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Commentary - Mercenaries
    [p.571] Article 47 -- Mercenaries


    [p.572] General remarks

    1789 The problem of mercenaries was first raised at the United Nations in1961 in connection with the Katangese secession. (1) Later on, in 1964, the Congolese government itself recruited mercenaries to suppress an insurrection. When they were subsequently instructed to lay down their arms, most of them refused to do so and openly rebelled against the government (1967). The latter then called upon the Security Council, as well as the Organization of African Unity (OAU), to which it had already appealed in 1964. The Security Council (2) and the Conference of Heads of State and Government of the OAU requested States to prevent the recruitment of mercenaries in their territory for the purpose of overthrowing the governments of foreign States. The epilogue to this unhappy affair took place in Rwanda, where the mercenaries eventually sought refuge. They were repatriated with the help of the ICRC, on condition that they undertook not to return to the African continent. (3)

    1790 Since then, there has scarcely been any conflict involving military operations in which the presence of mercenaries has notplayed a part in one way or another. Nevertheless, since 1968 the United Nations General Assembly has adopted a firm position stating that the practice of employing mercenaries against national liberation movements is a criminal act, (4) and the mercenaries themselves are criminals. In 1977 it was once more the Security Council which adopted, by consensus, a resolution condemning the recruitment of mercenaries with the objective to overthrow governments of Member States of the United Nations. (5) Also in 1977 the Council of Ministers of the OAU adopted a Convention for the Elimination of Mercenarism in Africa at its 29th session in Libreville. (6) Based partly, as regards the definition of the term "mercenarism" as such, on previous [p.573] drafts, (7) and, with the exception of the problem of payment, on the definition of the term "mercenary" given in the present Article 47 , this Convention was a response to the concern of those who see the text of the Protocol as paving "the way for the conclusion of more stringent regional instruments", (8) on the assumption that Article 47 was only "the first, and that other more satisfactory international texts would follow". (9) In fact, this OAU Convention of 1977 was an attempt to respond to the wishes of some delegations who had participated in the Diplomatic Conference, wishes which could not be met by the demands of the inevitable compromise. It condemns the mercenarism as such, and not only the mercenary himself (Article 1 , paragraph 2). It contains a pure and simple prohibition on according a mercenary the status of combatant and prisoner of war (Article 3 ). Finally, the definition of the term "mercenary" diverges from that of the Protocol on one point, as stated above. (10) At the time of writing, a draft of an "international Convention against the recruitment, use, financing and training of mercenaries" is being formulated within the United Nations. (11)

    1791 The draft presented by the ICRC at the Diplomatic Conference did not contain any provisions on mercenaries, which means that they would have been treated like any other categories of combatants and prisoners of war recognized by the Third Convention (Article 4 ) and by the Protocol (Article 42 of the draft), provided that they complied with the conditions laid down. The Conference, which had shown itself to be fairly liberal, as we have already seen in the analysis of Articles 43 ' (Armed forces) ' and 44 ' (Combatants and prisoners of war) ' regarding the granting of combatant or prisoner-of-war status to members of the armed forces of a Party to the conflict, came to a different conclusion on this matter, at least in principle. Whatever conclusions one could actually draw from an analysis of Article 47 , the concession made by this article is not without importance, for it is not the task of humanitarian law to make distinctions based on the motives which induce a particular person to participate in an armed conflict. However, as things stand, it could be said that this was no more and no less than reparation -- [p.574] it could be considered a moral reparation -- for past wrongs, and a preventive measure against possible damage in the future. Whatever the facts of the matter, no one, or virtually no one, at first opposed the principle of this provision. (12)

    1792 Article 47 was adopted by consensus at a plenary meeting. (13) The result of a compromise, it was approved by some unquestioningly, though it was criticized by others, who considered it to be timorous, incomplete or of doubtful orientation. (14) One delegation stated that it did not belong in Protocol I, which has an essentially humanitarian character. (15)

    1793 Paragraph 1 deals with the status of the mercenary, while paragraph 2 is aimed at resolving this most difficult problem of the definition of this category of combatants for the first time in international law.

