The rising incidence of mercenary activities with heightened implications for human rights, the protection of civilians and international peace and security in different regions of the world is being attributed to the reliance of States and non-State armed actors on mercenary and mercenary-related activities to gain strategic and tactical advantage in increasingly complex armed conflicts. A call has, therefore, gone out to nation states to stop outsourcing activities amounting to direct participation in hostilities or the provision of for-profit services constituting direct participation in such by private individuals and companies. The UN Working Group on the use of mercenaries is actually insisting that “States must act transparently when contracting military support services and build on existing initiatives to strengthen regulation and define the scope of permissible services that can be undertaken by private entities”, .
A previous picture of members of the Working Group with Dr. Kwaja in the middle
Addressing the Third Committee of the General Assembly in New York, the Chairperson-Rapporteur of the Working Group, Dr. Chris Kwaja of Nigeria spoke to how a multitude of mercenary-related actors profit from operating in armed conflicts with disturbing implications for the respect of international human rights law and international humanitarian law. According to him, the Working Group’s report could pinpoint several broad categories that could, to a lesser or greater extent, generate mercenary-related activities, a position which informed the report’s isolation of (i) fighters affiliated with non-State armed actors operating abroad as well as domestically; (ii) foreign fighters; (iii) foreign nationals contracted into State security services; (iv) private military and security companies and their personnel; and (v) cyber mercenaries.
The report, in his own words, took a broader approach by examining a variety of actors and activities that fit under a more comprehensive concept of mercenary-related activities, which responds to the evolving nature of contemporary conflicts. “By examining such actors and their activities, which share key characteristics of mercenarism, it enables us not only to adequately capture and assess the evolving trends and manifestations of mercenaries, but also to outline the significant threats they pose to human rights, the protection of civilians and peace and security in general”, the Chairperson said.
He noted how private actors are making profit from developing, maintaining and operating new technologies used in the conduct of hostilities, such as drones, how they are also engaged in developing new methods of warfare, including cyber capabilities and high-tech weapons systems, technologies which he said have the capacity to cause significant human harm, while further complicating the process of attributing responsibility for abuses and violations by fragmenting and diffusing operational and tactical decision-making. There is, therefore, a vital need for appropriate policy and regulatory responses from States, as well for enhanced efforts to address human rights concerns arising from the development and use of offensive cyber capabilities, he argues.
Dr. Kwaja pointed at how the report of the Working Group is stressing the need for careful contextual and factual assessments of each case such actors operate in so as to ascertain possible links to mercenary-related activities. And how the report is also stressing due consideration to the fact that some individuals engaged in mercenary and mercenary-related activities may live in particularly dire security and socioeconomic conditions that could exacerbate their vulnerability, making them more prone to be subjected to coercion, exploitation or abuse when carrying out such activities.
Also brought under attention is how third-parties, particularly States, are said to be utilising mercenary and mercenary-related personnel as a way of remotely influencing armed conflicts abroad. “The Working Group is alarmed by reports that, in some cases, States have done so in an attempt to obscure their involvement in an armed conflict and avoid related responsibilities under international law, including with respect to alleged human rights abuses and violations of international humanitarian law”, said he, adding how, in so doing, creates a major obstacle to achieving accountability and providing effective remedies to victims of abuses and violations. The Working Group is thus pleased that the Security Council is increasingly including the provision of ‘armed mercenary personnel’ in arms embargoes, thereby broadening the scope of restrictions, accountability and non-compliance beyond military materiel to include States and human actors.
The Working Group’s had also mentioned a key finding and concern with human rights and humanitarian risks created by what he calls diverse, opaque and profitable market for private combat and combat support services that has developed in parallel to the significant changes in the nature of contemporary conflicts. It puts that in how the rise in non-international armed conflicts and the proliferation and variety of non-State armed actors involved not only increase the prospective client base for private combat and related services but also make it more challenging to determine facts, ascribe international legal obligations, and attribute responsibility for violations and abuses. It cites as example some non-State armed actors that openly defy human rights have relied on mercenaries and related actors to strengthen their military capacities and capabilities.
Though recognising that there are considerable gaps in understanding the ways in which mercenaries and mercenary-related actors have adapted to contemporary conflict realities, how they are used, the human rights risks and impacts arising from their activities, the report nevertheless points at the disconnect between the reality on the ground and the applicable international legal framework on mercenaries as where the problem might lie. The latter reflects the specific historical context in which it was developed, as well as the agreement reached at the time by States about a term frequently used as a politically charged and derogatory label, rather than as a legal concept, he says, adding how the political connotations often associated with the term “mercenary” reduce discussions on this topic to debates about whether or not an actor meets the strict international legal definition of a mercenary.
