International Humanitarian Law

Extract

[...] International Humanitarian Law - Critically analyse the prohibition against the use of mercenaries in Article 47 of API. - Would the Brigade of Gurkhas or the French Foreign Legion be considered as mercenaries under this definition ? [...]

[...] - of Art 47 API does not specify how long the person must be in the armed force of the Party to a conflict Because there is no specification on the question of time, it is possible for Parties to disguise their use of mercenaries by enlisting them in their armed force for the duration of the conflict - The UN Convention did not supplement these limits, it did not change these provisions Conclusion The UN Convention on Mercenaries made major improvment in this area, However, some criticisms advanced in connection with Article 47 continue to be applicable under this Convention Moreover, a number of new limits appeared to that convention Some step had been taken to enlarge de definition of mercenaries and to prosecute them, but some groups can still avoid the qualification – such as the Gurkhas and the French Foreign Legion From the very first international document relating to mercenaries – Security Council Resolution in 1967 – the instruments prohibiting mercenarism have developed considerably. [...]

[...] The International Convention against the Recrtuitment, Use, Financing and Training of Mercenaries was draft in 1989. This is the only international document dealing directly with the question of mercenaries Basically, this convention was draft because of the limited application of article 47 API, and its shortcomings of the definition. [...]

[...]  API Criteria  Gurkhas  French Foreign Legion - Acting being - They are considered as a member of an Members of the British - They are considered as official armed army because of the Members of the force authoritative control French army because exerced by the UK over of the authoritative them control exerced by France over them. → They cannot do whatever they want, they are subjected to the decision of the British/French Army NOT MET - Headquarter Brigade of - Legionnaires wear Gurkhas is based at the French flag on Trenchard Lines, Upavon, their uniform Wiltshire and is responsible for recruiting and employing Gurkhas in the British Army To what extent the UN Convention on Mercenaries develops the law in this area ? [...]

[...] - Evaluate the extent to which the UN Convention on Mercenaries develops the law in this area . Article 47 Protocol I Additional to the Geneva Conventions Article 47 establishes a definition of mercenaries, stating six cumulative criteria : → « A mercenary is any person who : is specially recruited locally or abroad in order to fight in an armed conflict » A mercenary must then be recruited to fight in a particular armed conflict It thus exludes people who enter service on a permanent or longlasting basis in a foreign army → « mercenary] does, in fact, take a direct part in the hostilities » Only a person fighting in the armed conflict can be considered as a mercenary It thus excludes advisers and military technicians → « mercenary] 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 » A mercenary will offer his services to the highest bidder, he is often defined as a « soldier-for-hire » It contrasts with a volunteers motivated by a noble ideal The remuneration must be higher than that of members of the armed force This criteria is often considered as « the crux of the matter » (ICRC) → « mercenary] is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict » Nationals or residents of a Party to the conflict who voluntarily engaged in the combat are NOT mercenaries (even though they are motivated by private gain, even though they are recruited abroad for a particular conflict, etc) → « mercenary] is not a member of the armed forces of a Party to the conflict » → « mercenary] 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 » Enlistment in the armed forces in itself is sufficient to prevent the definition to be met The mercenary must enlists on his own account and not on behalf of a third state These paragraphs can be summarize in the very idea that a mercenary must not act being part of an official armed force To determine it, one has to consider the degree of authoritative control placed by the hiring state over fighters → It indicates to what extend they can be understood to be part of the armed forces/ or mercenaries Article 47 does not prohibit mercenaries, nor the use or recruitment of them - Article 47(1) merely states that « A mercenary shall not have the right to be a combatant or a prisoner of war » - The denial of the status in case of capture deprives the mercenary of the treatment of prisoner of war (laid down in the 3rd Geneva Convention) and makes him liable to criminal prosecution for acts of violence which would be lawful if performed by a combatant The Gurkhas and the French Foreign Legion Brigade of Gurkhas : The Brigade of Gurkhas are Nepalese fighting units of the British Army Prior to 1997 the Brigade's focus was in the Far East but following the handover of Hong Kong it moved to the UK which is now its base They have fought in the Falklands War, the Gulf War, with NATO, in Iraq and in Afghanistan, etc. [...]