B. Correspondence

20. Further to the request of the General Assembly to the Secretary-General to circulate the enhanced definition of mercenaries contained in the final report of the Special Rapporteur, OHCHR, on behalf of the Secretary-General, sent a note verbale on 25 March 2004 to Member States requesting a response by 31 May. Responses were forthcoming from the Governments of Croatia, Mauritius and Cuba, the details of which are given in the note by the Secretary-General to the General Assembly (A/59/191).

21. On 3 August 2004 OHCHR sent a comprehensive note verbale to Member States in implementation of the resolutions adopted by the Commission on Human Rights at its sixtieth session, including resolution 2004/5 in which the Special Rapporteur was requested to circulate to and consult with States on the new proposal for a legal definition of a mercenary drafted by her predecessor (E/CN.4/2004/15, para. 47). At the time of writing this report, responses to that request had been received from the Governments of Mauritius, Namibia and Cuba.

22. In a letter received on 8 October 2004, the Permanent Mission of Mauritius to the United Nations Office at Geneva explained that Mauritius does not have any legislation incorporating the International Convention or General Assembly resolution 58/162. However, section 3 (2) of the Prevention of Terrorism Act describes terrorism as including acts which seriously intimidate a population, unduly compel a Government to perform or abstain from performing any act, and seriously destabilize and destroy the fundamental political and constitutional structure of a State. Also, certain sections of the Criminal Code deal with offences against the State, inter alia, with acts similar in nature to those that are committed by mercenaries although the term “mercenary” is not used.

23. In a letter dated 5 October 2004, the Government of Namibia noted that article 4 of the Constitution of Namibia provides that the Parliament may pass a law providing for the loss of Namibian citizenship by persons who, after the date of independence, have served or volunteered to serve in the armed or security forces of any other country without the written permission of the Namibian Government. However, no person who is a citizen of Namibia by birth or descent may be deprived of Namibian citizenship by such legislation. There are legislative measures in place to prohibit mercenary activities. Section 58 of the Defence Act, 2002 (Act 1 of 2002) prohibits certain acts in connection with service as mercenary. The law provides that a person who:

(a) Bind himself or herself to serve or render service as a mercenary shall be liable to a fine not exceeding N$ 8,000 or to imprisonment for a period not exceeding two years, or both; and

(b) Makes any utterances or performs any act or does anything with intent to advise, encourage, assist, incite, instigate, suggest to or otherwise persuade any person to bind himself or herself to serve or render service as mercenary, is liable to a fine not exceeding N$ 20,000, or to imprisonment for a period not exceeding five years, or to both. The Government of Namibia shares the concern of the international community about the problems relating to mercenaries, notably that mercenary activities threaten peace and the socio-political and economic stability of Governments.

24. In a note verbale dated 8 October 2004, the Government of Cuba stated that it considers that the definition of mercenaries given in article 1 of the International Convention does not cover its various manifestations and, furthermore, establishes excessive requirements for the purposes of definition by calling for them to be met concomitantly. It is inappropriate to use, as a criterion for the definition of a mercenary, the amount of the material compensation received. Furthermore, excluding from the definition of a mercenary those nationals who act against their own country, in the service of a foreign power or interest, subject to the payment of remuneration, particularly weakens its scope. Cuba has made concrete proposals in the past concerning a possible reformulation of the concept of “mercenary” which remain valid, and it welcomes the proposal made by the former Special Rapporteur which constitutes a good basis for initiating the process of strengthening the International Convention. As the former Special Rapporteur has noted, in the years following the end of colonialism, in most countries a metamorphosis of mercenarism has occurred, with new and sophisticated modalities of this phenomenon, such as the activities of so-called private security firms also known as private military companies coming to exist together with the traditional forms. These have every appearance of legality, which obscures the illegality of many of their actions and activities. When members of a national army commit war crimes, it is the responsibility of that army or State to try them, but when the crimes are committed by personnel of private security firms - who very often are not nationals or residents of the country where they are legally registered or of the country where they carry out their activities - those crimes remain in a legal limbo or, at least, a profound ambiguity arises with regard to legal jurisdiction. The Government in its reply also cites alleged cases of mercenarism in Iraq, Zimbabwe, Equatorial Guinea and, in particular, Panama.

