fact of their work as mercenaries, but only after a fair trial provided with all judicial guarantees. …

…

NB: In case of doubt as to the status of persons captured during hostilities, these persons must be treated as POWs until a regularly constituted tribunal has determined their real status. If the tribunal determines that the captive is a lawful combatant, this captive is entitled to POW status. …

…

Chapter 5. Prisoners of war

…

I.2. Persons not entitled to POW status

If they are captured and detained, the following persons are not entitled to POW status, but they shall nevertheless be treated humanely:

…

- mercenaries;

…

I.2.3. POW status determination procedure

When one cannot determine whether a given prisoner is entitled to be treated as a POW, the prisoner is treated as such until his status has been determined by a regularly constituted tribunal …

Nationality has no effect on the right to POW status. That right depends on the country to which the armed forces belong, thus, even if the country of the prisoner is neutral, a national serving with a Party to the conflict becomes a POW if he is captured.

Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 17, 23, 24–25, 59 and 60.

France

France’s LOAC Teaching Note (2000) states: “Mercenaries are not combatants and therefore shall not have the right to prisoner-of-war status.”

France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2.

France

France’s LOAC Manual (2001) states: “Mercenaries shall not have the right to combatant or prisoner-of-war status.”

Germany

Germany’s Military Manual (1992) provides:

Mercenaries shall be regarded as unlawful combatants [i.e.] persons who take a direct part in the hostilities without being entitled to do so and have to face penal consequences. They do not have the right to the status of a prisoner of war. [They] do, however, have a legitimate claim to certain fundamental guarantees (Art. 75 [of the 1977 Additional Protocol I]), including the right to humane treatment and a regular judicial procedure.

Germany

Germany’s Soldiers’ Manual (2006) states: “Only combatants are entitled to take part in combat operations and cannot be punished for doing so. In contrast, other persons, e.g. mercenaries, can be punished.”

Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 3.

Israel

Israel’s Manual on the Laws of War (1998) states:

Another provision in the Additional Protocols is meant precisely to deny prisoner-of-war status to … mercenaries. This provision, which was adopted under pressure from African countries, is accepted as a customary rule and is therefore binding.

Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 51.

Israel

Israel’s Manual on the Rules of Warfare (2006) states:

[A] provision in the Additional Protocols actually denies the status of prisoner-of-war from a different category of combatant, that of a mercenary. This provision, which was passed through pressure from the African nations, has been accepted as a customary provision and is therefore binding.

Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 33.

The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).

Italy

Italy’s IHL Manual (1991) states: “In all cases, a mercenary who is not a member of the armed forces of a party to the conflict shall not have the right to combatant or prisoner-of-war status.”

Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 6.

Kenya

Kenya’s LOAC Manual (1997) states: “Mercenaries are neither entitled to combatant nor to POW [prisoner-of-war] status … Nevertheless, a captured mercenary … cannot be deprived of his fundamental rights and may not be punished without trial.”

Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 9.

Mexico

Mexico’s Army and Air Force Manual (2009), in a section on the 1977 Additional Protocol I, states that “mercenaries, on the other hand, are not entitled to prisoner-of-war status.”

Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 259; see also § 255.

In the same section, the manual also states: “Mercenaries do not have the right to combatant or prisoner-of-war status, which means that States can prosecute or expel them. However, mercenaries do have the right to the fundamental guarantees.”

Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 278.

Netherlands

The Military Manual (1993) of the Netherlands states: “A mercenary is not entitled to combatant or prisoner-of-war status.”

Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-6, § 5.

Netherlands

The Military Manual (2005) of the Netherlands states: “A mercenary is not entitled to combatant or prisoner-of-war status.”

Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0323.

The manual further states: “The fact that persons of other nationalities volunteer to join the armed forces of a State does not make them mercenaries. Such volunteers must normally be treated as combatants.”

Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0323; see also § 0706.

New Zealand

New Zealand’s Military Manual (1992) states:

807(1). While no distinction may be drawn between regular troops and volunteers, conscripts or members of the militia embodied in the armed forces, mercenaries as defined in [the 1977 Additional Protocol I] are denied the status of combatants and, if captured, are not entitled to treatment as prisoners of war.

