These include the international conventions specific to mercenary activity, international humanitarian law and customary international law.
The second set of laws comprises what could be referred to as the African continental regime. The last set is the different domestic laws that either deal with mercenary issues exclusively or create regulatory frameworks for the privatised military industry in general. There is a great deal of literature on all these regimes and it will not be useful to delve into details here see for example Fallah ; Desai However, very little jurisprudence has emerged from these laws that indicate how disputes related to anti-mercenary law arise and how they have been solved.
Most cases that have been tried on the domestic scene have not centred on the offence of conducting mercenary activity per se, but on related offences such as illegal acquisition or transportation of firearms or violation of immigration laws. On the international scene, very little has happened since October when the UN Mercenary Convention came into force.
What is perhaps of more relevance to the development of mercenary law is that the international treaty law and the continental regimes both treat mercenary activity as a crime. But in the current period, much of the conventional attitudes are tested by the evolution of the security industry as determined by the imperatives of globalisation. Mercenaries, according to the African states, threatened their sovereignty and fought against liberation movements, thus hindering the political and economic development of the continent. African states were able to push this agenda to the forefront of international concern.
Although the apathy towards mercenarism could have come to an end concomitantly with the enactment of the Charter of the UN and the Universal Declaration of Human Rights, it was the reintroduction of the idea by Africans that made it such a compelling normative issue. By the time the Additional Protocol I of the Geneva Conventions was drafted, a reasonable constituency opposed to the recklessness war by white soldiers for hire against nascent African states and other weaker groups had been canvassed.
Their demands were strengthened by their attainment of independence in the late s and early s and the growing spate of coups that occurred thereafter. Independent African states that had joined the UN were instrumental in pushing the anti-mercenary agenda. The aim of this resolution was to eliminate threats to liberation processes. It declared mercenarism by colonial and racist regimes to be a criminal act. In the next year, the General Assembly included mercenarism in its definition of aggression resolution When the African states adopted the OAU Charter in , they declared in it their determination to protect their sovereignty and to work towards the liberation of other states still under the yoke of colonialism.
Mercenarism was still seen as one obstacle to achieving these goals. Thus, through a collective effort, they pushed for normative action at the continental level. The first attempt came in the wake of the arrest and trial of mercenaries in Angola in As a result, the International Law Commission of Inquiry on Mercenaries prepared a draft convention on the prevention and suppression of mercenarism in Luanda Lockhood The Convention enacted a definition of mercenaries that reflected the regional approach to mercenarism.
The following year, African states under their umbrella organisation, the OAU, came together at Libreville and enacted the Convention on the Elimination of Mercenarism in Africa. This convention contains what could aptly be described as the continental legal regime on mercenary activity.
Basically, the Convention codifies the criminality of mercenarism and places the responsibility for prosecuting offenders on member states. In terms of article 6 states are required to forbid the recruitment, training, financing, procurement of equipment, or any other activity related to mercenarism being conducted in their territory. The convention also calls for cooperation among states in dealing with offenders.
Convention for the Elimination of Mercenarism in Africa
The convention was the culmination of efforts by African states to protect themselves against the threats by rebel movements and the use by such movements of foreign mercenaries. By that time the African experiences reflected a rather grim picture: Apart from civil wars, mercenaries effected or threatened military coups against legitimately elected governments in the Comoros in , Benin in and the Seychelles in Zarate However, even among the loudest of voices calling for the elimination of mercenaries, there was some reluctance to deny legitimate governments the opportunity to acquire military support from private sources.
The reason is not removed from the overall purpose of OAU. Indeed, as Singer noted, the organisation itself sponsored armed struggles against colonial regimes and allowed the use of external fighters to achieve its goals. Acceptable and unacceptable types of military services offered by foreigners were distinguished on the basis of transparency and state responsibility.
The main principle was the declaration that wars of aggression may constitute a crime against peace, which was accountable under international law. The principle was derived from article 19 3 of the International Law Commission draft articles on state responsibility, which provided that a serious breach of an international obligation of essential importance for the maintenance of international peace and security may constitute an international crime for which a state may be criminally liable Rosenstock ; Arangio-Ruiz The other principles contained in the declaration were the prohibition against use of force to solve international disputes, the duty to refrain from acts of reprisals and the use of force to deny people the right to self-determination.
