International standards

Over the past 20 years, the United Nations General Assembly, the Security Council, the Economic and Social Council and the Commission on Human Rights have adopted over a hundred resolutions condemning the activities of mercenaries and those who use them. A milestone was reached in 1989 with the adoption by the General Assembly of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

Mercenaries and mercenary-related actors are not a new phenomenon but have existed in a variety of forms and situations from time immemorial. Attempts to address this phenomenon raise a number of difficult issues that have not all been conclusively resolved.

International standards

Hague Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), Article 4

Where an armed conflict takes place between two or more States, other States may choose to support one belligerent party or may prefer to remain neutral. Neutral status entails very specific rights and duties that are governed by the law of neutrality.10 The basic premise of this law is that the neutral State must not take, or allow to be taken on its territory, any measure which provides support for one party to the conflict in return for immunity from hostile acts by the belligerents against its own territory or citizens.

Article 4 of the 1907 Hague Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land is of particular relevance to the question of mercenaries. It stipulates that “[c]orps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents”. The neutral Power thus has an obligation to prevent such activities from occurring on its territory. However, it cannot be held responsible where individuals cross the border of their own accord to offer their services to the belligerents.

This article in effect creates an obligation for States to prevent the formation of mercenary groups on their territory for the purpose of intervention in an armed conflict to which they have chosen to remain neutral. If they fail to do so, they are in violation of their obligations under international law.

Charter of the United Nations (1945), Article 2, paragraph 4

The 1945 Charter is the founding document of the United Nations. It describes the functions and powers of the principal organs and sets out the purposes and principles of the Organization as a whole. Article 2, paragraph 4, stipulates that:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

This provision essentially outlaws the use of force by one State against another, except in very specific circumstances spelled out elsewhere in the Charter (self-defense and enforcement measures sanctioned by the Security Council). Employing mercenaries to use force against another State comes within the scope of this prohibition.

Common article 3 of the Geneva Conventions (1949)

According to this article, in any conflict, whether of international or non-international character, "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."

Additional Protocol I to the1949 Geneva Conventions relating to the Protection of Victims of International Armed Conflict (1977), Article 47

Additional Protocol I contained the first international definition of mercenaries. Article 47 (2) of Additional Protocol I defines a mercenary in accordance with six cumulative criteria. All six criteria must be met for a person to be classified as a mercenary:

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

As the purpose of the international humanitarian law is to extend rather than restrict protection, the scope of this definition is narrow in order to ensure that the loss of special protection occurs only in limited circumstances.

The International Committee of the Red Cross has laid out three conditions that must be met for a person to directly be participating in hostilities:

• The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
• There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
• The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).[1]

International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989)

The International Convention Against the Recruitment, Use, Financing and Training of Mercenaries was adopted in 1989 and entered into force on 20 October 2001.

The Convention criminalizes mercenarism and includes those who recruit, use, finance or train mercenaries, making the Convention more than simply a tool for defining participants in a conflict and imposes on States parties a number of related obligations. It encompasses non-international armed conflicts as well as international conflicts.

Article 1 largely mirrors the definition of a mercenary contained in Article 47 of the Additional Protocol I to the 1949 Geneva Conventions (see above), but expands it to cover situations other than armed conflicts, in which persons are recruited for the purpose of participating in a concerted act of violence aimed at overthrowing a Government or otherwise undermining the constitutional order of a State, or undermining the territorial integrity of a State.

1. In such a situation, a mercenary is any person who:
   1. Is specially recruited locally or abroad in order to fight in an armed conflict;
   2. 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;
   3. Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
   4. Is not a member of the armed forces of a party to the conflict; and
   5. 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:
   1. Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:
      1. Overthrowing a Government or otherwise undermining the constitutional order of a State; or
      2. Undermining the territorial integrity of a State;
   2. 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;
   3. Is neither a national nor a resident of the State against which such an act is directed;
   4. Has not been sent by a State on official duty; and
   5. Is not a member of the armed forces of the State on whose territory the act is undertaken.

An offence is also committed by any person who recruits, uses, finances or trains mercenaries, attempts to do so, or is the accomplice of a person who commits or attempts to commit an offence set forth in the Convention. This indirect offence is deemed to have been committed even where the mercenaries in question have not yet taken part in hostilities. States parties have both positive and negative obligations in this regard. They should not only refrain from engaging in any of the designated activities but also take appropriate measures to prevent such activities by others. This applies in particular to activities whose purpose is to oppose the legitimate exercise of the right of peoples to self-determination. Furthermore, the offences established by the Convention should be made punishable by appropriate penalties reflecting their serious nature.

In addition to creating offences, the Convention sets out a framework to facilitate the prosecution of offenders at the national level. It requires States to ensure that their legislation makes prosecution possible. Any alleged offender present on their territory should be taken into custody and a preliminary inquiry opened. If the person concerned is not extradited to another State for trial, the case should be submitted to the competent national authorities. Throughout the proceedings, the alleged offender should benefit from fair treatment and judicial guarantees. States should cooperate with one another in both the prevention and prosecution of offences, including through the exchange of information. Lastly, the Convention establishes a procedure for the settlement of disputes between States parties concerning the interpretation or application of the instrument.

Right of peoples to self-determination

The right of peoples to self-determination is established by the Charter of the United Nations. It is at the core of international human rights law and is common to both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). This right is also defined in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations which underlines that:

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter” (A/RES/25/2625).

Multi-stakeholder initiatives developed to raise standards of private military and security companies

In the absence of an international legally binding instrument for the regulation, several initiatives have emerged in the past 15 years that endeavour to regulate private military and security companies. Nevertheless, given the weaknesses of self-regulatory regimes, the Working Group has explored and advocated for an international binding framework to regulate private military and security companies.