807(2). Prior to 1977 there was no restriction upon the use of mercenaries in armed conflict and, in accordance with the principles of humanitarian law, any form of discrimination among combatants was forbidden. By a series of resolutions in relation to specific anti-colonial conflicts in Africa, the United Nations recommended prohibition of the use of such personnel against national liberation movements. This did not affect their legal status, although the government of Angola instituted criminal proceedings against captured mercenaries. Insofar as countries accepting [the 1977 Additional Protocol I] are concerned mercenaries are not entitled to combatant rights, thus denying to this type of soldier the equal treatment otherwise prescribed by the Protocol. Nevertheless, they remain entitled to the provisions concerning humanitarian treatment contained in [the 1977 Additional Protocol I] Art. 75.

New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 807(1)–(2).

Nigeria

Nigeria’s Operational Code of Conduct (1967) states: “Foreign nationals on legitimate business will not be molested, but mercenaries will not be spared: they are the worst of enemies.”

Nigeria, Operational Code of Conduct for Nigerian Armed Forces, Federal Military Government of Nigeria, July 1967, § 4(l).

Nigeria

Nigeria’s Military Manual (1994) states that “mercenaries are however not to be considered as prisoner[s] of war.”

Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 8, § 9(c)(2).

Peru

Peru’s IHL Manual (2004) states that a mercenary “is not entitled to combatant status or, if captured by the enemy, to prisoner-of-war status.”

Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.

Peru

Peru’s IHL and Human Rights Manual (2010) states in its Glossary of Terms that a mercenary “is not entitled to combatant status or, if captured by the enemy, to prisoner-of-war status”.

Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 409.

Russian Federation

The Russian Federation’s Regulations on the Application of IHL (2001) states:

When fallen into the power of the adversary, neither spies, nor mercenaries shall have the right to the prisoner-of-war status and shall be subject to punishment for their activities. However, sentences with respect to the above persons shall only be passed with previous judgment pronounced by a regularly constituted court and the accused shall be provided with the generally recognized guarantees of court defence.

South Africa

South Africa’s LOAC Teaching Manual (2008) states:

Mercenaries ([1977] Additional Protocol I Article 47)

- Mercenaries shall not have the right to be a combatant or a POW [prisoner of war]. They are considered to be “unlawful combatants” and therefore may be treated as common criminals.

Conclusion

The manual also states:

c. Prisoners of War

Spain

Spain’s LOAC Manual (1996) included mercenaries in the section concerning persons not entitled to protection, stating:

They are neither considered civilians nor have the right to take a direct part in hostilities as combatants. The more important consequence is that to the extent that they take a direct part in hostilities, they shall not be entitled to prisoner-of-war status.

Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.4.b.

Spain

Spain’s LOAC Manual (2007) states that mercenaries “are not entitled to prisoner-of-war status if they are captured”.

Sweden

Sweden’s Military Manual (1991) states: “Mercenaries … are not entitled to combatant or prisoner-of-war status.”

Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.4, p. 36.

Switzerland

Switzerland’s Basic Military Manual (1987) states: “Mercenaries shall not have the right to combatant or prisoner-of-war status.”

Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 177

Ukraine

Ukraine’s IHL Manual (2004) states:

1.2.25. … [M]ercenaries are unlawful participants of the hostilities.

…

1.2.25.2. … [M]ercenaries shall not have the right to be prisoners of war and are subject to punishment for their actions. However, their punishment may only be imposed by a competent tribunal.

Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.2.25 and 1.2.25.2.

United Kingdom of Great Britain and Northern Ireland

The United Kingdom's LOAC Pamphlet (1981) states:

Mercenaries are neither combatants nor entitled to PW [prisoner-of-war] status. A mercenary is a person who takes part in the conflict for private gain, who is not a member of any organized armed forces and has no connection with the countries involved in the conflict.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Manual (2004) states: “Mercenaries are not entitled to be prisoners of war unless their captors so decide. Even if not treated as prisoners of war, captured mercenaries remain entitled to the basic humanitarian guarantees provided by Additional Protocol I.”

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.12; see also 4.10.

