OAU Convention for the Elimination of Mercenaries in Africa, O.A.U. Doc. CM/433/Rev.L, Annex 1(1972).
OAU Convention for the Elimination of Mercenaries in Africa, O.A.U. Doc. CM/433/Rev.L, Annex 1(1972).
We Heads of State and Government of Member States of the Organization of African Unity,
Considering the grave threat which the activities of mercenaries represent to the independence, sovereignty, territorial integrity and harmonious development of Member States of OAU,
Considering that total solidarity and co-operation between Member States are indispensable for putting an end, once and for all, to the subversive activities of mercenaries in Africa,
Decided to take all necessary measures to eradicate from the African continent the scourge that the mercenary system represents. We agree on the following:
Under the present Convention a 'mercenary' is classified as anyone who, not a national of the state against which his actions are directed, is employed, enrols or links himself willingly to a person, group or organization whose aim is:
(a) to overthrow by force of arms or by any other means the government of that Member State of the Organization of African Unity;
(b) to undermine the independence, territorial integrity or normal working of the institutions of the said State;
(c) to block by any means the activities of any liberation movement recognized by the Organization of African Unity.
1. The actions of a mercenary, in the meaning of Article One of the present Convention, constitute offences considered as crimes against the peace and security of Africa and punishable as such.
2. Anyone who recruits or takes part in the recruitment of a mercenary, or in training, or in financing his activities or who gives him protection, commits a crime in the meaning of paragraph I of 614 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 22:3 this article.
The Member States of the Organization of African Unity, signatories to the present Convention, undertake to take all necessary measures to eradicate from the African continent the activities of mercenaries. To this end, each State undertakes particularly:
(a) to prevent their nationals or foreigners living in their territory from committing any of the offences defined in Article Two of the present Convention;
(b) to prevent the entry to or the passage through their territory of any mercenary or equipment intended for their use;
(c) to forbid in their territory any activity by organizations or individuals who employ mercenaries against the African States Members of the Organization of African Unity;
(d) to communicate to other Member States of the Organization of African Unity any information, as soon as it comes to their knowledge, relating to the activities of mercenaries in Africa;
(e) to forbid on their territory the recruitment, training or equipping of mercenaries or the financing of their activities;
(f) to take as soon as possible all necessary legislative measures for the implementation of the present Convention.
Every contracting State undertakes to impose severe penalties for offences defined in Article Two of the present Convention.
Every contracting State undertakes to take the measures necessary to punish any individual found in its territory who has committed one of the offences defined in Article Two of the present Convention, if he does not hand him over to the State against which the offence has been committed or would have been committed.
1982] OUTLAWING MERCENARIES 615
ARTICLE SIX
Offences calling for extradition
In accordance with the provisions of Article Seven of the present Convention, the offences defined in Article Two above should be considered as offences calling for extradition.
1. A request for extradition cannot be rejected, unless the State from which it is sought undertakes to prosecute the offender in accordance with the provisions of Article Five of the present Convention.
2. When a national is the subject of the request for extradition, the State from which it is sought must, if it refuses, undertake prosecution of the offence committed. 3. If, in accordance with sections 1 and 2 of this Article, prosecution is undertaken, the State from which extradition is sought will notify the outcome of such prosecution to the state seeking extradition and to any other interested Member State of the Organization of African Unity.
4. A state will be regarded as an interested party for the outcome of a prosecution as defined in section 3 of this Article if the offence has some connection with its territory or militates against its interests.
[Articles 8 to 11 are formal.]
APPENDIX
II
DRAFT CONVENTION ON THE PREVENTION AND SUPPRESSION OF MERCENARISM
(Draft produced by the International Commission of Inquiry on Mercenaries, in Luanda, Angola, June 1976)
PREAMBLE
The High Contracting Parties Seriously concerned at the use of mercenaries in armed conflicts with the aim of opposing by armed force the process of national 616VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 22:3 liberation from racist colonial and neo-colonial domination;
Considering that the crime of mercenarism is part of a process of perpetuating by force of arms racist colonial or neo-colonial domination over a people or State;
Considering the resolutions of the United Nations (Res. 2395 (XXIIX), 2465 (XXXXX), 2548 (XXIV) and 3103 (XXVIII) of the General Assembly and of the Organization of African Unity (ECM/ Res.5(III), 1964; AHG Res.49(IV), 1967; ECM/Res.17(VII), 1970, and OAU Declaration on the Activities of Mercenaries in Africa CM/St. 9 (XVII)), which have denounced the use in these armed conflicts of mercenaries as a criminal act, and mercenaries as criminals, and which have urged States to take forceful measures to prevent the organization, recruitment and movement on their territory of mercenaries, and to bring to justice the authors of this crime and their accomplices;
Considering that the resolutions of the UN and the OAU and the statements of attitude and the practice of a growing number of States are indicative of the development of new rules of international law making mercenarism an international crime;
Convinced of the need to codify in a single text and to develop progressively the rules of international law which have developed in order to prevent and suppress mercenarism, the High Contracting Parties are convinced of the following matters:
ARTICLE ONE
DefinitionThe crime of mercenarism is committed by the individual, group or association, representatives of state and the State itself which, with the aim of opposing by armed violence a process of self-determination, practices any of the following acts:
(a) organizes, finances, supplies,' equips, trains, promotes, supports or employs in any way military forces consisting of or including persons who are not nationals of the country where they are going to act, for personal gain, through the payment of a salary or any other kind of material recompense;
(b) enlists, enrols or tries to enrol in the said forces;
(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 abovementioned forces.