The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict

The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict was formulated in 2008. It reaffirms existing obligations under international humanitarian law and international human rights law applicable to States, including due diligence, in the context of their relationships to private military and security companies. It also identifies good practices for regulating these private companies.

Notably, contracting States are expected to abide by the requirements regarding respect for human rights and international humanitarian law. The Montreux Document is, however, limited in several significant respects, and is limited in its scope of application, given that it is focused on private military and security companies in armed conflict situations. It is not legally binding and does not create any new legal rules or obligations for States or private military and security companies.

The International Code of Conduct for Private Security Service Providers

The International Code of Conduct for Private Security Service Providers was drawn up in 2010. It applies directly to signatory private military and security companies when operating in “complex environments”. It lists a broad spectrum of rules that draw on international human rights law and international humanitarian law. The Code also commits signatory companies to exercising due diligence to ensure compliance with the Code, including in personnel vetting, and in ensuring monitoring of conduct. Companies commit to ensure that personnel receive training on international humanitarian law, international human rights law, international criminal law, and relevant criminal law. Signatory companies agree to establish accessible complaints mechanisms, and to offer remedy to victims.

The International Code of Conduct Association provides certification of compliance by private companies. This is done through an industry-based “quality and management standard”, subject to recognition by the Association’s Board of Directors. Certification of a private military and security company should attest to its exercising due diligence in ensuring that human rights standards are complied with in its systems and processes, and with respect to clients and contractors.

The open-ended intergovernmental working groups to elaborate the content of an international regulatory framework on the regulation, monitoring and oversight of the activities of on private military and security companies

In 2010, the United Nations set up the open-ended intergovernmental working group to debate the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies (hereinafter OEIGWG). That group was unable to reach agreement, and a second working group was established in 2017, with a different, broader and compromise mandate to elaborate the content of an international regulatory framework, without prejudging the nature thereof, relating to the activities of private military and security companies. Since 2019, there have been five sessions of the OEIGWG.

The Working Group on the use of mercenaries has participated extensively in these drafting sessions and intersessional consultations, making statements and commenting on the draft instrument.

The United Nations Guiding Principles on Business and Human Rights

The Guiding Principles on Business and Human Rights (UNGPs) are the global standard for preventing and addressing the risk of adverse impacts on human rights involving business activity, and they provide the internationally-accepted framework for enhancing standards and practices with regard to business and human rights.

They stipulate that the corporate responsibility to respect human rights requires that companies “avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur” and that they “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts” (principle 13). In order to do this, companies should exercise human rights due diligence. Heightened human rights due diligence may be required, commensurate with the level of risk of severe human rights impacts and the nature and context of the business operations, for example, when operating in high-risk environments.

Furthermore, “where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes” (principle 22). Where crimes are alleged, this “typically will require cooperation with judicial mechanisms” (commentary to principle 22). Businesses should “treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate” (principle 23).

Regional standards

Convention for the Elimination of Mercenarism in Africa (1977)

The Convention for the elimination of mercenarism in Africa was drafted by the members of the Organization of African Unity (now the African Union) and adopted in July 1977.

In the preamble, the Convention sets out its purpose as combating mercenaries’ threat to the independence, sovereignty, territorial integrity and harmonious development of the States members of the organization.

The definition of mercenary set out in Article 1 (1) of the Convention largely mirrors the definition outlined in Article 47 of Additional Protocol I, in that it does not apply to non-international armed conflicts. The key difference is that an individual need only be motivated by the desire for private gain and there is no requirement for it be substantially more than that offered to members of the armed forces of a State.

Article 1 defines a mercenary as "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 essentially 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; and
6. 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."

In one important aspect, the Convention for the elimination of mercenarism in Africa diverges substantively from Additional Protocol I by criminalizing the recruitment, training, financing and use of mercenaries by individuals, groups or associations, representatives of a State and States themselves in article 1 (2) and 1 (3).

Article 1 (2) extends mercenarism from an act undertaken by participants during an armed conflict to those on a group or State level that partake, finance or facilitate the use or action of mercenaries in any way. Article 1 (2) provides that:

The crime of mercenarism is committed by the individual, group or association, representative of a State and the State itself who with the aim of opposing by armed violence a process of self-determination stability or the territorial integrity of another State, that practises any of the following acts:

• (a) Shelters, organises, finances, assists, equips, trains, promotes, supports or in any manner employs bands of mercenaries;
• (b) Enlists, enrols or tries to enrol in the said bands;
• (c) Allows the activities mentioned in paragraph (a) to be carried out in any territory under its jurisdiction or in any place under its control or affords facilities for transit, transport or other operations of the above-mentioned forces.

Article 1 (3) states that “[a]ny person, natural or juridical who commits the crime of mercenarism… commits an offence considered as a crime against peace and security in Africa and shall be punished as such”.

In addition to creating a specific offence of mercenarism, States must take measures to eradicate mercenary activity by enacting legislation making the crime of mercenarism punishable by the severest penalties and by exchanging information on any mercenary activities that come to their attention. Further, States undertake either to prosecute or to extradite any person committing an offence under the Convention, and to afford mutual assistance in connection with any investigations and proceedings initiated in respect of the offence.

States may be accused of breaches of the Convention before any competent OAU or international tribunal, and their representatives may be punished. Lastly, the Convention stipulates that persons on trial for the crime of mercenarism are entitled to all the judicial guarantees normally granted by the State in whose territory they are being tried.

^[1] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, International Committee of the Red Cross, May 2009), p. 46.