|Mercenari e business
||Mr. Jack Straw
Private Military Companies: Options for Regulation
Foreign & Commonwealth Office
presentato al Parlamento inglese
12 febbraio 2002
Centro italiano Studi per la pace
www.studiperlapace.it - no ©
Documento aggiornato al: 2002
L’attività dei “soldati di ventura” era fino a qualche tempo fa quasi sempre caratterizzata da una sostanziale anarchia, sia nell’organizzazione della struttura utilizzata, sia dal punto di vista relazionale: da qualche anno, l’offerta privata di servizi militari ha subito una radicale trasformazione, passando da un modello ben conosciuto a livello internazionale, rappresentato dalla figura tradizionale del soldato mercenario, al più moderno esempio delle società militari private (Private Military Companies), i cui leader non sono più i temerari ed affascinanti “capitani di ventura” che hanno proliferato durante gli anni Sessanta e Settanta, ma uomini d’affari, che vendono merce assai preziosa: la sicurezza.
Per dirla con Jack Straw, Ministro degli esteri britannico: “Today’s world is a far away from the 1960s when private military activity usually meant mercenaries of the rather unsavoury kind involved in post-colonial or neo-colonial conflicts. Such people still exist; and some of them may be present at the lower end of the spectrum of private military companies.” E il ministro avverte: “The demand for private military services is likely to increase."
Legislation outside the UK
Few countries have national legislation on PMCs. The following is our understanding of the position of different countries following informal contact with officials. Anyone wishing to obtain an authoritive account should contact the government in question.
The US Arms Export Control Act of 1968 regulates both arms brokering and the export of military services. These were included in the Act by amendment in the 1980s following the discovery by the State Department that a number of private companies were giving military training to individuals from countries with whom the US did not have good relations. This Act now constitutes the primary law in the US establishing procedures for the sale of military equipment and related services.
The Act stipulates the purposes for which weapons and services may be transferred; these range from self-defence to internal security. Defence services are defined as including the provision of and assistance in the design, manufacture and use of defence equipment, any provision of technical data on that equipment, any provision of military advice and any training of foreign units and forces, both regular and irregular. Training includes training delivered by correspondence courses and media of all kinds, and through exercises.
US companies offering military advice to foreign nationals (in the US and overseas) are required to register with and obtain a licence from the State Department under the International Transfer of Arms Regulations (ITAR), which implement the Arms Export Control Act. The Government maintains the right to take action to confirm that licensing provisions are being met. In addition to this licensing procedure, congressional notification is required before the US Government approves exports of defence services worth in excess of $50 M.
The US Federal Criminal Statute prohibits US citizens from enlisting or from recruiting others from within the US to serve a foreign government or party to a conflict with a foreign government with which the US is at peace.
The South African Regulation of Foreign Military Assistance Act (FMA) entered into force in September 1998. It will become fully effective shortly when enabling legislation is passed into law. Before the FMA was passed only members of the South African National Defence Force (SANDF) were prohibited from engaging in mercenary activities. The government's decision to address the issues of mercenaries and PMCs in legislation was inspired mainly by the controversy surrounding the activities of South Africa's PMCs. The best known of these was Executive Outcomes.
The FMA creates an integrated mechanism for addressing the issues of mercenaries, PMCs and conventional arms control. It provides that no person within South Africa or elsewhere may recruit, use or train persons for, or finance or engage in mercenary activity. Mercenary activity is defined as 'direct participation as a combatant in armed conflict for private gain.' The Act regulates rather than prohibits foreign military assistance. Requests to supply such assistance and all arms related materials are scrutinised by the National Conventional Arms Control Committee (NCACC) which is chaired by a Minister from a government department having no direct links with the defence industry.
In most cases the Act's application depends upon the existence of armed conflict. The recipient of the service must be party to the conflict. If, for example, the recipient was a private company in need of protection services for legitimate concerns, the Act would not apply.
The NCACC has the power to refuse an application, or to grant a licence. Decisions are based on principles of international law, including human rights law. Licences may be revoked should there be a change in circumstances in the recipient state.
The Australian Crimes (Foreign Incursions and Recruitment) Act of 1978 makes it an offence to recruit mercenaries within Australia or for Australians to fight abroad in non-governmental forces.
The Commonwealth Director of Public Prosecutions is responsible for bringing any prosecutions under the Act. To date there have been few successful prosecutions but the Act is thought to have value as a deterrent. In 1998-9 the Director of Public Prosecutions laid 5 charges for indictable offences under the Act.
The Austrian Criminal Code has sections relating to the formation of military associations, building up of weapons stores and threats to Austrian neutrality. There has been no legal action against mercenaries or private military companies during the past two years. There are no plans to become party to the 1989 UN Convention.
The Belgian Parliament passed legislation in 1979 banning the participation of Belgians in foreign armies in foreign countries, but the necessary Royal Decree to make this law has not issued. Belgium is in the process of becoming a party to the 1989 UN Convention.
Under the Foreign Enlistment Act 1937 a Canadian is liable to prosecution for enlisting in an army which is actively engaged in warfare against a country allied to Canada. We are not aware of any prosecutions under this legislation. Canada has no plans to become party to the 1989 UN Convention.
Denmark has no legislation specifically aimed at regulating mercenaries or private military companies. However, paragraph 128 of the Penal Code makes it an offence (punishable by a fine or up to two years' imprisonment) to recruit in Denmark for foreign war service. There is also a law dating from 1914 (introduced in connection with Danish neutrality in the First World War) which makes it an offence to encourage enrolment in armed forces, or to provide any other support in a war where the Danish state is neutral. This law also gives the government the power specifically to forbid military service in a given country. It is understood that the concept of military service in these laws includes service in armed rebel groups as well as state armies. There have been no recent prosecutions under these laws. The Danish Government has no plans to become party to the 1989 UN Convention.
