The Issue of Mercenaries Case Study
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
1. Which dangers arise from the phenomenon of mercenarism? For the exercise of the right to self-determination? How do the UN Convention, Art. 47 of Protocol I, and the UN Special Rapporteur address these dangers?
2. (P I, Art. 47)
a. Why should only foreigners come within the definition of mercenaries? Do you agree with the Special Rapporteur that the notion should not be restricted to foreigners? (Part C, para. 43(k)) What was the reason for this limitation in Protocol I? Why should only those motivated by profit come within the definition?
1. Does Art. 47(1) of Protocol I mean that mercenaries are not protected by IHL? Or does it, on the contrary, mean that they are protected as civilians? Could mercenaries be neither combatants nor civilians? (GC III, Art. 4; GC IV, Art. 4)
b. Does Art. 47 of Protocol I prohibit the use of mercenaries? Is it a violation of Art. 47 or any other rule of IHL to be a mercenary? What are the consequences of Art. 47 for a mercenary? Does Art. 47(1) state the obvious, taking into account Art. 47(2)(e)?
c. What are the differences between the definition given by Art. 47 of Protocol I and that given by the UN Convention? Why was it deemed necessary by the drafters of the Convention to add the provisions of Art. 1(2)?
3.
a. Under IHL, may mercenaries be directly targeted? If they are not combatants, does it mean that they are entitled to the same protection as civilians directly participating in hostilities? May mercenaries be targeted at any time, or only when they are involved in hostilities? [See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
b. Under IHL, are mercenaries detained by the enemy during an international armed conflict protected as civilians? Are they protected persons? May the ICRC visit them? (GC IV, Arts 4(1) and (4), 5 and 143; P I, Art. 47)
c. Under IHL, may a mercenary be prosecuted for the mere fact of being a mercenary? Under the UN Convention? Under IHL, may he be prosecuted only if he commits war crimes? Are those persons accused of being mercenaries and who fall into the hands of the enemy in an international armed conflict protected persons under IHL? Are they protected civilians or prisoners of war? Should the judicial guarantees provided for in international law be taken into account or must they be respected? (UN Convention, Art. 11) Are they applicable? (GC III, Arts 4, 5(2) and 82-108; GC IV, Arts 4(1), (4) and 5; P I, Arts 47 and 75)
4. Does the fact that Protocol I contains the definition of a mercenary reduce the possibilities of that provisions application, as only States party to Protocol I are bound by it? What is the status of a mercenary, as defined in Art. 47 of Protocol I, in the hands of a State not party to Protocol I? (GC III, Art. 4; GC IV, Art. 4)
5. Does the status of mercenary exist in non-international armed conflicts? Would it be useful to introduce a rule similar to Art. 47 into the law of non-international armed conflicts? Does the absence of such a rule make it more difficult to punish mercenaries?
6. What is the probability of a person falling under Art. 47 of Protocol I? Can a State ensure that anyone fighting for it does not fall under Art. 47?
7. Could an intervention by mercenaries in an armed conflict transform that conflict into an international armed conflict between the mercenaries State of origin and the State in which the mercenaries are about to fight?
8. If mercenarism was to be radically prevented, what should be done? Should not the prohibition on mercenaries activities have been based on a prohibition at State level and not, or not solely, at the individual level? Why does IHL not have any provision to that effect?
9. Does the prohibition of mercenarism imply that the general trend of outsourcing State tasks to private companies may not concern the defence and security sector? What risks does the privatization of defence, security and police activities entail? How could these activities be privatized while safeguarding the values of IHL and human rights?
10. (Part C, Report of the Special Rapporteur)
a. (Paras 43 and 47) What do you think of the amended articles of the UN Convention suggested by the Rapporteur? From the standpoint of IHL? From the perspective of combating the mercenary phenomenon?
b. (UN Convention, Art. 1(2); Part C, paras 43 and 47) May a person who meets the definition of a mercenary in the UN Convention, but who fights in favour of a peoples self-determination or a legitimate government, still be called a mercenary? What would be the status of such a person under the UN Convention? Protocol I? Would the UN Special Rapporteur consider that person to be a mercenary? Would he tolerate mercenaries who defend a legitimate government or the territorial integrity and basic territorial infrastructure of a State, or who fight against an illegitimate government? Would he consider that they are committing an international crime? Would you agree that a distinction should be made between mercenaries fighting against legitimate governments or against the self-determination of a people, and those fighting against illegitimate governments or in favour of self-determination? What would the risks of such a distinction be?
c. Are the suggested new Arts 1(2) and 3 dealing with a jus in bello or with a jus ad bellum issue?
d. Is the suggested Art. 1(2) applicable (only or equally) in armed conflicts? If it is applicable (as the terms conflict in subpara. (b) and armed conflict in subpara. (c) suggest), would it be admissible to deprive anyone of IHL protection because he or she is fighting for the aims mentioned in subpara. (a)?
e. May a person who has combatant status under IHL be prosecuted for some or all of the crimes mentioned under the suggested Art. 3? May a person who is protected by the IHL of non-international armed conflicts be prosecuted for such crimes?
f. (Paras 30 and 43) Why does the Special Rapporteur assume that mercenaries commit more war crimes and human rights violations than other participants in armed conflicts?