    Paragraph 1 -- Status of the mercenary

    1794 The refusal to confer prisoner-of-war status to those persons or categories of persons to whom this status should, in principle, be accorded, has been the subject of a number of regrettable precedents in the practice of States. (16) In general, humanitarian law endeavours to extend the protection of the Third Convention to new categories of combatants or to new situations, and not to refuse this protection, as is evident from Articles 43 ' (Armed forces), ' 44 ' (Combatants and prisoners of war) ' and 45 ' (Protection of persons who have taken part in hostilities) ' of the Protocol. The provision under consideration here goes the other way because of the shameful character of mercenary activity.

    [p.575] 1795 However, by providing that a mercenary "shall not have the right" to be a combatant or a prisoner of war, the Conference still resisted the most extreme demands. In fact, many delegations wished the wording to be more stringent, viz., that the mercenary "shall not be accorded" this status. (17) This would have led to a surprising situation for a humanitarian text, since any Contracting Party according such status to a mercenary, would then have violated the Protocol. The result would have been all the more shocking, as the problem was broached in the Protocol in a wider context than that of other international texts relating to the same subject. In the Protocol the problem of mercenaries is actually dealt with without taking into account the cause they serve, which is not the case in the United Nations resolutions. (18) Thus, like Article 46 ' (Spies) ' concerning spies, the present provision permits a Party to the Protocol to deny the status of combatant and prisoner of war to a mercenary; it does not oblige the Party to deny such status, irrespective of the cause served. (19)

    1796 The effect of the denial of the status of combatant and prisoner of war in case of capture is to deprive the mercenary of the treatment of prisoner of war as laid down in the Third Convention, and to make him liable to criminal prosecution. Such prosecution can be instigated both for acts of violence which would be lawful if performed by a combatant, in the sense of the Protocol, and for the sole fact of having taken a direct part in hostilities (paragraph 2(b)). This is where the crucial question of guarantees arises.

    1797 Deprived of the status of combatant and prisoner of war, a mercenary is a civilian who could fall under Article 5 of the fourth Convention. It is precisely this article which removes an important part of the guarantees from any person under legitimate suspicion of being engaged in an activity endangering State security. (20) Some delegates, who were anxious that Article 47 might be given a [p.576] dissuasive character, wished to leave it at that. However, it still remained necessary for the mercenary status of the person concerned to be established on the basis of the definition of paragraph 2. Meanwhile, i.e., pending determination of the status of such a person by a competent tribunal (Third Convention, Article 5 , paragraph 2; Protocol, Article 45 -- ' Protection of persons who have taken part in hostilities, ' paragraphs 1 and 2), he is presumed to be a prisoner of war (Protocol, Article 45 -- ' Protection of persons who have taken part in hostilities, ' paragraph 1) and is consequently protected by the Third Convention (Article 5 , paragraph 2).

    1798 If the tribunal comes to the conclusion that the person concerned is a mercenary in the sense of paragraph 2 of Article 47 , Article 75 ' (Fundamental guarantees) ' applies, and his rights of communication continue to be guaranteed, even in occupied territory, notwithstanding the provisions of Article 5 of the fourth Convention (Article 45 , paragraph 3, of the Protocol). It is regrettable that this qualification is not expressly included in the text of Article 47 . (21) However, it is understood, as the Rapporteur's report reveals that

    "although the proposed new article makes no reference to the fundamental protections of Article 65 [75], it was understood by the Working Group that mercenaries would be one of the groups entitled to the protections of Article 65 [75] [ ]" (22)

    This interpretation was expressly accepted at a plenary meeting by the representative of Nigeria. (23) Moreover, it was confirmed by a large number of statements, (24) and it should therefore be considered that the question has been unequivocally settled, particularly as it directly ensues from the text of Article 45 ' (Protection of persons who have taken part in hostilities). ' As regards the above-mentioned OAU Convention, Article 11 of this states that mercenaries "shall be entitled to all the guarantees normally granted to any ordinary person by the State on whose territory he is being tried". Obviously the guarantees laid down by the International Covenant on Civil and Political Rights, and all other applicable instruments relating to human rights, also continue to apply in the case of participation in this agreement.