United States of America

The US Air Force Commander’s Handbook (1980) states:

In recent years, many countries have claimed that “mercenaries” are unlawful combatants and subject to punishment upon capture …

a. The United States has long recognized that neutral nationals taking part in an armed conflict can encourage the escalation of that conflict, and US statutes place certain limits on the recruitment of mercenaries in this country. We have also, however, regarded mercenaries as lawful combatants entitled to PW status upon capture. The US government has always protested vigorously against any attempt by other nations to punish American citizens as mercenaries.

b. [The 1977 Additional Protocol I] provides that mercenaries do not have the right to be combatants or prisoners of war, but the definition of “mercenary” in this Protocol is so narrow that few persons would fit within it.

United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 5-3.

Yugoslavia, Socialist Federal Republic of

The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “Mercenaries shall not have the right to combatant or prisoner-of-war status.”

Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 114.

IV. National Legislation

Armenia

Armenia’s Penal Code (2003) provides: “The participation of a mercenary in armed conflicts or military actions is punished with imprisonment for 3–7 years.”

Armenia, Penal Code, 2003, Article 395(3).

Azerbaijan

Azerbaijan’s Criminal Code (1999) provides: “Participation of a mercenary in the armed conflict or in the hostilities, -is punished by deprivation of liberty for a period of 3 to 8 years.”

Azerbaijan, Criminal Code, 1999, Article 114(3).

Belarus

Under Belarus’s Criminal Code (2000), the participation of a mercenary in an armed conflict is punished with imprisonment for a term of three to seven years with (facultative) confiscation of goods.

Belarus, Criminal Code, 2000, Article 133.

Croatia

Croatia’s Criminal Code (1997), as amended to 2006, states: “Whoever, with an aim to acquire material gain, directly participates as a mercenary in an armed conflict or a joint act of violence shall be punished by imprisonment for six months to five years.”

Croatia, Criminal Code, 1997, as amended in June 2006, Article 167b(2).

Denmark

Denmark’s Military Criminal Code (1973), as amended in 1978, provides:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].

Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Denmark’s Military Criminal Code (2005) provides:

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].

Denmark, Military Criminal Code, 2005, § 36(2).

France

France’s Penal Code (1992), as amended in 2003, provides:

Chapter VI

Participation in mercenary action

Article 436-1. – Punished with five years of imprisonment and a fine of 75 000 EUR is the act:

Article 436-2. – The act of directing or organizing a group having as object the recruitment, employment, compensation, equipment or military training of a person defined in article 436-1 is punished with seven years of imprisonment and a fine of 100 000 EUR.

Article 436-3. – If the acts mentioned in the present chapter are committed abroad by a French national or by a person habitually residing in the French territory, French law is applicable by derogation from paragraph two of article 113-6, and the provisions of the second sentence of article 113-8 are not applicable.

France, Penal Code, 1992, as amended in 2003, Articles 436-1 to 436-3.

Georgia

Georgia’s Criminal Code (1999) provides: “Participation of a mercenary in armed conflict or hostilities shall be punished by deprivation of liberty for a term of three to seven years.”

Georgia, Criminal Code, 1999, Article 410(3).

Georgia

Georgia’s Criminal Code (1999), taking into account amendments up to 2017, states:

Article 410 – Participation of mercenaries in armed conflicts or military actions

…

3. Participation of mercenaries in armed conflicts or military actions, –

shall be punished by imprisonment for a term of four to six years.

Georgia, Criminal Code, 1999, taking into account amendments up to 2017, Article 410(3).

Ireland

Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 45(3), is a punishable offence.

Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).

Japan

Japan’s Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states that a “Person subject to internment” means a ‘foreigner’ who falls under certain specified categories, including: “Mercenary as prescribed in Article 47, paragraph 2, of the First Additional Protocol [1977 Additional Protocol I]”.

Japan, Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 3(iv)(k).

Kazakhstan

Kazakhstan’s Penal Code (1997) provides: “Participation of a mercenary in a military conflict or military actions shall be punished by imprisonment for a period of three to seven years.”

Kazakhstan, Penal Code, 1997, Article 162(3).

Norway

Norway’s Military Penal Code (1902), as amended in 1981, provides:

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.

Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).

