Distr. GENERAL E/CN.4/1998/31 27 January 1998 ENGLISH Original: ENGLISH/FRENCH/SPANISH

89. A non-exhaustive list of topics which require further and more detailed investigation should include possible changes in the nature of mercenaries, as defined since the establishment and organization of national armies, because it is undeniable that large numbers of them have been joining private companies which provide security and military advice and training internationally. It should also be borne in mind that responsibility for a country's internal order and security are peremptory obligations which a State fulfils through its police and armed forces. Turning these responsibilities over to private companies registered in third countries would be to restrict the sovereignty of the State or to cede part of that sovereignty to a company, in return for which it would exercise the rights of the State police or those involved in defending territorial integrity or the population.

90. Sovereignty would thus continue to be exercised by the State, but it might be dangerous and destabilizing for the State to assume responsibility for any abuses that the security companies might commit against the civilian population. These companies might put their relations with multinational oil, mineral, chemical and other companies first, and through the use of their military resources, impose the political, economic and financial hegemony of their business partners. As clients of these powerful companies, they would have paved the way for a form of multinational neo-colonialism.

91. In view of the concerns expressed in the preceding paragraphs, it would also be appropriate for the competent United Nations bodies to discuss the international lawfulness of allowing the free market to include completely unrestricted competition from companies selling security services and the risk of interference in internal affairs by agents who, claiming to be experts, might actually be mercenaries, intelligence agents from third States, saboteurs or other elements whose assignment is to dominate, dissociate and weaken the receiving State. Of course, these are hypothetical situations arising out of the changing reality of traditional mercenary activities and their partial replacement by private security companies specializing in military matters. The problem should remain under study; it has to be solved on the basis of more in-depth knowledge of the facts, specific references and a systematic analysis concluding with suggestions and proposals for the adoption of political, legal and operational standards relating to mercenary activities and to companies which sell security internationally.

92. The complexity of the situation described in the previous paragraphs implies that the Commission on Human Rights must endeavour to find imaginative and realistic responses so as to support States in danger of succumbing to chaos and of being lured by the siren songs that might be sung by these seductive security companies. It is obvious that the sovereignty of States and the security of the population would be better safeguarded by United Nations rapid reaction or peacekeeping forces. In any event, the international systems cannot overlook the perils looming over weak and crisis-ridden States. One positive step would be an increased will to take preventive actions that can neutralize resort to the use of force. What is needed specifically is to show that the systems for the protection of human rights and peace and security are capable of implementing efficient and convincing mechanisms to promote life, a relaxation of tensions and positive agreements for peaceful cooperation, and are more effective at doing so than these companies which derive material benefits from the weakness of Governments that are unable to control order and security in their countries. [back to the contents]

V. PRESENCE OF MERCENARIES IN PAPUA NEW GUINEA

93. Since 1988 the Special Rapporteur has been closely monitoring the changing situation in the conflict on the Island of Bougainville in Papua New Guinea, and especially the implementation of the measures adopted in order to achieve a peaceful solution to a conflict which has already caused more than 7,000 civilian deaths (many due to the lack of timely medical care), as well as to improve the human rights situation in general. In that context, he welcomed the signing of the Honiara commitments on 3 September 1994 by the then Prime Minister of Papua New Guinea, Sir Julius Chan, and the Commander of the Bougainville Revolutionary Army, Mr. Sam Kauona. Pursuant to the Honiara commitments, a ceasefire agreement between the Government of Papua New Guinea and the Bougainville Revolutionary Army was signed on 8 September 1994, and in October 1994 a peace conference, attended by representatives of the various political factions, was held. Unfortunately the peace process did not unfold as planned and a number of events, including the assassination of the rebel leader Théodore Miriong in October 1996, resulted in renewed military action.

