CYIL 2014

CAROLLANN BRAUM CYIL 5 ȍ2014Ȏ (c) 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; (d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f ) 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. 17 This is very restrictive, however, because all six conditions must be met. 18 In 1989, the UN General Assembly, condemning the use of mercenaries under international law, put forth an identical definition in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 19 which Ukraine is a party to. 20 It also included additional provisions for the purpose of a mercenary in Article 1 (2)(a): “(i) Overthrowing a Government or otherwise undermining the constitutional order of a State; or (ii) Undermining the territorial integrity of a State.” 21 If there are mercenaries in Ukraine, there would be a good argument that they would qualify under these purposes. Alternatively, if a fighter is not classified as a mercenary, non State military personnel may be considered paramilitaries or private military/security contractors. While the concept of mercenaries is far from new under international law, the notion of private military/security contractors is something that has skyrocketed since the end of the Cold War. The International Committee of the Red Cross has defined PMSCs as businesses “that provide military and/or security services,” which can include “the provision of armed guards and the protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to, or training of, local forces and security personnel.” 22 The difference between mercenaries and PMSCs can be a blurry line, at best. Most often, PMSCs engage in much broader roles than mercenaries. 17 Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Article 47 (1977). 18 Rule 108: Mercenaries, International Committee of the Red Cross: Customary International Law, available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter33_rule108. 19 G.A. Res. 44/34, 72 nd Plenary Meeting, International Convention against the Recruitment, Use, Financing and Training of Mercenaries, U.N. Doc. A/Res/44/34 (1989). 20 Ukraine signed the Convention on September 21, 1990 and ratified it on September 13, 1993. States Parties to International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, International Committee of the Red Cross, available at http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_ treatySelected=5530. 21 Ibid . at Article 1(2)(a)(i) and (ii). 22 “International humanitarian law and private military/security companies,” International Committee of the Red Cross Resource Centre, December 10, 2013, available at http://www.icrc.org/eng/ resources/documents/faq/pmsc-faq-150908.htm.

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