Republic of Moldova

The Republic of Moldova’s Criminal Code (2002) punishes “[p]articipation of a mercenary in an armed conflict or hostilities … with imprisonment for a term of 5 to 15 years”.

Republic of Moldova, Criminal Code, 2002, Article 141(1)

Russian Federation

The Russian Federation’s Criminal Code (1996) provides: “Participation of a mercenary in an armed conflict or in hostilities shall be punished by imprisonment for a term of three to seven years.”

Russian Federation, Criminal Code, 1996, Article 359(3).

Tajikistan

Tajikistan’s Criminal Code (1998) provides: “Participation of a mercenary in armed conflict or hostilities shall be punished by deprivation of liberty for a term of 12 to 20 years.”

Tajikistan, Criminal Code, 1998, Article 401(3).

Ukraine

Ukraine’s Criminal Code (2001) provides:

Participation, without permission of government bodies in charge, in armed conflicts of other States with the purpose of gaining financial profit shall be punishable with deprivation of liberty for a term of five to ten years.

Ukraine, Criminal Code, 2001, Article 447(2).

Uzbekistan

Uzbekistan’s Criminal Code as amended (2001) provides that a mercenary “shall be punished with imprisonment for five to twelve years.”

Uzbekistan, Criminal Code, 2001, as amended, Article 154.

Viet Nam

Viet Nam’s Penal Code (1999) provides: “Those who work as mercenaries shall be sentenced to between five and fifteen years’ imprisonment.”

Viet Nam, Penal Code, 1999, Article 344(2).

Viet Nam

Viet Nam’s Penal Code (1999) provides: “Those who work as mercenaries shall be sentenced to between five and fifteen years’ imprisonment.”

Viet Nam, Penal Code, 1999, § 344.

Viet Nam

Viet Nam’s Criminal Code (2015) states:

Chapter XXVI

DISRUPTION OF PEACE, CRIMES AGAINST HUMANITY, AND WAR CRIMES

…

Article 424. Recruiting, training, or employing mercenaries

Any person who recruits, trains, or employs mercenaries to fight against a nation or sovereign territory shall face a penalty of 10–20 years’ imprisonment or life imprisonment.

Article 425. Working as a mercenary

Any person who works as a mercenary to fight against a nation or sovereign territory shall face a penalty of 05-15 years’ imprisonment.

Viet Nam, Criminal Code, 2015, Articles 424–425.

V. National Case-law

South Africa

In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.

…

- Article 47.2 defines a mercenary as any person who[:]

1. (1) In this Act, unless the context indicates otherwise –

…

2) Despite this Act or any other law, no act may be construed as assistance or service if such act is–

2. (1) No person may within the Republic or elsewhere –

(2) Any person who contravenes subsection (1) is guilty of an offence.

3. (1) No person may within the Republic or elsewhere–

(2) Any person who contravenes subsection (1) is guilty of an offence.

4. (1) No South African citizen or permanent resident may enlist with any armed force, other than the Defence Force, including an armed force of any foreign state, unless he or she has been authorised in terms of section 7.

(2) Subject to section 7(5) and (6), an authorisation granted in terms of section 7 may be revoked if the person to whom the authorisation has been granted takes part in an armed conflict as a member of an armed force other than the Defence Force and such authorisation contravenes any one of the criteria listed in section 9.

…

6. (1) The Committee must inform the National Executive, whenever it is of the opinion that –

…

7. (1) Any person who applies for an authorisation referred to in section 3(1)(a) to (e) or section 4(1) must submit to the Committee an application for authorisation in the prescribed form and manner.

(2) The Committee must consider any application for authorisation submitted in terms of subsection (1), and, subject to section 9, may –

…

9. An authorisation in terms of section 7(2), and exemption in terms of section 13, may be given, unless it –

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed.

South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.

…

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

…

Captured spies and mercenaries do not have the status of POW.

South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 38–39 and 41.

[emphasis in original]

…

Spies and mercenaries do not have the status of a combatant, and therefore not of POW when captured. (Additional Protocol I articles 46 and 47). This rule applies while they are being detained as spies or mercenaries.

South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 91–92.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

In the result, the preliminary point is dismissed. The trial must proceed.

South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.

…

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.