The French Government is actively looking at the possibility of including in the Penal Code measures to deal more effectively with criminal activities linked to mercenaries. France has no plans to become party to the 1989 UN Convention.
Chapter 16 Section 22 of the Penal Code provides punishment for recruiting Finnish citizens to the armed forces of another State. Crimes committed by Finnish citizens or residents abroad can be punished under Chapter 1 Section 6 of the Code, provided that they are punishable also in the country where they were committed. This would be the case for many of the crimes typically committed by mercenaries. Chapter 1 Section 7 provides for universal jurisdiction concerning crimes against international law, including genocide, war crimes and crimes against humanity. Finland has no plans to become party to the 1989 UN Convention.
Germany has no legislation covering the activities of PMCs. Individual German citizens may sign up as mercenaries or join organisations such as the French Foreign Legion. Germany signed the 1989 UN Convention in 1990, but has not yet ratified it and is unlikely to do so in the foreseeable future.
The recruitment of mercenaries in Greece is illegal. There are no plans to change this legislation nor to ratify the 1989 UN Convention.
Italy ratified the 1989 UN Convention in 1995 and subsumed the Convention into Italian law by amendments to the relevant articles of the Penal Code. Under the legislation, all mercenary activity is prohibited. Paragraph 4 of the law covers activities other than direct combat and sets a penalty of 4 to 14 years imprisonment for hiring, using, financing or training of mercenaries. We are unaware of any prosecutions brought under the legislation.
Japan has no relevant legislation and no plans to introduce any. Nor are there any plans to become party to the 1989 UN Convention.
Since 1984 it has been illegal under Article 101 of the Dutch Criminal Code for Dutch nationals to enter military service for a nation with which the Netherlands is at war or is about to be at war. Violation of this article is punishable with a maximum of four years imprisonment or a maximum fine of Dfl 100,000 (£30,000). Under Article 107a, the same punishments apply in the event of an armed conflict other than a war in which the Netherlands is involved, either in individual or collective self-defence, or to restore international peace and security. The relevant articles do not include restrictions on activities other than in enemy military service. Article 205 of the Criminal Code states that the recruitment in the Netherlands of personnel for a foreign military service is an offence punishable with a maximum one year imprisonment or a maximum fine of Dfl 25,000 (£7,000). No prosecutions have ever been brought under these articles. There are no plans at present to extend this legislation, nor for the Netherlands to become party to the 1989 UN Convention.
New Zealand does not have legislation relating to the regulation or restriction of mercenary activity or the activities of private military companies; there are no immediate plans to introduce legislation. New Zealand is however taking steps to ratify the 1989 UN Convention. This is likely to take place in 2002.
The Norwegian Civil Penal Code includes provisions which criminalise the recruitment, without the King's permission, of troops in the realm for foreign military service. The Code also criminalises the formation, participation in or support of a private organisation of a military character. We are unaware of any prosecutions under these regulations. A 1937 Act also relates to measures preventing participation in wars in foreign countries. The Act provides that the King may issue an order prohibiting 1) anyone in the realm being recruited for military service for a country of which he is not a national and in which he has not resided for a prescribed period; and 2) anyone from leaving Norway for such a country in order to take part in a war. The purpose of the Act was to prevent Norwegians from participating in the Spanish civil war. Since then, the King has never made use of the authority the Act provides. There are at present no plans to extend existing legislation nor for Norway to become party to the 1989 UN Convention.
The activity of Portuguese nationals engaged in mercenary activity abroad is banned under provisions of the Portuguese Criminal Code. These cover combat activities but not advice or technical assistance to foreign military forces. No prosecutions have been brought under the existing legislation.
Article 359 of the Russian Criminal Code makes the recruitment, training or financing of mercenaries, and participation by a mercenary in an armed conflict, punishable by imprisonment (4 to 8 years and 3 to 7 years respectively).
Spain has no legislation or regulation to prevent a private citizen from working abroad as a mercenary. The Code of Military Law makes it a punishable offence for a serving member of the armed forces. There are no plans to introduce legislation in this field nor for Spain to become party to the 1989 UN Convention.
The concept of mercenary is not known in Swedish law. Thus the Swedish Penal Code does not explicitly prohibit a Swedish citizen serving as a mercenary, nor activities such as the training and financing of mercenaries. However, Section 12 of Chapter 19 of the Code prescribes that a person who, without the permission of the government, recruits people for foreign military service or service comparable to it or induces people to leave the country unlawfully in order to enter such service, shall be sentenced for unlawful recruiting to pay a fine or maximum imprisonment of six months or, if the country is at war, to imprisonment for a maximum of two years. Sweden has not become party to the 1989 UN Convention, some aspects of which are not compatible with Swedish law.
The Penal Code prohibits Swiss nationals from joining a force that is designed to fight abroad. The sole exception is the Vatican Swiss Guard. Between 1994 and 2000, 17 persons were sentenced for having served in foreign armed forces (eg the Foreign Legion).
Article 63 of the Ukrainian Criminal Code covers mercenary activities with a maximum sentence on conviction of 10 years' imprisonment. There are no plans to extend current legislation; Ukrainian legislation gives a basis for prosecution in the event of non-combatant support (eg medical) of a mercenary force. Ukraine ratified the 1989 UN Convention in 1993.
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