The code later formed the basis for the ICC treaty, which perhaps explains why the ICC treaty did not include the crime of mercenarism within its jurisdiction. The most recent UN treaty that is devoted to the criminalisation of mercenary activity is the International Convention Convention against the Recruitment, Use, Financing and Training of Mercenaries, which came into force on 20 October It enjoins states to make offences outlined in the convention illegal under domestic law and prescribe appropriate penalties for such violations.
But while the convention recognises the importance of cooperation in combating the offence, it still places most responsibility on the state on whose territory the offence has been committed. This notwithstanding, the convention strengthens interstate relations by echoing the intension of the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States. It thus attempts to create a regime of law that is sensitive to the maintenance of good relations among member states. The convention has elaborate notification procedures, which are set out in article The states on whose territory the alleged offence is committed are required to conduct an enquiry, and they must notify all other states with an interest in the matter and the UN of the outcome of such enquiry.
In addition, states who have either taken suspects into custody or consider themselves privy to any matter related to an offence alleged to have been committed under the Convention, must notify other states having an interest in that same matter to that effect. However, in discharging their responsibilities under the convention, states must take into account the principles of international law, including humanitarian law.
At the same time, states are allowed latitude to apply their laws in respect of trial and punishment of the offences created by the convention. It is noteworthy that the convention regulates mercenary activity inside and outside the conflict situation — both in war and at the times of peace. Thus its reach goes beyond the limitations of article 47 of Additional Protocol I. The mercenary, without consideration of the nature of conflict in which he finds himself, will be criminally liable.
Also, the convention forges cooperation between the home state and the contracting state in curbing mercenarism.
mercenarism
The other strength of the convention is in its specific regulations on the protection of the rights of suspects. In terms of article 10 persons who have been detained or any other measures taken against them with regard to the convention have the right to contact the representatives of the state in which they claim residence. They are also entitled to be visited by a representative of such a state. This is in tandem with the current development in the law relating to the rights of diplomatic protection.
In Kaunda v President of the Republic of South Africa [ 10 BCLR CC ] the South African Constitutional Court stated that the state has a duty to protect citizens rights that are contained in section 7 2 , which requires that they be provided with diplomatic protection against threatened violations of fundamental human rights. Although such obligation was discretionary, the decision made by government was justiciable. The debate arises from an equally contested premise that international treaty regimes have gaps that can only be filled by evoking rules of customary international law.
Those who support the argument that there is a customary international law ban on mercenarism have based their claim on other international norms and the seemingly uncompromising approach of UN institutions towards the threat of mercenarism. Thus, according to the UN Special Rapporteur on mercenary activity, the rule against mercenarism has become customary international law because the activity infringes on individual rights and freedoms, and is inconsistent with political aspirations of the international community.
In his report on the question of the use of mercenaries as means of violating human rights and impeding the exercise of the rights of peoples to self-determination, 10 the rapporteur stated.
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The aim of customary international and treaty law is to condemn a mercenary act as the buying and selling of criminal services in order to interfere with the enjoyment of human rights, sovereignty, or the self-determination of people; and there is international jurisprudence condemning interference by one state, not to speak of individual organizations, in the internal affairs of another state and in the lives of its peoples Zarate The argument that UN activity could point to the existence of the rule of customary international law was advanced decades earlier by Cheng His view was that custom could be deduced from declarations made in General Assembly resolutions, such resolutions constituting at once elements of state practice and evidence of necessary opinio juris.
Although this opinion was popular at the time, it was subsequently rejected by the International Court of Justice in the two cases. In classical international law, a rule of customary international law requires two ingredients: Here the International Court of Justice stated in connection to this rule:.
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief ie, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates. Some scholars have suggested a mixed approach that considers whether a mercenary activity has violated a norm against territorial sovereignty, political independence and rules against non-interference, before it can be said to be contrary to customary international law Gaultier et al Then the determination would not be based on mercenary activity as such but on the purpose of the activity and who the beneficiary is.