[footnotes in original omitted]

The Court also held:

South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.

VI. Other National Practice

Australia

At the CDDH, Australia stated that it held the view that “mercenaries, who are in the hands of a Party to an armed conflict to which draft Protocol I applies, are entitled to the benefits of the treatment provided for by Article 65 [now Article 75] of that Protocol”.

Australia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 175; see also p. 176.

Botswana

The Report on the Practice of Botswana asserts: “Mercenaries have no protection at all.”

Report on the Practice of Botswana, 1998, Chapter 1.1.

Canada

At the CDDH, Canada stated that it “welcomed the recognition by the Nigerian representative that mercenaries were entitled to the fundamental guarantees provided in Article 65 [now Article 75 of the 1977 Additional Protocol I]”.

Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 160, § 98.

China

China considers that mercenaries should not benefit from the treatment reserved for POWs and that they may also be liable to punishment, depending upon the seriousness of the crimes committed.

China, Address on the Convention on Suppressing the Activities of Mercenaries, Selected Documents of the Chinese Delegation to the United Nations, World Knowledge Press, Beijing, 1980, p. 173.

Colombia

At the CDDH, Colombia stated that it “would have liked some specific reference to be included [in Article 42 quater of the draft Additional Protocol I (now Article 47)] to the fundamental guarantees provided for in Article 65 [now Article 75 of the 1977 Additional Protocol I]”.

Colombia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 161, § 105; see also p. 182.

Cyprus

At the CDDH, Cyprus stated that it “wished to express its appreciation for the clarification given by the Nigerian representative”.

Cyprus, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 159, § 96.

Egypt

In 1982, during a debate in the Sixth Committee of the UN General Assembly, Egypt stated that mercenaries should benefit from humanitarian treatment according to human rights principles and established norms.

Egypt, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/37/SR.10, 14 October 1982, § 10.

Holy See

At the CDDH, the Holy See stated that it

could not agree that mercenaries should not be expressly granted the minimum protection given to all men, whatever their faults and their moral destitution. Consequently, … the Holy See would have liked Article 42 quater [now Article 47 of the 1977 Additional Protocol I] to refer explicitly to Article 65 on fundamental guarantees [now Article 75].

Holy See, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 158, §§ 87–88.

India

At the CDDH, India stated that it “welcomed the clarification given by the Nigerian representative”.

India, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 159, § 90.

Iraq

With reference to a press conference by the Iraqi Minister of Defence in 1986, the Report on the Practice of Iraq states that mercenaries are not treated as prisoners of war.

Report on the Practice of Iraq, 1998, Chapter 5.3, referring to Press conference by the Iraqi Minister of Defence, 4 October 1986.

Ireland

Upon ratification of the 1977 Additional Protocol I, Ireland declared: “Article 47 in no way prejudices the application of Articles 45(3) and 75 of Protocol I to mercenaries as defined in this Article.”

Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 8.

Italy

At the CDDH, Italy stated:

Mercenaries, though not entitled to prisoner-of-war status, were covered by Article 65 [now Article 75 of the 1977 Additional Protocol I], which contained the fundamental safeguards to be given to all persons not enjoying more favourable treatment, regardless of the gravity of the crimes with which they might be charged.

Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 159, § 92.

Italy

In 1981, during a debate in the Sixth Committee of the UN General Assembly, Italy stated that Article 47 of the 1977 Additional Protocol I should be interpreted in parallel to Article 75 of the 1977 Additional Protocol I.

Italy, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/36/SR.18, 28 October 1981, § 36.

Mexico

At the CDDH, Mexico stated: “The guarantees contained in Article 65 [now Article 75 of the 1977 Additional Protocol I] are implicitly applicable to the persons dealt with in Article 42 quater [now Article 47].”

Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 192.

Netherlands

At the CDDH, the Netherlands reiterated “the applicability to a mercenary of the fundamental guarantees” embodied in Article 65 of the draft Additional Protocol I (now Article 75).

Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 194; see also p. 195.

Netherlands

In 1980, during a debate in the Sixth Committee of the UN General Assembly, the representative of the Netherlands stated that the status of mercenaries under Article 47 of the 1977 Additional Protocol I was less than the Dutch delegation found desirable. He added that, notwithstanding their reprehensible activities, the human rights of mercenaries should be respected, as with every other human being.