25. On 8, 11 and 12 October 2004, the Special Rapporteur sent letters to the permanent missions in Geneva of the States parties to the International Convention requesting their reactions to the proposed new legal definition of mercenary.

26. In a letter dated 25 October 2004, the Permanent Mission of Qatar offered its opinion as follows: “This change to the definition of a mercenary is a response by the international community to the new crimes that are emerging in the world and which it was difficult to include in the old definition. These new crimes are condemned by the international community and are punished by law; hence, the attempt to provide a flexible definition of a mercenary which includes any crime that the international community condemns or may condemn in the future. The amendment takes account of the changes which the international community is seeing in the area of crime.”

27. In a letter dated 28 October 2004, the Permanent Mission of Azerbaijan noted that attempts to use mercenaries are still in abundance throughout the world, leading to increased violations of human rights and hindering the exercise of the right of peoples to self‑determination. This undoubtedly underlines the importance of the international community’s efforts to eliminate this phenomenon. As a State party to the International Convention, Azerbaijan considers it possible to revise the legal definition of a mercenary as proposed by Mr. Bernales Ballesteros. At the same time, while reserving the right to make additional comments, Azerbaijan proposed the following amendments to the new definition:

(a) In article 1, paragraph (2) (a) (iii), to replace the phrase “terrorist acts” by “terrorist, extremist and other acts which could undermine the normal activity of State agencies”;

(b) In article 3, paragraph 1, to insert the word “extremism” after “terrorism”.

28. In a letter dated 16 August 2004, the Government of Equatorial Guinea invited the Special Rapporteur to attend the judicial proceedings involving the alleged mercenaries charged with involvement in the reported attempted coup d’état in March 2004 in that country. At that time, it was foreseen that these proceedings would begin on 23 August. The Special Rapporteur replied on 24 August that her schedule of commitments would not allow her to attend at that time, but that she would be very interested in following developments and receiving communications as appropriate from the Government. On 21 September 2004 the Special Rapporteur further informed the Government that it would be possible for her to visit the country from 17 to 25 October and requested an invitation from the Government for those dates.

29. The Special Rapporteur was also in communication with the Government of the United States of America with a view to following through on a preliminary invitation to the former Special Rapporteur to undertake a fact-finding mission in that country. The Special Rapporteur initially proposed the dates 4-12 November 2004, immediately following her mission to United Nations Headquarters. In its letter of 13 September 2004 the Government welcomed the proposed visit but that it was not possible to provide precise dates or a schedule of appointments. On 24 September the Special Rapporteur thanked the Government for its positive response and proposed new dates of 15 to 22 February 2005. A provisional itinerary was also provided to serve as a basis for discussion of mission arrangements.

30. In a letter dated 6 September 2004 the Government of Cuba informed the Special Rapporteur of the decision of the Government of Panama to release four Cubans alleged to have been involved in terrorist acts in that country in 2000, and expressed its strong dissatisfaction with this decision. Attached was an official statement by the Government of Cuba on the situation. The Government also requested that the Special Rapporteur make a statement on the issue. The Special Rapporteur responded, in a letter of 12 October, that it was not clear to her from the material provided how the persons involved could be classified as mercenaries, and that it must first be established that this issue was within her mandate before she could consider any action. She therefore asked the Government to furnish her with further information which would clarify the nature of the acts committed and their links to mercenarism.

31. In keeping with her desire to ensure regular dialogue with Member States, the Special Rapporteur, in letters dated 12 October, also sought appointments to meet with the African and Latin American Regional Groups in Geneva during the course of her anticipated mission to Geneva in December 2004.

32. In a letter dated 3 November, the Special Rapporteur raised several issues of concern with the Government of Fiji. These encompassed reported misinterpretation among members of the public about the role of security servicemen provided by the Government of Fiji to the United Nations in Iraq and the need for the Government to clarify the nature of their deployment, as well as an inquiry into the efforts of the Government of Fiji to monitor the activities of private security companies. She also encouraged the Government to ratify the International Convention.

33. In correspondence dated 15 November 2004, the Special Rapporteur congratulated the Government of New Zealand for its ratification of the International Convention on 22 September and invited the Government to pay special attention to the note verbale seeking responses to the new proposal for a legal definition of a mercenary. On 16 November the Permanent Mission of New Zealand forwarded a copy of the Mercenary Activities (Prohibition) Act 2004.

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