General Assembly

Distr. GENERAL

4 December 1989

ORIGINAL:
ENGLISH

A/RES/44/34
72nd plenary meeting
4 December 1989

44/34. International Convention against the Recruitment, Use,
Financing and Training of Mercenaries

The General Assembly,

Considering that the progressive development of international law and its
codification contribute to the implementation of the purposes and principles
set forth in Articles 1 and 2 of the Charter of the United Nations,

Mindful of the need to conclude, under the auspices of the United
Nations, an international convention against the recruitment, use, financing
and training of mercenaries,

Recalling its resolution 35/48 of 4 December 1980, by which it
established the Ad Hoc Committee on the Drafting of an International
Convention against the Recruitment, Use, Financing and Training of Mercenaries
and requested it to elaborate at the earliest possible date an international
convention to prohibit the recruitment, use, financing and training of
mercenaries,

Having considered the draft convention prepared by the Ad Hoc Committee
in pursuance of the above-mentioned resolution and finalized by the Working
Group on the Drafting of an International Convention against the Recruitment,
Use, Financing and Training of Mercenaries, which met during the forty-fourth
session of the General Assembly,

Adopts and opens for signature and ratification or for accession the
International Convention against the Recruitment, Use, Financing and Training
of Mercenaries, the text of which is annexed to the present resolution.

ANNEX

International Convention against the Recruitment, Use,
Financing and Training of Mercenaries

The States Parties to the present Convention,

Reaffirming the purposes and principles enshrined in the Charter of the
United Nations and in the Declaration on the Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations,

Being aware of the recruitment, use, financing and training of
mercenaries for activities which violate principles of international law such
as those of sovereign equality, political independence, territorial integrity
of States and self-determination of peoples,

Affirming that the recruitment, use, financing and training of
mercenaries should be considered as offences of grave concern to all States
and that any person committing any of these offences should either be
prosecuted or extradited,

Convinced of the necessity to develop and enhance international
co-operation among States for the prevention, prosecution and punishment of
such offences,

Expressing concern at new unlawful international activities linking drug
traffickers and mercenaries in the perpetration of violent actions which
undermine the constitutional order of States,

Also convinced that the adoption of a convention against the recruitment,
use, financing and training of mercenaries would contribute to the eradication
of these nefarious activities and thereby to the observance of the purposes
and principles enshrined in the Charter of the United Nations,

Cognizant that matters not regulated by such a convention continue to be
governed by the rules and principles of international law,

Have agreed as follows:

Article 1
For the purposes of the present Convention,

1. 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.

2. A mercenary is also any person who, in any other situation:

(a) Is specially recruited locally or abroad for the purpose of
participating in a concerted act of violence aimed at:

(i) Overthrowing a Government or otherwise undermining the
constitutional order of a State; or

(ii) Undermining the territorial integrity of a State;

(b) Is motivated to take part therein essentially by the desire for
significant private gain and is prompted by the promise or payment of material
compensation;

(c) Is neither a national nor a resident of the State against which such
an act is directed;

(d) Has not been sent by a State on official duty; and

(e) Is not a member of the armed forces of the State on whose territory
the act is undertaken.

Article 2
Any person who recruits, uses, finances or trains mercenaries, as defined
in article 1 of the present Convention, commits an offence for the purposes of
the Convention.

Article 3
1. A mercenary, as defined in article 1 of the present Convention, who
participates directly in hostilities or in a concerted act of violence, as the
case may be, commits an offence for the purposes of the Convention.

2. Nothing in this article limits the scope of application of article 4 of
the present Convention.

Article 4
An offence is committed by any person who:

(a) Attempts to commit one of the offences set forth in the present
Convention;

(b) Is the accomplice of a person who commits or attempts to commit any
of the offences set forth in the present Convention.

Article 5
1. States Parties shall not recruit, use, finance or train mercenaries and
shall prohibit such activities in accordance with the provisions of the
present Convention.

2. States Parties shall not recruit, use, finance or train mercenaries for
the purpose of opposing the legitimate exercise of the inalienable right of
peoples to self-determination, as recognized by international law, and shall
take, in conformity with international law, the appropriate measures to
prevent the recruitment, use, financing or training of mercenaries for that
purpose.

3. They shall make the offences set forth in the present Convention
punishable by appropriate penalties which take into account the grave nature
of those offences.

Article 6
States Parties shall co-operate in the prevention of the offences set
forth in the present Convention, particularly by:

(a) Taking all practicable measures to prevent preparations in their
respective territories for the commission of those offences within or outside
their territories, including the prohibition of illegal activities of persons,
groups and organizations that encourage, instigate, organize or engage in the
perpetration of such offences;

(b) Co-ordinating the taking of administrative and other measures as
appropriate to prevent the commission of those offences.

Article 7
States Parties shall co-operate in taking the necessary measures for the
implementation of the present Convention.

Article 8
Any State Party having reason to believe that one of the offences set
forth in the present Convention has been, is being or will be committed shall,
in accordance with its national law, communicate the relevant information, as
soon as it comes to its knowledge, directly or through the Secretary-General
of the United Nations, to the States Parties affected.

Article 9
1. Each State Party shall take such measures as may be necessary to
establish its jurisdiction over any of the offences set forth in the present
Convention which are committed:

(a) In its territory or on board a ship or aircraft registered in that
State;

(b) By any of its nationals or, if that State considers it appropriate,
by those stateless persons who have their habitual residence in that
territory.

2. Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over the offences set forth in articles 2, 3 and 4
of the present Convention in cases where the alleged offender is present in
its territory and it does not extradite him to any of the States mentioned in
paragraph 1 of this article.

3. The present Convention does not exclude any criminal jurisdiction
exercised in accordance with national law.

Article 10
1. Upon being satisfied that the circumstances so warrant, any State Party
in whose territory the alleged offender is present shall, in accordance with
its laws, take him into custody or take such other measures to ensure his
presence for such time as is necessary to enable any criminal or extradition
proceedings to be instituted. The State Party shall immediately make a
preliminary inquiry into the facts.

2. When a State Party, pursuant to this article, has taken a person into
custody or has taken such other measures referred to in paragraph 1 of this
article, it shall notify without delay either directly or through the
Secretary-General of the United Nations:

(a) The State Party where the offence was committed;

(b) The State Party against which the offence has been directed or
attempted;

(c) The State Party of which the natural or juridical person against
whom the offence has been directed or attempted is a national;

(d) The State Party of which the alleged offender is a national or, if
he is a stateless person, in whose territory he has his habitual residence;

(e) Any other interested State Party which it considers it appropriate
to notify.

3. Any person regarding whom the measures referred to in paragraph 1 of this
article are being taken shall be entitled:

(a) To communicate without delay with the nearest appropriate
representative of the State of which he is a national or which is otherwise
entitled to protect his rights or, if he is a stateless person, the State in
whose territory he has his habitual residence;

(b) To be visited by a representative of that State.

4. The provisions of paragraph 3 of this article shall be without prejudice
to the right of any State Party having a claim to jurisdiction in accordance
with article 9, paragraph 1 (b), to invite the International Committee of the
Red Cross to communicate with and visit the alleged offender.

5. The State which makes the preliminary inquiry contemplated in paragraph 1
of this article shall promptly report its findings to the States referred to
in paragraph 2 of this article and indicate whether it intends to exercise
jurisdiction.

Article 11
Any person regarding whom proceedings are being carried out in connection
with any of the offences set forth in the present Convention shall be
guaranteed at all stages of the proceedings fair treatment and all the rights
and guarantees provided for in the law of the State in question. Applicable
norms of international law should be taken into account.

Article 12
The State Party in whose territory the alleged offender is found shall,
if it does not extradite him, be obliged, without exception whatsoever and
whether or not the offence was committed in its territory, to submit the case
to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those authorities
shall take their decision in the same manner as in the case of any other
offence of a grave nature under the law of that State.

Article 13
1. States Parties shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect of the
offences set forth in the present Convention, including the supply of all
evidence at their disposal necessary for the proceedings. The law of the
State whose assistance is requested shall apply in all cases.

2. The provisions of paragraph 1 of this article shall not affect
obligations concerning mutual judicial assistance embodied in any other
treaty.

Article 14
The State Party where the alleged offender is prosecuted shall in
accordance with its laws communicate the final outcome of the proceedings to
the Secretary-General of the United Nations, who shall transmit the
information to the other States concerned.

Article 15
1. The offences set forth in articles 2, 3 and 4 of the present Convention
shall be deemed to be included as extraditable offences in any extradition
treaty existing between States Parties. States Parties undertake to include
such offences as extraditable offences in every extradition treaty to be
concluded between them.

2. If a State Party which makes extradition conditional on the existence of
a treaty receives a request for extradition from another State Party with
which it has no extradition treaty, it may at its option consider the present
Convention as the legal basis for extradition in respect of those offences.
Extradition shall be subject to the other conditions provided by the law of
the requested State.

3. States Parties which do not make extradition conditional on the existence
of a treaty shall recognize those offences as extraditable offences between
themselves, subject to the conditions provided by the law of the requested
State.

4. The offences shall be treated, for the purpose of extradition between
States Parties, as if they had been committed not only in the place in which
they occurred but also in the territories of the States required to establish
their jurisdiction in accordance with article 9 of the present Convention.

Article 16
The present Convention shall be applied without prejudice to:

(a) The rules relating to the international responsibility of States;

(b) The law of armed conflict and international humanitarian law,
including the provisions relating to the status of combatant or of prisoner of
war.

Article 17
1. Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not settled
by negotiation shall, at the request of one of them, be submitted to
arbitration. If, within six months from the date of the request for
arbitration, the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
International Court of Justice by a request in conformity with the Statute of
the Court.

2. Each State may, at the time of signature or ratification of the present
Convention or accession thereto, declare that it does not consider itself
bound by paragraph 1 of this article. The other States Parties shall not be
bound by paragraph 1 of this article with respect to any State Party which has
made such a reservation.

3. Any State Party which has made a reservation in accordance with
paragraph 2 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.

Article 18
1. The present Convention shall be open for signature by all States until
31 December 1990 at United Nations Headquarters in New York.

2. The present Convention shall be subject to ratification. The instruments
of ratification shall be deposited with the Secretary-General of the United
Nations.

3. The present Convention shall remain open for accession by any State. The
instruments of accession shall be deposited with the Secretary-General of the
United Nations.

Article 19
1. The present Convention shall enter into force on the thirtieth day
following the date of deposit of the twenty-second instrument of ratification
or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit
of the twenty-second instrument of ratification or accession, the Convention
shall enter into force on the thirtieth day after deposit by such State of its
instrument of ratification or accession.

Article 20
1. Any State Party may denounce the present Convention by written
notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year after the date on which the
notification is received by the Secretary-General of the United Nations.

Article 21
The original of the present Convention, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations, who shall send
certified copies thereof to all States.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by
their respective Governments, have signed the present Convention.