Netherlands, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/35/SR.23, 7 November 1980, § 76.

Nigeria

At the CDDH, Nigeria stated:

While recognizing the fundamental guarantees provided for in the new Article 65 of draft [Additional] Protocol I [now Article 75] and not denying the common humanity which mercenaries shared with the rest of mankind, [Nigeria] did not think that such considerations could serve as a pretext for giving mercenaries the rights of combatants or prisoners of war in any situation of armed conflict.

Nigeria, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 157, § 81.

Portugal

At the CDDH, Portugal stated that according to its interpretation of Article 65 on fundamental guarantees and Article 42 quater on mercenaries of the draft Additional Protocol I (now Articles 75 and 47), “the latter were in a category covered by the fundamental guarantees set out in Article 65”.

Portugal, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 160, § 97.

Russian Federation

The Report on the Practice of the Russian Federation states:

As far as mercenaries are concerned, it must be said that they participate in nearly all the conflicts in the CIS countries. In connection with various political considerations, however, their legal status is made equal to the status of “volunteers”. Once Georgians brought down a plane and captured a mercenary – an officer of the Russian armed forces who fought for Abkhazia. Georgia demonstrated goodwill: it released the man and handed him over to Russia.

Report on the Practice of the Russian Federation, 1997, Chapter 5.3.

Rwanda

On the basis of replies by army officers to a questionnaire, the Report on the Practice of Rwanda states that mercenaries are not considered as civilians. The report concludes, therefore, that mercenaries are liable to attack.

Report on the Practice of Rwanda, 1997, Replies by army officers to a questionnaire, Chapter 1.1.

Sweden

At the CDDH, Sweden stated that the text of Article 42 quater of the draft Additional Protocol I (now Article 47) “should be complemented with a sentence stating that mercenaries are entitled to the protection laid down in Article 65 [now Article 75] in Protocol I”.

Sweden, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 198.

Switzerland

At the CDDH, Switzerland stated that it “regretted that there had been no reference in Article 42 quater [of the draft Additional Protocol I, now Article 47] to other provisions of the Protocol, in particular Article 65 [now Article 75]”.

Switzerland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 158, § 82.

Switzerland

In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:

5.1 Rules of international law concerning mercenarism

5.1.1 Art. 47 of the First Additional Protocol of 1977

…

5.1.2 Relevant instruments of the UN and individual regional organisations

…

5.1.3 Conclusions: Customary international law does not prohibit mercenarism

Switzerland, Report by the Swiss Federal Council on Private Security and Military and Companies, 2 December 2005, pp. 42–44.

[emphasis in original; footnotes in original omitted]

Switzerland

Switzerland’s ABC of International Humanitarian Law (2009) states:

Mercenaries

…

The First Additional Protocol to the Geneva Conventions (1977) denies mercenaries both the status of Combatants and of Prisoners of war.

…

Prisoners of war

…

… Mercenaries … on the other hand are not normally granted prisoner of war status.

Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 30 and 35.

United States of America

In 1980, in a memorandum concerning the international legal rights of captured mercenaries, the US Department of State stated:

The act of being a mercenary is not a crime under international law. An individual who is accused of being a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian protections of the international law applicable in armed conflict, including those specified in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The specific rights which such an individual would be entitled to vary depending on whether the conflict is an international conflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled to prisoner-of-war status … The protections of [common] article 3 [of the 1949 Geneva Conventions] would also apply to any captured individual accused of being a mercenary during a civil war. [Common Article 3] does not provide any immunity from prosecution to individuals for engaging in combatant acts. The provisions of the Geneva Conventions dealing with prisoners of war do not apply in civil wars, and combatants captured during civil wars are not prisoners of war within the meaning of international law.

United States, International Legal Rights of Captured Mercenaries, Memorandum prepared by the Attorney-Adviser in the Office of the Assistant Legal Adviser for African Affairs, US Department of State, 17 October 1980, reprinted in Marian Nash (Leich), Cumulative Digest of United States Practice in International Law, 1981-1988, Department of State Publication 10120, Washington, D.C., 1993–1995, pp. 3457 and 3463–3464.