    1799 However, the solution to this problem introduced by the Conference, and Article 47 in its entirety, continued to be criticized for another reason. Several delegations from various quarters declared that the prohibition on using mercenaries should have been based on a prohibition on recruiting and enlisting mercenaries, and therefore apply at the level of States, and not, or not solely, at [p.577] the level of individuals, (25) possibly by means of a special treaty. Some delegations expressed the wish that "the new article would encourage governments which had not yet prepared rules of criminal law prohibiting the recruitment, training, formation and commitment of mercenaries to take the necessary legislative action in order to eliminate completely the crime of the mercenary system". (26)

    1800 One last point deserves a mention. Article 47 forms part of Protocol I, which deals only with international armed conflict to the exclusion of armed conflicts which are not of an international character. Yet the presence of "mercenaries" is frequently noted precisely in armed conflicts with a non-international character. In case of capture, these mercenaries undeniably benefit from the protection of Article 3 of the Conventions, and the corresponding provisions of Protocol II, when the latter is applicable, as well as from the provisions of international human rights legislation, when these apply. In fact, the person concerned will not normally be prosecuted on account of his mercenary status, but for endangering State security. (27)

    Paragraph 2 -- Definition of mercenary

    1801 There are few words which suffer greater misuse these days than the term mercenary. Whenever an armed opposition movement arises against a particular cause, the adversary is immediately defined as a mercenary. In the long run such inexact use of language could constitute a danger with regard to the respect of humanitarian law applicable in cases of international armed conflict, and for this reason alone, it was perhaps useful for the Diplomatic Conference to concern itself with this concept.

    1802 Mercenaries have existed since time immemorial. (28) Nowadays mercenaries only represent one section of the vast category of international volunteers who are defined lato sensu as individuals whose voluntary personal membership of an armed force involves certain elements of a foreign character. (29) In principle, what [p.578] distinguishes a mercenary from an international volunteer is the cause and the motive which lead him to join up, although this is not always easy to determine. (30) We will show that the present provision makes the pursuit of monetary gain virtually the determining factor in defining a mercenary, once the other conditions of the definition are fulfilled.

    1803 However, before proceeding to examine these conditions, it is appropriate to recall that although, under the terms of the conventional law of neutrality, "corps of combatants must not be formed nor recruiting agencies opened on territory of a neutral Power", (31) the responsibility of this Power "is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents"; (32) as for the individual concerned, he "shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act", (33) regardless of the motives, pecuniary or otherwise, which provoked his actions. This traditional rule no longer automatically applies under the terms of paragraph 1 to a mercenary as defined in the present provision, but this holds true only for such a mercenary.

    1804 The various conditions enumerated sub-paragraphs (a) to (f) are cumulative, and should consequently all be met for the person concerned to qualify as a mercenary.

    ' Sub-paragraph (a) -- Being especially recruited locally or abroad in order to fight in an armed conflict '

    1805 This condition excludes volunteers who enter service on a permanent or long-lasting basis in a foreign army, whether as a result of a purely individual enlistment (French foreign Legion, Spanish Tercio) or an arrangement concluded by their national authorities (for example, the Nepalese Ghurkhas in India, the Swiss Guards of the Vatican). Thus a volunteer who has been specially recruited locally or abroad in order to fight in an armed conflict can be considered as a mercenary in the sense of Article 47 , provided that the other conditions mentioned below [p.579] are also met; not a volunteer who is a regular member of the armed forces of a belligerent irrespective of the particular armed conflict in which he is participating (see also below, sub-paragraph (e)).

    ' Sub-paragraph (b) -- He does, in fact, take a direct part in the hostilities '

    1806 Only a combatant, and a combatant taking a direct part in hostilities, can be considered as a mercenary in the sense of Article 47 . Consequently this condition excludes foreign advisers and military technicians, who are found in numerous countries nowadays, even when their presence is motivated by financial gain, as far as they are concerned (sub-paragraph (c) below). The increasingly perfected character of modern weapons, which have spread throughout the world at an ever-increasing rate, requires the presence of such specialists, either for the selection of military personnel, their training or the correct maintenance of the weapons. As long as these experts do not take any direct part in the hostilities, (34) they are neither combatants nor mercenaries, but civilians who do not participate in combat.

