United Nations Mercenary Convention
The United Nations Mercenary Convention, officially the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, is a 2001 United Nations treaty that prohibits the recruitment, training, use, and financing of mercenaries. At the 72nd plenary meeting on 4 December 1989, the United Nations General Assembly concluded the convention as its resolution 44/34. The convention entered into force on 20 October 2001 and has been ratified by 35 states.
Article 1 (Definition of mercenary)
Article 1 of the Convention has the following definition of a mercenary:
1. A mercenary is any person who:
- (a) Is specially recruited locally or abroad in order to fight in an armed conflict;
- (b) 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;
- (c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
- (d) Is not a member of the armed forces of a party to the conflict; and
- (e) 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:
- (a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:
- (i) Overthrowing a Government or otherwise undermining the constitutional order of a State; or
- (ii) Undermining the territorial integrity of a State;
- (b) 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;
- (c) Is neither a national nor a resident of the State against which such an act is directed;
- (d) Has not been sent by a State on official duty; and
- (e) Is not a member of the armed forces of the State on whose territory the act is undertaken.— UN Mercenary Convention
One time Judge Advocate Todds S. Milliard has argued that the convention and Article 47 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) are designed to cover the activities of mercenaries in post colonial Africa, and do not address adequately the use of private military companies by sovereign states.
"Any person who recruits, uses, finances or trains mercenaries, as defined in article 1 of the present Convention, commits an offence for the purposes of the Convention."
"1. A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention.
2. Nothing in this article limits the scope of application of article 4 of the present Convention."
The article does not state that the convention condemns the Mercenary but that states should consider it as a offence and condemn it under the convention. They are not compulsorily to be judged by UN but it is not précised how states should prosecute them.
"An offence is committed by any person who:
(a) Attempts to commit one of the offences set forth in the present Convention;
(b) Is the accomplice of a person who commits or attempts to commit any of the offences set forth in the present Convention."
"1. States Parties shall not recruit, use, finance or train mercenaries and shall prohibit such activities in accordance with the provisions of the present Convention.
2. States Parties shall not recruit, use, finance or train mercenaries for the purpose of opposing the legitimate exercise of the inalienable right of peoples to self-determination, as recognized by international law, and shall take, in conformity with international law, the appropriate measures to prevent the recruitment, use, financing or training of mercenaries for that purpose.
3. They shall make the offences set forth in the present Convention punishable by appropriate penalties which take into account the grave nature of those offences."
This article pertains to UN laws and other agreements for which mercenaries should not be used. Article 5 constitutes a list of offences that can be cumulated along with the article 2 and 3.
"States Parties shall co-operate in the prevention of the offences set forth in the present Convention, particularly by :
(a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories, including the prohibition of illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of such offences;
(b) Co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offences."
"States Parties shall co-operate in taking the necessary measures for the implementation of the present Convention."
The manner to do so is not defined however. The convention itself does not condemn Mercenaries but asks for signatories to cooperate in its application.
Signatories and parties
As of December 2016, the convention had been ratified by 35 states.
|Country||Signing date||Ratification date||Notes|
|Italy||February 5, 1990||August 21, 1995|
|Seychelles||March 12, 1990|
|Zaire||March 20, 1990||Signed as Zaire; successor state is the Democratic Republic of the Congo.|
|Nigeria||April 4, 1990|
|Maldives||July 17, 1990||September 11, 1991|
|P.R. Congo||July 20, 1990||Signed as the People's Republic of the Congo; successor state is the Republic of the Congo.|
|Ukraine||September 21, 1990||September 13, 1993||Signed as the Ukrainian Soviet Socialist Republic.|
|Morocco||October 5, 1990|
|Suriname||February 27, 1990||August 10, 1990|
|Uruguay||November 20, 1990||July 14, 1999|
|Germany||December 12, 1990|
|Barbados||December 13, 1990||July 10, 1992|
|Belarus||December 13, 1990||May 28, 1997||Signed as the Byelorussian Soviet Socialist Republic.|
|Romania||December 17, 1990|
|Cameroon||December 21, 1990||January 1, 1996|
|Poland||December 28, 1990|
|Togo||February 25, 1991|
|Angola||December 28, 1990|
|Cyprus||July 8, 1993|
|Georgia||June 8, 1995|
|Turkmenistan||September 18, 1996|
|Azerbaijan||April 12, 1997|
|Saudi Arabia||April 14, 1997||With reservations.|
|Uzbekistan||January 19, 1998|
|Mauritania||February 9, 1998|
|Qatar||March 26, 1999|
|Senegal||July 9, 1999|
|Croatia||March 27, 2000|
|Libya||September 22, 2000|
|Serbia||March 12, 2001||January 14, 2016||Signed as the Federal Republic of Yugoslavia.|
|Costa Rica||September 20, 2001|
|Mali||April 12, 2002|
|Belgium||May 5, 2002||With reservations.|
|Guinea||June 18, 2003|
|New Zealand||September 22, 2004|
|Liberia||September 16, 2005|
|Moldova||February 28, 2006||With reservations.|
|Montenegro||October 23, 2006|
|Peru||March 23, 2007|
|Cuba||September 2, 2007|
|Syria||January 19, 2008||With reservations.|
|Venezuela||November 12, 2013|
|Ecuador||December 12, 2016|
Several of the states that ratified the agreement are however signatories of the Montreux document which on the contrary of the afore-written convention, does not make illegal the use of mercenaries but gives a document about the use of mercenaries including "good practises", the agreement having no sanctions or legal constraints tied to it.
- Montreux document A non-constraining agreement between countries about Mercenary use with a side legal volley about non-military private security.
- Command responsibility A concept used often in defence in prosecution such as it was used at Auschwitz Trials. It is also a concept pertaining to corporate or administrative law among some.
- International Convention against the Recruitment, Use, Financing and Training of Mercenaries Archived February 9, 2008, at the Wayback Machine A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention) Entry into force: 20 October 2001→ Archived 9 February 2008 at the Wayback Machine
- Milliard, Todd S.; Overcoming post-colonial myopia: A call to recognize and regulate private military companies(PDF), in Military Law Review Vol 173, June 2003. At the time of publication Major Milliard was a Judge Advocate in the Judge Advocate General's Corps, U.S. Army. Page 5. Paragraph 1
- "OHCHR | International Convention against the Recruitment, Use, Financing and Training of Mercenaries". www.ohchr.org. Retrieved 2021-02-17.
- Text of the convention, list of signatories
- Procedural history and related documents on the International Convention against the Recruitment, Use, Financing and Training of Mercenaries in the Historic Archives of the United Nations Audiovisual Library of International Law