United States of America

In 1987, the Deputy Legal Adviser of the US Department of State affirmed:

United States of America

In 1987, the Legal Adviser of the US Department of State stated:

For a third example [of why the Joint Chiefs of Staff judged the 1977 Additional Protocol I too ambiguous and complicated to use as a practical guide for military operations], article 47 of Protocol I provides that “a mercenary shall not have the right to be a combatant or a prisoner of war.” This article was included in the Protocol not for humanitarian reasons, but purely to make the political point that mercenary activity in the Third World is unwelcome. In doing so, this article disregards one of the fundamental principles of international humanitarian law by defining the right to combatant status, at least in part, on the basis of the personal or political motivations of the individual in question. This politicizing of the rules of warfare is contrary to Western interests and the interests of humanitarian law itself.

United States, Remarks of Judge Abraham D. Sofaer, Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 469.

Yugoslavia, Socialist Federal Republic of

In 1980, during a debate in the Sixth Committee of the UN General Assembly on the UN Mercenary Convention, the Socialist Federal Republic of Yugoslavia recalled that Article 47 of the 1977 Additional Protocol I provided that mercenaries did not have a right to the status of combatant or prisoner of war and concluded that mercenaries could not enjoy any protection under international law.

Yugoslavia, Socialist Federal Republic of, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/35/SR.23, 17 October 1980, § 70.

Zimbabwe

The Report on the Practice of Zimbabwe states: “Spies and mercenaries are likely to be regarded as combatants in Zimbabwe for purposes of being military targets. They are, however, unlikely to be afforded prisoner-of-war status and related protection if captured.”

Report on the Practice of Zimbabwe, 1998, Chapter 1.1.

VII. United Nations

UN Commission on Human Rights

In a resolution adopted in 2005 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 UN Commission on Human Rights called upon the international community “in accordance with its obligations under international law, to cooperate with and assist the judicial prosecution of those accused of mercenary activities, in transparent, open and fair trials”.

UN Commission on Human Rights, Res. 2005/2, 7 April 2005, § 10, voting record: 35-15-2.

UN Secretary-General

The mission dispatched by the UN Secretary-General in 1988 to investigate the situation of prisoners of war in the Islamic Republic of Iran and Iraq reported that:

Some of the prisoners detained in [the Islamic Republic of Iran] are not Iraqi nationals but come from other countries … The Iranian authorities call them mercenaries and have argued that, under Protocol I of the Geneva Conventions, they are not protected. The Iranian authorities contend that they could, according to custom, suffer capital punishment but have not been executed; on the contrary, they are treated as the other POWs. Since this seems to be the case, the legal argument about mercenaries has become redundant. (Otherwise, one would have to observe that [the Islamic Republic of Iran] is not a party to the Protocol mentioned, and in any event has not shown that the condition[s] of its article 47 have been fulfilled.) … The Iranian authorities … promised that the non-Iraqi prisoners also will be released after the cessation of hostilities.

UN Secretary-General, Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, UN Doc. S/20147, Annex, 24 August 1988, § 65.

VIII. Other International Organizations

No data.

IX. International Conferences

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts

The Rapporteur of Committee III at the CDDH stated with regard to Article 47 of the 1977 Additional Protocol I:

Although the proposed new article makes no reference to the fundamental protections of Article 65 [now Article 75 of the 1977 Additional Protocol I], it was understood by the Committee Group that mercenaries would be one of the groups entitled to the protections of that article which establishes minimum standards of treatment for persons not entitled to more favourable treatment under the Conventions and Protocol I.

CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, 17 March–10 June 1977, p. 455, § 27.

X. International and Mixed Judicial and Quasi-judicial Bodies

No data.

XI. International Red Cross and Red Crescent Movement

No data.

XII. Other

União Nacional para Independência Total de Angola (UNITA)

In an address to the nation in 1993, the President of UNITA stated: “Captured mercenaries will be summarily executed.”

UNITA, Address to the Nation by Jonas Savimbi, President, relayed live from Huambo, 9 March 1993.

2. Practice\Mercenaries

Practice Relating to Rule 108. Mercenaries