ARTICLE TWO
The fact of assuming command over mercenaries or giving orders may be considered as an aggravating circumstance.
ARTICLE THREE
1.When the representative of a State is responsible by virtue of the foregoing provisions for acts or omissions declared by the foregoing provisions to be criminal he shall be punished for such an act or omission.
2. When a State is responsible by virtue of the foregoing provisions for acts or omissions declared by the foregoing provisions to be criminal, any other State may invoke such responsibility:
(a) in its relations with the State responsible, and
(b) before competent international organizations.
ARTICLE FOUR
Mercenaries are not lawful combatants. If captured they are not entitled to prisoner of war status.
ARTICLE FIVE
Crimes of mercenaries and other crimes for which mercenaries can be responsible
A mercenary bears responsibility both for being a mercenary and for any other crime committed by him as such.
ARTICLE SIX
National legislationEach contracting State shall enact all legislative and other measures necessary to implement fully the provisions of the present Convention.
ARTICLE SEVEN
JurisdictionEach contracting State undertakes to bring to trial and to punish any individual found in its territory who has committed the crime defined in Art. 1 of the present Convention, unless it hands him over to the State against which the crime has been committed or would have been committed.
ARTICLE EIGHT
Extradition1. Any State in whose territory the crime of mercenarism has been committed or of which the persons accused of the crimes defined in Art. 1 are nationals, can make a request for extradition to the State holding the persons accused.
2. The crimes defined in Art. 1 being deemed to be common crimes, they are not covered by national legislation excluding extradition for political offences.
3. When a request for extradition is made by any of the States referred to in para. 1, the State from which extradition is sought must, if it refuses, undertake prosecution of the offence committed.
4. If, in accordance with paras. 1 - 3 of this article, prosecution is undertaken, the State in which it takes place shall notify the outcome of such prosecution to the State which had sought or granted extradition.
ARTICLE NINE
Judicial guaranteesEvery person or group brought to trial for the crime set out in Art. 1 is entitled to all the essential guarantees of a fair and proper trial. These guarantees include:
the right of the defendant to get acquainted in his native language with all the materials of the criminal case initiated against him, the right to give any explanation regarding the charges against him, the right to participate in the preliminary investigation of the evidence and during the trial in his native language, the right to have the services of an advocate, or defend himself if he prefers, the right to give by himself or through an advocate testimony in his defence, to demand that his witnesses be summoned and participate in their investigation as well as in the investigation of witnesses for the prosecution.
APPENDIX III
INTERNATIONAL CONVENTION AGAINST THE ACTIVITIES OF MERCENARIES
U.N. Doc. A/35/366/Add.1, at 10-16 (1980).
The States Parties to this Convention,Reaffirming the purposes and principles of the Charter of the United Nations concerning effective collective measures for the prevention and removal of all threats to international peace and security,
Bearing in mind the need for the strict observance of the principles of equality, sovereign independence, territorial integrity and self-determination of all peoples as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,
Recognizing in particular that the General Assembly and the Security Council in several resolutions have condemned the activities of mercenaries aimed at overthrowing the Governments of Member States or jeopardizing the legitimate interests of national liberation movements,
Considering the urgent need by the international community to co-operate and to exercise utmost vigilance against the danger posed by the activities of mercenaries by all States in the interest of international peace and security,
Convinced that an international convention against the activities of mercenaries faithfully implemented will provide an effective collective measure against the menance of mercenarism,Have agreed as follows:
Article 1
DefinitionA mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) 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 function.
APPENDIX III
INTERNATIONAL CONVENTION AGAINST THE ACTIVITIES OF MERCENARIES
U.N. Doe. A/35/366/Add.1 at 10-16 (1980).
The States Parties to this Convention,
Reaffirming the purposes and principles of the Charter of the United Nations concerning effective collective measures for the prevention and removal of all threats to international peace and security,
Bearing in mind the need for the strict observance of the principles of equality, sovereign independence, territorial integrity and self-determination of all peoples as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,
Recognizing in particular that the General Assembly and the Security Council in several resolutions have condemned the activities of mercenaries aimed at overthrowing the Governments of Member States or jeopardizing the legitimate interests of national liberation movements,
Considering the urgent need by the international community to co-operate and to exercise utmost vigilance against the danger posed by the activities of mercenaries by all States in the interest of international peace and security,
Convinced that an international convention against the activities of mercenaries faithfully implemented will provide an effective collective measure against the menance of mercenarism, Have agreed as follows:
Article 1
DefinitionA mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) 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;
(d) is neither a national of a Party to the conflict nor a resident of the territory controlled by a Party to the conflict;
(e) is not a member of the regular armed forces of a Party to the conflict; and
(f) 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.