    ' Sub-paragraph (c) -- He is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces '

    1807 For the protagonists of this article, this is the crux of the matter. In contrast to a volunteer who is moved by a noble ideal, the mercenary is considered to offer his services to the highest bidder, since he is essentially motivated by material gain. The highest bidder will normally be found on the richest side. However, as all soldiers of all armies receive a remuneration for maintaining themselves and their families, it was necessary, in order to be consistent, to specify that this remuneration should be substantially higher than that of the members of the army. (35)

    1808 Finally, "recognizing that some ranks and functions in armed forces are likely to be paid more than others", the text provides for:

    "an objective test to help determine motivations of persons serving with the armed forces of a Party to the conflict; such persons may not be considered to be motivated essentially by the desire for private gain unless they are promised compensation substantially in excess of that promised or paid to [p.580] combatants of similar rank and function in the armed forces of that Party. Thus, pilots would be judged by the same standards of compensation as other pilots, not by the standard of infantrymen". (36)

    1809 However, this solution gave rise to a number of criticisms. In the first place, because it is far from clear that all mercenaries are essentially motivated by private gain, at least by immediate material gain. (37) Moreover, it was argued that this formulation would encourage the appearance of a new category of mercenaries, those who base their actions on ideology. (38) In the third place,

    "a Party to a conflict would be hard put to it to prove generous remuneration, since mercenaries' wages were paid either in their own countries or into bank accounts in other countries". (39)

    However, since the intention in the Protocol, after careful consideration, was, on the one hand, to make a distinction between mercenaries pursuing their own "interests" and selfless international volunteers, and on the other hand, to disregard the particular cause served by the mercenary, and even the fact that he uses his skill to illegal ends, no other path was possible. (40)

    1810 In conclusion, "mercenaries" who fulfil all the other conditions of Article 47 , but who receive a salary identical to that of the combatants of a similar rank and function of the army in which they are serving, are not mercenaries in the sense of the Protocol, even if they are engaged in combat against a Member State of the United Nations in a so-called war of aggression, or against a national liberation movement.

    ' Sub-paragraph (d) -- He is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict '

    1811 Whether or not one is sympathetic to the cause that they are serving, nationals of a Party to the conflict who voluntarily engage in combat in the ranks of that Party, are not mercenaries in the sense of the Protocol. (41)

    1812 In many countries the enlistment into the armed forces of residents (i.e., foreigners) is expressly provided for, and even compulsory. (42) Obviously this does not imply the right to force a prisoner of war or a person protected by the Fourth [p.581] Convention to serve in the armed forces of an enemy power (Third Convention, Article 130 ; fourth Convention, Article 147 , "grave breaches"). However, for foreign residents in the true sense of the word, the Rapporteur explains that: "it was felt that persons in these groups should not be placed at risk of being considered mercenaries". (43)

    ' Sub-paragraph (e) -- He is not a member of the armed forces of a Party to the conflict '

    1813 Perhaps with some justification it has been said that this clause made the definition of mercenaries completely meaningless. (44) In fact, it is sufficient for States which employ them, to make them members of their armed forces for them no longer to be mercenaries. Nevertheless, this provision was necessary, because many States enlist foreigners in their armed forces on a regular basis, and without making these into corps as described in sub-paragraph (a). (45) However, such persons are not always specially recruited to take part in a particular armed conflict (sub-paragraph (a)), and this could form an element distinguishing those foreigners who are "regularly" enlisted and those who are enlisted as mercenaries, although this possibility is often expressly provided for in case of war. (46) As each of the conditions listed in sub-paragraphs (a) to (f) must be present for the definition to be met, and each State has control over the composition of its armed forces subject to the provisions of Article 43 ' (Armed forces), ' (47) it is clear that enlistment in itself is sufficient to prevent the definition being met.

    ' Sub-paragraph (f) -- He has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces '

    1814 A mercenary is a volunteer who, at least officially, enlists on his own account and not on behalf of a third State. Thus there is no question of qualifying corps of troops who have been sent by certain States to different parts of the world for one reason or another, as mercenaries, even if they consist of volunteers who are well rewarded and who in case of need are called upon to take a direct part in hostilities.