11. (Part D, Report of the Working Group)
a. What is the difference between traditional mercenaries and employees of PMSCs? Are the latter defined under IHL? May employees of PMSCs be considered as mercenaries as defined by Art. 47 of Protocol I? Under which conditions?
b. Under IHL, what, if any, activities in armed conflicts may a State not outsource to PMSCs? May a State outsource direct participation in hostilities to a PMSC that is not made up of combatants of that State?
c. (Paras 5 and 25) Do you agree with the ICRC representative that few PMSC employees are regular combatants and members of armed forces, and they are thus civilians and lose protection under international humanitarian law when taking direct part in hostilities? Do you agree with the Working Group that PMSC employees operate in grey zones and that it is difficult to determine whether they are combatants or civilians? Or do they rather act in a grey zone between direct participation in hostilities, self-defence and law enforcement?
d. When are PMSC employees combatants? When are they considered as civilians directly participating in hostilities? When are they considered, if ever, as only indirectly participating in hostilities? Do they lose their protection as civilians in such a case?
e. (Para. 29) What are the consequences of the diversification of the activities undertaken by PMSC employees? Do they enjoy a different protection under IHL according to their activities? When are activities mentioned in para. 29 covered by Art. 47 of Protocol I?
f. (Para. 29) When does the provision of convoy and transport security, the guarding of military bases or the guarding of government offices constitute direct participation in hostilities? If force is used in performing those tasks, when can it be classified as self-defence under criminal law rather than as direct participation in hostilities? Does it depend on against whom force is used? [See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
g. (Para. 29) When does advice to and training of local forces constitute direct participation in hostilities? When does the provision of prison security? When does intelligence? When do covert operations? [See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
h. (Paras 31 and 32) What are the consequences of the diversification of nationalities of persons recruited by PMSCs? Under IHL, are their employees protected according to their nationality? What status and protection would an Iraqi national employed by an American PMSC in Iraq have? An American employee of the same company? Any other foreign employee? Would any of them be considered a protected person under IHL? (GC IV, Art. 4)
i. Are PMSC employees operating in an armed conflict bound by IHL? Only by criminalized rules of IHL? Is there a higher risk of them, rather than combatants, violating IHL?
j. How can PMSC employees know whether a given activity constitutes direct participation in hostilities? Why does it matter for them? Must a State hiring them make sure that they can know? May a State hire them for activities in which they will not know when they are directly participating in hostilities?
12. (Part D, para. 28) What are the risks of having PMSCs ensuring the protection of humanitarian organizations? Does it become dangerous because the same company may simultaneously also be involved in the conduct of hostilities? Is it realistic to expect the enemy and the local population to distinguish between employees involved in hostilities and employees protecting humanitarian workers? Should PMSCs be prohibited from engaging in both activities at the same time?
13.
a. (Part D, paras 45 and 46) Who has an obligation and who has jurisdiction to prosecute violations of IHL committed by employees of PMSCs? The contracting State? The State on whose territory the violations were committed? The State(s) of nationality of the employee(s) concerned? All these States?
b. When is the international responsibility of a State engaged when violations of IHL are committed by employees of a PMSC that it has hired? Beyond that, has a State a due diligence obligation to ensure respect for IHL by PMSCs it hires? What is the legal basis for such an obligation?
c. (Part D, para. 33) Is the international responsibility of the State that hired the PMSC engaged for violations committed by employees of a company subcontracted by that PMSC?
14. (Part D, paras 45 and 46) Would immunity from prosecution for employees who have committed war crimes be lawful under IHL? May a State decide that violations committed by private contractors can be neither investigated nor judged? May a State agree to accord immunity to certain persons, even for war crimes? At least if another State has jurisdiction and undertakes to prosecute those persons? (GC IV, Arts 146 and 149; CIHL, Rule 158)
RUBRIC
Excellent Quality
95-100%
Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
Poor Quality
0-45%
37-1 points
The background and/or significance are missing. No search history information is provided.
75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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The Issue of Mercenaries Case Study