94. The Special Rapporteur has learned that, given the situation, the Prime Minister decided to sign a contract with Sandline International, a company registered in the Bahamas with offices in London, under which it is to provide various military assistance services to the Papua New Guinea Defence Forces. According to the terms of the contract, concluded on 31 January 1997, Sandline International undertook, inter alia, to:

(a) Provide advice and military assistance to the Papua New Guinea Defence Forces with a view to supporting them in their task of protecting the territorial sovereignty of the country and retaking control of important national resources, especially the mineral deposits in Panguna;

(b) Provide tactical training for the Special Forces Unit (SFU);

(c) Furnish intelligence services in support of military operations;

(d) Conduct offensive military operations in Bougainville in conjunction with the Papua New Guinea Defence Forces for the purpose of naturalizing the forces of the Bougainville Revolutionary Army and of regaining control of the Panguna mine; and

(e) Provide adequate follow-up to those actions by means of specific operations which would be defined in other agreements.

95. In order to furnish the military assistance described above and to participate in military operations, Sandline International undertook specifically, inter alia to:

(a) Send a 16-man command, administration and training team in the first week of implementation of the contract to establish the necessary liaison with the Papua New Guinea Defence Forces; develop a logistical and communications infrastructure; prepare for the safe arrival of the military and aeronautical equipment contracted for; initiate the information-gathering and intelligence operations and begin training the Special Forces Unit;

(b) Set up bases at Jackson Airport and the La Selva training centre in Wewac;

(c) Within 10 days of the arrival of the command, administration and training team, send and deploy the following throughout the territory of Papua New Guinea: Special Forces officers and troops, aircraft and helicopter crews, engineers, intelligence agents, special teams of operatives, mission troops, medical and paramedical personnel and so forth;

(d) Send arms, ammunition and equipment, including aircraft, helicopters, electronic warfare equipment and communications systems, as well as any personnel necessary for their maintenance and for training in their use;

(e) Ensure that personnel sent to the country have appropriate identity papers, and assume responsibility for any expense caused by loss of its personnel, unless that loss was the result of negligence by the State.

96. In return, the Government of Papua New Guinea undertook to pay Sandline International US$ 36 million for the three-month initial period of the contract, to grant to Sandline International's expatriate personnel all tax exemptions, facilities and privileges in connection with their entry into, departure from and stay in the country and with the import of their goods and equipment and, in general, to grant all the authorizations, waivers, permits and licences necessary for them to fulfil their contractual obligations. The Government also undertook to instruct its civil servants and the members of the Defence Forces to recognize the military ranks of the company's personnel as established by the command structure and, accordingly, to obey orders from higher-ranking company personnel.

97. The Government also recognized that Sandline International's personnel were authorized to commit themselves to or initiate or fight in military operations, repel attacks, arrest and detain persons suspected of planning an act of aggression or of conspiring to do so and, in general, defend the population from threats of any kind.

98. At the end of March 1997, 40 of Sandline International's personnel, mostly South Africans, were forced to leave Papua New Guinea as a result of widespread protests within the Defence Forces at the signing of the contract described above and of mutinies in Port Moresy, the capital of the country. The leader of the group, Tim Spicer, a British citizen was confined to quarters in the capital and his passport was confiscated. The Commander-in-Chief of the Defence Forces, Brigadier General Jerry Singirok, was dismissed by the Prime Minister for criticizing the conclusion of the contract and the dispatch of the company's first instructors to the front in Bougersee. On 18 March 1997, the army protested against the dismissal of its Commander-in-Chief, mutinied at the Murray barracks and marched on Parliament. General Singirok later accepted his dismissal but requested that a commission of inquiry should be set up to investigate the Sandline International contract. On 26 March 1997 the Government agreed to appoint a commission of inquiry, and on 11 August 1997 Prime Minister Bill Skate announced that the investigation would be expanded. The Special Rapporteur has contacted the Government of Papua New Guinea requesting information concerning those events and hopes to be informed of the conclusions of the commission of inquiry.

