The fight against mercenarism began in the last century. In 1977, an additional protocol to the Conventions of 1949 was adopted. In 1989, an International Act was approved in New York that strengthens responsibility for mercenarism, which implies the active contribution of each state to the elimination of this phenomenon in the world, including through the application of criminal punishment.
Russian legislation
According to Art. 359 of the Criminal Code, mercenarism , training, financing, other material support of persons, as well as their use in armed conflicts or military operations, shall be punishable by imprisonment of 4-8 years. If these acts are committed by an entity using official position, or in relation to a minor, imprisonment of 7-15 years is assigned. Additionally, depending on the circumstances, a fine of up to 500 thousand rubles may be charged. or equal to income for 3 years with a restriction of freedom for 1-2 years. Military mercenaries involved in conflicts or hostilities are punished with three to seven years in prison. Additionally, a restriction of freedom for 1-2 years may be imputed.
Note
The subject is a mercenary who seeks to receive material rewards. At the same time, he is not a citizen of a country participating in an armed conflict / military operation, does not reside on its territory permanently. A person sent to the state to perform official duties is not considered a mercenary.
Comments on Art. 359 of the Criminal Code
Mercenary involves the involvement of individuals:
- Those who will fight for personal gain, and they are really promised a party to the conflict or, on her behalf, a material reward, the amount of which significantly exceeds that promised or paid to combatants of a similar rank included in the personnel of the armed forces of this state.
- Non-citizens of a country participating in hostilities, not permanently residing on its territory.
- Not included in the armed forces of a state that is a party to hostilities.
- Not directed by a country that does not act as a participant in the armed confrontation, for the implementation of official tasks as an entity included in its armed forces.
- Specially recruited locally or abroad for subsequent participation in the armed confrontation. Thus, in particular, mercenaries appeared in Syria on the side of ISIS (the organization is prohibited in Russia).
Additional signs
Punishment under Art. 359 of the Criminal Code of the Russian Federation is charged to a person if, in any situation other than the above cases, he is specially recruited on the spot or outside the territory of the conflict to carry out joint violent actions aimed at:
- The overthrow of the current government or the undermining of the constitutional foundations of the country.
- Violation of the territorial integrity of the state.
Such goals, in particular, are pursued by mercenaries in Syria by the ISIS terrorist organization, which is banned in many countries, including Russia.
Composition specifics
The punishment under this article applies to persons who are guided primarily by the desire to obtain substantial personal benefits while participating in the conflict. Moreover, this person is encouraged to join a foreign legion by direct payment of a large amount or by the promise of such a fee. Punishment will be applied according to the commented norm to any person who recruits, uses, finances or educates persons who meet the above criteria. Art. 359 of the Criminal Code also applies to citizens who commit or try to commit any crime cited in the Conventions mentioned above. However, nothing can limit the scope of this provision.
International law
The key provisions regarding this issue are defined by the Declaration on International Legal Principles Relating to Friendly Relations and Cooperation between States. According to the document, each power is obliged to refrain from creating or encouraging the organization of armed gangs or irregular forces to invade other territories. Thus, a foreign legion of recruited citizens will be considered a violation of the Declaration adopted in accordance with the UN Charter. It is worth noting that Russia is not involved in the 1989 Convention. Note to Art. 359 of the Criminal Code is formulated on the basis of the provisions of the Additional Protocol of 1977
Terminology
Under the material remuneration specified in Art. 359 of the Criminal Code, it should be understood that a person receives money or other values, property benefits for his activity or work. A subject who does not permanently reside in a country participating in a conflict is a citizen of another state or a person who does not have citizenship.
Differentiation of definitions
It is necessary to distinguish mercenaries from employees of non-belligerent countries, sent on a business trip to perform official tasks defined by bilateral agreements. This can be advisers, instructors, consultants, other entities that provide the necessary assistance in the training of military personnel and training in military affairs. In accordance with the Federal Law "On Military Duty", for example, the passage of service is also carried out by foreigners under a contract. These entities are given the status established by Federal Law No. 76.
Recruitment
It should be understood as actions that are aimed at hiring for service, reaching written or oral agreement with a citizen of a third-party state on his participation in the conflict for material compensation. Recruitment can be expressed in agitation, compiling lists of applicants, registration, sending them to a sabotage school, base, and so on. Training is considered to be activities in psychological and physical training, the process of obtaining by mercenaries of special knowledge in the military sphere, training of skills, methods of using weapons, equipment, ammunition, explosives and so on. Financing a person involved in an armed conflict involves any material support. Including direct transfer of money to the subject, opening a bank account in his name, the purchase of appropriate uniforms, weapons, etc.
additional characteristics
The use of mercenaries in conflicts on the territory of other states is called to attract them to direct participation in battles. The latter, in turn, should be understood not only as the execution of actions during the battles, but also their preparation and planning. As a mandatory feature for the application of Art. 359 of the Criminal Code advocates the presence of armed conflict or hostilities in the territory of another state. The crime is considered completed from the beginning of the implementation of the actions defined in the legislation as recruitment, training, material support, including financial support, the use of persons trained at special training grounds and other facilities, as well as the beginning of the person’s participation in them.
Subjective part
Punishment under Art. 359 of the Criminal Code can be applied to sane citizens from the age of sixteen. In part 2 of the commented norm, the subject is special. It is a person who commits a crime using his official status. Any official, including a civil servant, can act as him. In addition, in part two of the article a qualifying attribute is indicated - the commission of a crime against minors. We are talking about people who have not reached the age of 18. The use of official status refers to such actions that are committed contrary to official interests. In part 2, liability is also incurred for entities implementing managerial functions in a non-state company and serving in local government structures.