    ' J. de P. '


    NOTES

    (1) [(1) p.572] Security Council Resolutions 161A of 21 February 1961, and 169 of 24 November 1961, and General Assembly Resolution 1599 (XV) of 15 April 1961, calling for the withdrawal of mercenaries from the Congo;

    (2) [(2) p.572] Resolutions 239 of 10 July 1967, and 241 of 15 November 1967;

    (3) [(3) p.572] ICRC annual report 1967, pp. 29-35, and 1968, pp. 20-21;

    (4) [(4) p.572] Resolution 2465 (XXIII) of 20 December 1968, confirmed in particular by Resolutions 2548 (XXIV) of 11 December 1969, 2708 (XXV) of 14 December 1970, 3103 (XXVIII) of 12 December 1973, 33/24 of 8 December 1978. See also A.A. Yusuf, "Mercenaries in the Law of Armed Conflict", in A. Cassese (ed.), ' The New Humanitarian Law of Armed Conflicts, ' op. cit., pp. 119-121;

    (5) [(5) p.572] Resolution 405 of 16 April 1977;

    (6) [(6) p.572] Initialled by the representatives of the OAU States at the 14th Summit Conference (Libreville, July 1977), entered into force on 22 April 1985. On this action by the United Nations and the Organization of African Unity, see in particular A. Cassese, "Mercenaries: Lawful Combatants or War Criminals?", 40 ' ZaöRV, ' No. 1, 1980, pp. 1-30, and M. Riley, "Mercenaries and the Rule of Law", 17 ' International Commission of Jurists, The Review, ' December 1976, pp. 51-57, as well as E.I. Nwogugu, "Recent Developments in the Law Relating to Mercenaries", XX-1-2 ' RDPMDG, ' 1981, p. 9;

    (7) [(7) p.573] Draft Convention on the Elimination of Mercenarism in Africe, presented by a committee of experts of the OUA at the Conference of Heads of State, which met in Rabat in 1972, and Draft Convention on the Prevention and Suppression of Mercenarism, drawn up by an international investigation committee invited to be present at the trial of thirteen mercenaries who had participated in the civil war in Angola, in Luanda in 1976;

    (8) [(8) p.573] O.R. XV p. 193, CDDH/III/SR.57, para. 22;

    (9) [(9) p.573] Ibid., p. 201, para. 51; also see O.R. VI, pp. 156-158, CDDH/SR.41, and for the Rapporteur's report, O.R. XV, pp. 510-511, CDDH/III/369;

    (10) [(10) p.573] Let us recall that the Definition of aggression adopted by the United Nations General Assembly (Res. 3314 (XXIX) of 14 December 1974, adopted without a vote) includes in Article 3, sub-para. (g), amongst the acts which qualify as an act of aggression: "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another State" when they are of such gravity as to amount to the acts listed in the preceding sections of the same article, or "substantial involvement" in such acts. It is not the mercenary who is incriminated here, but the State which permits the sending of mercenaries;

    (11) [(11) p.573] See in particular, "The Report of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries", General Assembly Official Documents, 39th session, supplement No. 43 (A/39/43) (as regards the definition of mercenaries in this draft, see infra, note 18);

    (12) [(12) p.574] This does not mean that there were no problems. Independently of the deliberations of the Conference of Government Experts (' CE 1972, Report ', vol. I, p. 28, para. 0.23), it was during the long general debate of the second session of the Conference relating to Articles 42 and 42 bis (the present Articles 44 and 45), that the problem of mercenaries was broached for the first time by many delegations who were not prepared to recognize this category of combatants (O.R. XIV, pp. 342-343, CDDH/III/SR.34; p. 344, para. 56; p. 348, para. 75; CDDH/III/SR.35, p. 356, para. 6; p. 360, para. 18; pp. 361-362, para. 24; p. 362, para. 26; p. 369, para. 63; p. 370, para. 68; CDDH/III/SR.36, pp. 373-374, paras. 1-4; p. 375, para. 10; p. 377, para. 19; p. 381, para. 34; p. 383, para. 39. At the third session the representative from Nigeria presented a draft of Article 42 quater in the Working Group (O.R. III, p. 192, CDDH/III/GT/82) which, although it met with hardly any objections in principle, did not gain unanimous approval (O.R. XV, pp. 112-113, CDDH/III/SR.49, paras. 24-31), and, at the end of the session the Rapporteur of Committee III presented an extensive report on the discussions of the Working Group on this subject (ibid., pp. 404-407, CDDH/236/Rev. 1, paras. 95-108). The problem was then taken up at the fourth session, but with a new approach by way of private consultations between the representative of Nigeria with other delegations. The new draft which emerged from these consultations, the present Article 47, was then adopted without any difficulty by Committee III (ibid., pp. 189-190, CDDH/III/SR.57, paras. 4-7; and pp. 510-511, CDDH/III/369). During the explanations of vote in the Committee, only two delegations indicated that they would have abstained, if the article had been put to the vote; see ibid., pp. 191-202, CDDH/III/SR.57, and particularly p. 195, para. 28 and p. 201, para.55);