99. Although the commission's conclusions are not yet known, the available information concerning the crisis in Papua New Guinea suggests that it was triggered by the implementation of the contract between the Government of Papua New Guinea and the private security company Sandline International. For the armed forces and the population, the presence of foreign soldiers recruited by a foreign company, which was responsible not only for training but also for commanding military operations in an internal armed conflict, thereby subjecting the country's military leaders to its orders, and which received for the initial period of the contract (three months) US$ 36 million as well as a promise of participation in the company Bougainville Cooper Limited was considered to be an act that violated sovereignty and the right to self-determination. The sheer perception of being faced with a mercenary presence under contract to the Government via a private company was without any doubt a clearly expressed fact in the indignation of both the armed forces and the population of Papua New Guinea. In addition, the use of mercenaries was noted by the international community. [back to the contents]

VI. CURRENT STATUS OF THE INTERNATIONAL CONVENTION AGAINST THE RECRUITMENT, USE, FINANCING AND TRAINING OF MERCENARIES

100. By resolution 44/34 of 4 December 1989, the General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Pursuant to article 19, the International Convention is to enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General. At the time this report was written, only 14 States had completed the process of expressing their willingness to be bound by the International Convention: Azerbaijan, Barbados, Belarus, Cameroon, Cyprus, Georgia, Italy, Maldives, Saudi Arabia, Seychelles, Suriname, Togo, Turkmenistan and Ukraine, while the following 10 States had signed the International Convention: Angola, Congo, Democratic Republic of the Congo, Germany, Morocco, Nigeria, Poland, Romania, Uruguay and Yugoslavia.

101. The International Convention confirms the legal nature of the resolutions and declarations of United Nations bodies condemning mercenary activities and it expands international regulation of the question, such regulation being at present essentially limited to article 47 of the 1977 Protocol I Additional to the Geneva Conventions of 1949 and the 1977 OAU Convention for the Elimination of Mercenarism in Africa. The entry into force of the International Convention will contribute to the accurate identification of situations involving mercenaries, the effective prosecution and punishment of offenders and the clear determination of jurisdiction in each case, and will help to facilitate extradition procedures and preventive cooperation among States. It may also be recalled that General Assembly resolution 52/112 requested the Secretary-General to invite Governments to make proposals towards a clearer definition of mercenaries. [back to the contents]

VII. CONCLUSIONS

102. Mercenary activities are a form of violence, condemned by United Nations bodies, which have been used to hamper the exercise of the right to self-determination of peoples and to violate human rights. Mercenaries tend to be present mainly in international or internal armed conflicts, where they offer their services to one or more parties to the conflict in exchange for payment, causing serious damage to the people and territories that are victims of their actions.

103. Mercenary activities not only affect the self-determination of peoples but may also be considered as leading to serious crimes, such as attempts on the lives of selected persons, terrorist attacks against installations and drug and arms trafficking. All these acts usually involve serious violations of human rights.

104. Since mercenary activities and the conduct of the mercenary per se can seriously impair the enjoyment of human rights, the self-determination of peoples, the stability of constitutionally established Governments and the maintenance of international peace and security, mercenary activity and conduct must be clearly and unequivocally banned.

105. The fact that existing international provisions relating to mercenaries raise problems, contain gaps or are ambiguous reduces their legal effectiveness. For this reason they should be thoroughly revised, supplemented, made more specific, references added to new mercenary methods and brought up to date.

106. Mercenarism is not classified as a separate crime in the legislation of most countries. This omission could facilitate the use of the State's territory to recruit and train mercenaries and to finance their activities. Moreover, the fact that the extradition of mercenaries is not provided for could facilitate their perpetration of criminal acts and provide them with impunity.

107. Some events that have taken place in countries in Africa, Europe and Oceania in recent years indicate not only that mercenary activities still exist but that their nature is changing. The establishment of companies to sell military advisory, training and security services to countries in return for money and mining and energy concessions, in particular, may, in addition to the problems such contracts pose for the sovereignty of the States that conclude them, lead to the recruitment of mercenaries who will become involved in internal affairs, thus representing a threat to the people exposed to their activities.

108. By the very nature of the operations contracted for and the contractual terms agreed to, military advisory and assistance companies can come to take control of the country's security and thereby exert considerable political influence over production and economic, financial and commercial activities. Their influence could be considerable in areas of decisive importance for the economic activity of the country in which they operate, and could in turn promote relations of dependence.

109. If the type of company described in the preceding paragraph becomes widespread, the concept of security that the international community has had until now and the responsibility of each State to be accountable for and to guarantee, through its police forces, that each individual is able to exercise his rights and freedoms as a citizen will have been superseded by a new concept.