Article 2
Definition of mercenarism1. The crime of mercenarism is committed when an individual, group or association, or body corporate registered in that State or representative of a State or the State itself with the aim of opposing by threat or armed violence the territorial integrity of another State or the legitimate aspirations of national liberation movements jeopardizes the process of self determination or manifests by overt acts any of the following:
(a) organizes, finances, supplies, equips, trains, promotes, supports, or employs in any way individuals, bands or military forces consisting of or including persons who are not nationals of a Party to the conflict and who act for personal gains through payment of salary or any other kind of material recompense;
(b) participates as an individual, group or association or body corporate or enlists in any force;
(c) advertises, prints or causes to be advertised any information regarding paragraphs (a) and (b) of this article;
(d) allows or tolerates the activities mentioned in paragraphs (a), (b) and (c) of this article to be carried out in any territory or place under its jurisdiction or control or affords facilities for transit, transport, or other operation of the above mentioned forces;
(e) actually participates in any of the acts mentioned in paragraphs (a), (b), (c) and (d) of this article which result in the destruction of life and property.
2. Any person, group or association, representative of a State or the State who:
(a) attempts to commit any act of mercenarism (hereinafter referred to as 'the offence) mentioned in article 2;
(b) participates as an accomplice of any one who commits or attempts to commit the offence also commits the offence for the purpose of this Convention.
3. The offence if committed shall be deemed an offence against the peace and security of a State.
Article 3
PenaltiesEach State Party shall by appropriate national legislation make the offences set forth in article 2 punishable by appropriate penalties which take into consideration the grave nature of the offence.
Article 4
ImplementationEach State Party shall take all appropriate administrative and legislative measures to implement fully the provisions of this Convention.
Article 5
Status of mercenariesMercenaries are not lawful combatants and if captured shall not be accorded prisoner of war status.
Article 6
Establishment of jurisdiction1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offence in the following cases:
(a) when the offence is committed in its territory;
(b) when the offence is committed by any of its nationals, or body corporate registered in that State;
(c) when the offence is committed by the representative of a State;
(d) when the offence is committed against that State.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to article 13 to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction instituted. The State Party shall immediately make a preliminary inquiry into the facts.
Article 11
Judicial guaranteeAny individual or group or association, or body corporate, repre�sentative of a State or the State itself, on trial for the offence de�fined in article 2 of this Convention shall be entitled to all the judi�cial guarantees ordinarily granted to an alleged offender in the same circumstances.
Article 12
Communication of final proceedingsThe State Party where the alleged offender is prosecuted shall in accordance with its laws communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to the other States concerned and the international intergovernmental organizations concerned.
Article 13
Extraditable offences1. For the purposes of this Convention, any of the offences men�tioned in article 2 shall be deemed to be included as extraditable offences in any existing or future extradition convention or treaty between the State Parties. This convention may also be the legal basis for extradition in respect of offences listed in article 2.
2. Each State Party having jurisdiction mentioned in article 6 of this Convention may request for extradition from the other State Party where the alleged offender is found.
Article 14
Extradition1. For the purpose of extradition between State Parties, an of�fence of mercenarism shall not be regarded as a political offence or as an offence inspired by political motives.
2. Where however the State Party in whose territory the alleged offender is found fails to extradite him, that State Party shall be obliged, without exception whatsoever and whether or not the of�fence was committed in its territory, to submit the case to its com�petent authorities for the purpose of prosecution in accordance with the laws of that State.
Article 15
Action for damages I reparation1. Where a State Party which suffers damage or whose national or juridical person suffers any damage or loss of life as a result of mercenarism is unable to prosecute or cause prosecution of the al�leged offender because of the refusal or otherwise of the other State Party in whose territory the alleged offender is found or its national, it may nonetheless present a claim for damages or repara�tion as the case may be against that other State Party.
2. The State Party which has suffered damages by reason of the commission of the offence mentioned in article 2 of this Conven�tion may also claim damages or reparation against any State Par�ties jointly or severally for any act or omission which constitutes the offence.
3. However a claim for damages or reparation may only be con�sidered when attempts to secure criminal prosecution have failed.
Article 16
Settlement of disputes1. Any dispute between two or more State Parties concerning the interpretation or application of this Convention which is not set�tled by negotiation shall at the request of any one of them be sub�mitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the or�ganization of the arbitration, any one of the parties may refer the dispute to the International Court of Justice by request in con�formity with the Statute of the Court.
2. Each State Party may at the time of signature, or ratification of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of this article. The other State Parties shall not be bound by paragraph 1 of this article with respect to any State Party which has made such a reservation.
3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.