    (13) [(13) p.574] O.R. VI, p. 156, CDDH/SR.41;

    (14) [(14) p.574] Ibid., pp. 156-161, and pp. 175-176, 182, 184-185, 191-194, 197-198, 202-204;

    (15) [(15) p.574] Ibid., p. 158, para. 82;

    (16) [(16) p.574] This was the case during the Second World War (see 12 ' Law Reports, ' The German High Command Trial), and afterwards (see ' Commentary III, ' pp. 413-414);

    (17) [(17) p.575] Cf. the initital proposal of Nigeria, O.R. XV, p. 112, CDDH/III/SR.49, para. 24;

    (18) [(18) p.575] Thus Resolution 3103 (XXVIII) of the General Assembly only incriminates mercenarism to the extent that it is employed by colonialist or racist governments or governments of alien occupation against a national liberation movement. The text of the draft UN convention contains a strict version: Mercenaries shall in no case be legitimate combatants and shall not be entitled to prisoner-of-war status (Art. 3). Moreover, it proposes either to take over literally the definition of mercenary given in the Protocol, or to specify that the term "mercenary" means any person specially recruited in order to engage in violence against a (foreign) State or its government (Art. 2). However, other proposals were also advanced (see Report of the Ad Hoc Committee of the General Assembly, 39th session, supplement No. 43 (A/39/43, p. 28));

    (19) [(19) p.575] On this point, see the remarks of E. David, ' Mercenaires et volontaires internationaux en droit des gens, ' Brussels University, 1978, p. 392. See also, by the same author, "Les mercenaires en droit international (Développements récents)", 13 RBDI, No. 1-2, 1977, p. 197;

    (20) [(20) p.575] Account should be taken, however, of the possible diplomatic protection of the State of which the mercenary is a national. Article 4, paragraph 2, of the Fourth Convention does in fact provide that "nationals of a neutral State who find themselves in the territory of a belligerent State [...] shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are". They are not covered by Article 5 of the Fourth Convention;

    (21) [(21) p.576] Several delegations openly deplored this at the plenary meeting; see O.R. VI, p. 158, CDDH/ SR.41, paras. 82 and 88; p. 160, para. 98; p. 161, para. 105; pp. 175, 182, 194-195, 198. The same happened in Committee III; see O.R. XV, p. 191, CDDH/III /SR.57, para. 14; p. 194, paras. 25; p. 195, para. 28; p. 198, para. 37; p. 199, para. 41; p. 202, para. 56;

    (22) [(22) p.576] O.R XV p. 511 CDDH/III/369;

    (23) [(23) p.576] O.R. VI p. 157 CDDH/SR.41, para. 81;

    (24) [(24) p.576] For the plenary meeting, see ibid., p. 159, para. 92; p. 160, paras. 97-98; pp. 175-176, 192, 194-195;

    (25) [(25) p.577] In this sense, see in the plenary meeting, ibid., p. 158, paras. 82 and 85; p. 160, para. 100; pp. 189, 193-194, 197-198, 202-204, and for the Rapporteur's report, O.R. XV, p. 454, CDDH/ 407/Rev.1, para. 24;

    (26) [(26) p.577] O.R. XV, p. 194, CDDH/III/SR.57, para. 24; p. 198, para. 38; see also the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (Res. 2625 (XXV));

    (27) [(27) p.577] For example, in 1971 in Khartoum, Rolf Steiner, who had German nationality and had helped the Sudanese rebellion, was considered as a mercenary, though he was prosecuted and sentenced on quite different grounds relating to State security. Since then the intervention of mercenaries has emerged in particular in the Comoros, Angola, Benin, the Seychelles etc;