110. The consolidation of these companies depends directly on the extent to which the international system, the great Powers and States themselves agree to entrust the solution of regional, bilateral and internal armed conflicts, as well as the Governments of countries with problems, to private military security and assistance companies.

111. According to this new concept, it would appear that any State is at liberty to buy military advisory and assistance and security services on the international market from organizations composed of persons of various nationalities, united by their military function and their ability to control, punish and impose the order desired by the Government which hires them, regardless of the cost in lives and loss of sovereignty, in exchange for money and natural resources.

112. The increase in companies engaged in the international sale of security and military advice and assistance could significantly alter the currently accepted concept of mercenary activity. Mercenary activity would no longer be considered as necessarily unlawful, illegitimate or illegal, while concepts such as that of State sovereignty and the obligations of a State towards its people and towards the observance and guarantee of the enjoyment of human rights would be tremendously and dangerously relativized.

113. Despite the fact that more than eight years have passed since its adoption by the General Assembly, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries has been ratified by only 14 States. The delay in its entry into force of itself encourages the continuation of this criminal activity. [back to the contents]

VIII. RECOMMENDATIONS

114. Considering that mercenary activities have become diversified and are undergoing a transformation, acquiring characteristics that make them far more of a threat to the enjoyment of human rights, the Commission on Human Rights should reaffirm its condemnation of these activities and, additionally, suggest to all States that they should incorporate practical measures in their national legislation to prohibit the use of their territory for the recruitment, training, assembly, transit and financing and use of mercenaries.

115. The united front which the international community should present in acting against mercenary activities is weakened by the existence of gaps and inadequacies in national legislation as well as international instruments which are used to conceal mercenary activities and even to condone the recruitment and employment of mercenaries. It is therefore recommended that mercenary activity should be treated in every respect as an unlawful and prosecutable act and a continuing offence. Given the legal gaps and inadequacies which permit the existence of mercenaries whose activities can pass as normal, it is recommended that the Commission on Human Rights should propose that the States Members of the United Nations should consider adopting legislation to prohibit mercenary activity and the use of national territory for such unlawful acts.

116. In view of the harm which the delay in the entry into force of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries is causing at the regulatory level, it is recommended that the Commission on Human Rights should appeal to States for understanding so that they will decide to ratify or accede to the Convention and bring it rapidly into force.

117. In what appears to be a new international trend, legally registered companies are providing security and military advisory and training services to the armed forces and police of legitimate Governments. There have been complaints that some of these companies go beyond advisory and instruction work, becoming involved in military combat and taking over political, economic and financial matters in the country served. It is therefore recommended that the evolution of these companies, the relevant legislation of States and the conditions under which States agreed to conclude contracts with such companies should be monitored closely. It needs to be assessed whether the security and internal order of a State which has lost part or all of its capacity to keep order should henceforth be left to the action of specialized companies which will take charge of its security.

118. If, following the conclusion of contracts with private companies providing security services, the situation clearly deteriorates and popular rejection becomes apparent, the investigation should be carried further so that the Commission on Human Rights can have sufficient information to determine the impact of the relationship between private security companies and the countries using their services, particularly from the standpoint of the exercise of authority by the State, self-determination, political stability, the protection of natural resources and conditions for the maintenance of peace and respect for human rights.

119. The Commission on Human Rights should call for a study on ways of reinforcing international prevention, action and intervention machinery in order to strengthen the exercise of human rights and promote the rule of law in countries threatened or weakened by armed conflicts, thereby ensuring that the purpose of hiring private companies of this nature, if indispensable, is solely to obtain technical and professional advice on military matters or police protection, within the legal framework expressly laid down.

120. On the basis of the facts and analysis presented in this report, it is recommended that the Commission on Human Rights should consider keeping this subject under review as a matter of priority with a view to formulating proposals for a better legal definition of private companies that offer security services, precluding the presence of mercenaries, and safeguarding the sovereignty of States and their non-transferable responsibility of matters of law enforcement and internal security.

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