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Working group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Statement by Mr. Chris Kwaja
Chairperson-Rapporteur
75th session of the General Assembly
Third Committee
Item 73
New York, 2 November 2020

Mr. President,
Distinguished delegates,

I am honoured to address the Third Committee of the General Assembly as the Chairperson-Rapporteur of the Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination. On behalf of the Working Group, today, I am pleased to present to you the key elements of our report on the evolving forms, trends and manifestations of mercenaries and mercenary-related activities.

In recent years, reports on mercenary activities in different regions of the world have gained ground, as mercenarism continues to threaten human rights, the protection of civilians and international peace and security. In situations examined by the Working Group, the involvement of mercenaries and related actors often led to the intensification and prolongation of conflicts and thus contributed to the human suffering of the civilian populations and undermined their right to self-determination. Mercenaries and mercenary-related actors have also been reportedly involved in specific human rights abuses and violations, such as extrajudicial killings and recruitment of children.

At the same time, 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. In part, this is due to the disconnect between the reality on the ground and the applicable international legal framework on mercenaries. 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. Moreover, 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.

Conversely, in the report before you, we take 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.

Mr. President,

Today, 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. The Working Group’s report identifies several broad categories that can, to a lesser or greater extent, generate mercenary-related activities. These categories are: 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.

In this context, the report stresses the need for careful contextual and factual assessments of each case such actors operate in, to ascertain possible links to mercenary-related activities. Furthermore, due consideration should be given 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, and make them more prone to be subjected to coercion, exploitation or abuse when carrying out such activities.

Mr. President,
Distinguished delegates,

The Working Group is greatly concerned by the human rights and humanitarian risks created by the 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. Let me highlight three key findings elaborated in our report.

First, 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. For 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.

Second, third-parties, particularly States, are utilising mercenary and mercenary-related personnel as a way to remotely influence 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. In so doing,  a major obstacle to achieving accountability and providing effective remedies to victims of abuses and violations is created. In this context, we are pleased that the Security Council has increasingly included the provision of ‘armed mercenary personnel’ in arms embargoes, thus broadening the scope of restrictions, accountability and non-compliance beyond military materiel to include States and human actors.

Third, both States and non-State armed actors have relied on mercenary and mercenary-related activities to gain strategic and tactical advantage in increasingly complex armed conflicts. For example, private actors have made profit from developing, maintaining and operating new technologies used in the conduct of hostilities, such as drones. They are also engaged in developing new methods of warfare, including cyber capabilities and high-tech weapons systems. These technologies 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.

Mr. President,

In light of the serious concerns raised by the evolving and emerging forms of mercenary and mercenary-related activities, the Working Group calls upon States not to outsource activities amounting to direct participation in hostilities and to prohibit the provision of for-profit services constituting direct participation in hostilities by private individuals and companies. 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.
We sincerely hope that our report will stimulate a much needed discussion on the ways to address and effectively counter the new trends and manifestations of mercenary and mercenary-related activities. I thank you for your attention and I look forward to an interactive dialogue.