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
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