In such an event, however, a total ban could be seen to be contrary to some norms of international law, especially those that relate to the maintenance of international peace and security and the protection of national sovereignty. Moreover, state practice has never supported wholesale the ban on mercenarism.
The slow growth of mercenary law has not helped to establish any consistent pattern of legislative behaviour from which state practice and the rather elusive concept of opinio juris could be derived. The entry into force of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries in merely added to the number of UN resolutions that signify the international apathy towards the use of mercenaries to destabilise governments or to suppress recognised national liberation movements.
Indeed, as evidently surmised by contemporary literature, the pendulum had already swung in favour of absence of such a rule. And even though some private security firms may perform the same functions as mercenaries, they still fall outside the definition of the prohibited mercenarism provided by existing law. These guards are actually private armed soldiers and they constitute new modalities of mercenaries. In light of all these arguments, addressing the definitional conundrum should therefore be the first step towards creating a basis for normative reform.
But this will by no means be an easy task. Enrique Bernales Ballesteros, a former UN special rapporteur on the question of the use of mercenaries, acknowledged this difficulty in his report to the UN Economic and Social Council in February when he observed that such an undertaking may be complex if not impossible.
The earliest definition, which has become the basis for subsequent enactments at the international and regional fora, are contained in the instruments of international humanitarian law. A fundamental precept of the law of armed conflict has always been the distinction between jus ad bellum and jus in bello: The main concern of international humanitarian law has been the protection of persons in times of war.
Since mercenaries have always been actors in the war arena, it is no surprise that they became a subject of this law. The first humanitarian instrument to deal with mercenaries and so provide a definition was the Additional Protocol 1 of the Geneva Conventions. Basically, it had the effect of excluding individuals considered to be mercenaries from the benefits the law accords to combatants, namely prisoner of war status.
Article 47 2 defines a mercenary as a person who: The significant additions were the declaration that mercenarism was a crime and provision for the imposition of the death penalty on persons found guilty of the offence. When the UN Mercenary Convention was enacted in , the definition of mercenary was extended to include activities that undermine the state. Specifically, the Convention defined mercenary activity in two parts.
Convention for the Elimination of Mercenarism in Africa | African Union
Commentators from different fields have analysed the weaknesses of these definitions, pointing to the narrow threshold, lack of uniformity and the general orientation towards abolition rather than regulation. Another weakness is that they exclude private companies and many other operatives who may be capable of performing the same activities as mercenaries.
Financial or military support and assistance to belligerent groups from outside the combat zone may have just as serious an effect. Furthermore, it may be difficult to prove direct participation in such circumstances. Condition e of the same article strips the definition of any practical or legal significance. By incorporating mercenaries into the national army their status obviously changes. The concept of motivation which runs through all of them has attracted considerable criticism as well.
Additional Protocol I uses the concept of the desire for private gain, a promise of material compensation exceeding that payable to persons of the same rank. The OAU Convention has the same threshold but omits the comparative requirement. The UN Convention echoes this requirement. However, it is not only the promise of material gain that motivates individuals or groups to wage wars far away from home. A person or group could be motivated by political, personal, ideological or religious factors.
It is improbable that the definition of mercenaries could be expanded to include private security companies. Moreover, such an undertaking may not be feasible considering the trend of normative action at the international level. It is also unlikely that states such as the US and Great Britain will support such a measure. Mercenarism - definition of mercenarism by The Free Dictionary https: References in periodicals archive?
Al-Tayyib said the growing of phenomenon of mercenarism and terrorism impedes development and stability in Africa and is constituted one of causes of Africans suffering. NISS Deputy Director calls for halting support to negative movements, bring their leaders to justice.
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Mapping the extent of mercenarism and its impact on human security in Africa' in S. Performing the common good: The private military company complex in Central and Southern Africa: Private military firms, the American precedent, and the Arab Spring. This private sector involvement has been described by some leading scholars as a form of corporate mercenarism. A Comparative and Economical Analysis.