    (28) [(28) p.577] See E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., pp. 5 ff.; O. Tandon, ' Legal and Political Status of Mercenaries in History and in the Contemporary World,' dissertation, Dar es Salaam, 1978, pp. 22 ff.; P. Joenniemi, "Two models of Mercenarism: Historical and Contemporary", ' Instant Research on Peace and Violence ' (Tampere Peace Research Institute), vol. 7, No. 3-4, 1977, pp. 184-196;

    (29) [(29) p.577] Cf. E. David, ' Mercenaires et volontaires internationaux..., op. cit. ', p. 2; for contemporary examples, ibid., pp. 16-21; see also O. Tandon, op. cit., pp. 52-90; T. Boumedra, "International Regulation of the Use of Mercenaries in Armed Conflicts", XX-1-2 RDPMDG, 1981, pp. 35-87, provides a contemporary view of the applicable law on this subject;

    (30) [(30) p.578] Cf. E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., p. 3: "les mobiles qui poussent un individu à s'engager dans une force étrangère sont variables: l'argent, l'esprit de "baroud", le goût de l'aventure, la "fuite" psychologique, les instincts de destruction, l'"idéalisme politique" peuvent être énumérés sans qu'il soit toujours facile de discerner la motivation déterminante". ("The motives which lead an individual to enlist in a foreign force are many and varied: money, fighting spirit, a sense of adventure, psychological 'escapism', a destructive instinct, 'political idealism' can all be listed, though it is by no means always easy to identify the determining factor.) (translated by the ICRC);

    (31) [(31) p.578] The Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in War on Land of 18 October 1907, Article 4. This rule is nowadays also confirmed by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (Res. 2625 (XXV) and by the Definition of aggression (Res. 3314 (XXIX));

    (32) [(32) p.578] Hague Convention V, Article 6; this article, which upholds the principle of individual liberty, is nowadays criticized by several authors. Cf. E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., pp. 164 ff.;

    (33) [(33) p.578] Hague Convention V, Article 17, para. 2;

    (34) [(34) p.579] On the meaning of this expression, see also supra, ad Art. 43, para. 2, p. 516;

    (35) [(35) p.579] It is in particular on this point that the above-mentioned draft Convention of the United Nations (see supra, notes 11 and 18) diverges from the text of the Protocol as regards the definition of mercenary. The UN text stops after the words "private gain", while the Protocol only forbids what could be considered as unjustified enrichment. It was probably the difficulty of furnishing proof of such unjustified enrichment which led the drafters to adopt such a strict attitude (cf. O.R. XV, p. 193, CDDH/III/SR.57, para. 21, and O.R. VI, p. 160, CDDH/SR.41, para. 101);

    (36) [(36) p.580] Report of the Rapporteur, O.R. XV, p. 455, CDDH/407/Rev. 1, para. 26, and p. 511, CDDH/III/369;

    (37) [(37) p.580] Cf. supra, note 30, p. 577; see also O.R. XV, p. 200, CDDH/III/SR.57, para. 47;

    (38) [(38) p.580] Ibid., p. 193, para. 21;

    (39) [(39) p.580] Ibid;

    (40) [(40) p.580] The United States draft Convention not only deals with mercenaries, but also with mercenarism, which it considers as a crime against international peace and security (Art. 10);

    (41) [(41) p.580] For example, the Meos recruited during the conflict in Viet Nam from the country's mountain tribes (See O. Tandon, op. cit., p. 66). Obviously the same applies to nationals who are regular members of the army of their country, whether this is a professional army or not, even if this army is engaged against a national liberation movement;

    (42) [(42) p.580] For examples, see E. David, ' Mercenaires et volontaires internationaux..., ' op. cit., pp. 293- 295;

    (43) [(43) p.581] (43) O.R. XV, p. 511, CDDH/III/369, and pp. 454-455, CDDH/407/Rev.1, para. 25;

    (44) [(44) p.581] O.R. XV, p. 406, CDDH/236/Rev. 1, para. 102;

    (45) [(45) p.581] For examples, see E. David, ' Mercenaires et volontaires internationaux... ', op. cit., pp. 202 ff;

    (46) [(46) p.581] Ibid., p. 293;

    (47) [(47) p.581] In the sense of Article 43, anyone who is not a member of the armed forces is not a combatant and does not have the right to participate directly in hostilities. However, one could conceive of an act of "aggression" (cf., supra, note 10), carried out by mercenaries who are not members of the armed forces of the "aggressor";