A/HRC/17/44 the continued use of mercenaries by Libyan authorities (preambular para. 16). The Government of the Libyan Arab Jamahiriya has referred to the Al-Qaida mercenaries operating within the ranks of opposition armed forces. As the Commission carried out its investigation, it also received reports of the use of mercenaries, including violations committed by mercenaries. In many cases, the term appears to be being used in a general term to refer to fighters on either side who are foreign nationals. While there is strong evidence of the participation of foreign nationals in the armed conflict, the precise route by which such persons came to be engaged remains unclear. In particular, the Commission has not had sufficient information as to whether foreign nationals were previously resident in Libya, whether they were engaged as part of an existing foreign military exchange, and the timing of their recruitment (e.g. if they were recruited in 2011, whether this was for the purpose of suppressing the demonstration or to take part in the armed conflict). These factors have an obvious importance for the classification of persons as “mercenaries”. 2. Applicable law 181. The use of mercenaries is prohibited under two treaties that Libya has ratified: the International Convention against the Recruitment, Use, Financing and Training of Mercenaries and the Convention for the Elimination of Mercenarism in Africa. The definition of mercenary is very specific. Under article 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, a mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) 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 rank and functions in the armed forces of that party; (c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) Is not a member of the armed forces of a party to the conflict; and (e) 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. 182. Situations other than armed conflict fall within a second part of the definition of that Convention. However, in these cases, there are additional requirements to show that the person is recruited for the purpose of participating in a concerted act of violence aimed at overthrowing a Government or otherwise undermining the constitutional order of a State or month to help Gaddafi forces‟”, The Telegraph, 6 April 2011. Available from www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8432996/Libya-Belarusmercenary-paid-1900-a-month-to-help-Gaddafi-forces.html. According to The Telegraph, a defected former Libyan army official has given details of the recruitment of 450 fighters from the disputed Western Sahara region with each of them paid $1,000 to fight for the Government forces for two months. Con Coughlin, “Libya: Col Gaddafi „has spent £2.1m on mercenaries‟”, The Telegraph, 20 April 2011. Available from www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8464254/Libya-Col-Gaddafi-hasspent-2.1m-on-mercenaries.html. The New York Times reported how Libya recruited mercenaries from poor communities in Mali as well as in the nomadic Tuaregs, who live cross borders among Algeria, Libya, Mali and Nigeria, paid 1,000 US$ a day. Jeffrey Gettleman, “Libyan Oil Buys Allies for Qaddafi”, The New York Times, 15 March 2011, available from www.nytimes.com/2011/03/16/world/africa/16mali.html?_r=1&ref=mali. 52