Practice Relating to Rule 108. Mercenaries
Section B. Status of mercenaries
Switzerland’s Basic Military Manual (1987) states: “Mercenaries shall not have the right to combatant or prisoner-of-war status.”
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]”.
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
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.
5.1.2 Relevant instruments of the UN and individual regional organisations
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.
[emphasis in original; footnotes in original omitted]
Switzerland’s ABC of International Humanitarian Law (2009) states:
The First Additional Protocol to the Geneva Conventions (1977) denies mercenaries both the status of Combatants and of Prisoners of war.
Prisoners of war
… on the other hand are not normally granted prisoner of war status.