IMPLEMENTATION OF THE GENEVA CONVENTIONS BILL Presentation to the PCD on 15 June 2011

IMPLEMENTATION OF THE GENEVA CONVENTIONS BILL KEY POLICY PRONOUNCEMENTS

BACKGROUND In 1952, South Africa became a State Party to the Geneva Conventions. In 1995, South Africa became a State Party to the two Additional Protocols. Geneva Conventions and their AP are part of the IHL, which is a set of rules that seek to limit the effects of armed conflicts on both combatants and non-combatants and regulates the use of weapons during an armed conflict. Artciles 49,50,129,146 common to the four Conventions require all States Parties to enact enabling legislation (Domestic legislation) to give full effect to the Conventions.

Section 231(4) of the Constitution provides that: “any international agreement becomes law in the Republic when it is enacted into law by national legislation, …”. The Bill is drafted in response to the Republic's obligation under the Geneva Conventions. By promulgating the Bill, the Republic fulfills its obligation under the Conventions. The Bill was approved by Cabinet for introduction in Parliament,certified by the OCSLA and introduced during June 2011.

Section 231(4) of the Constitution provides that any international agreement becomes law within this country when enacted into law by national legislation, but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. The Bill is drafted in response to the Republic's obligation under the Certain Conventional Weapons Convention (CCW). By promulgating the Bill, the Republic would have fulfilled its obligation under the Convention. The Bill was approved by Cabinet for introduction in Parliament and introduced during February 2007.

GENEVA CONVENTIONS Convention I: For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;   Convention II: For the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea; Convention III: Relative to the treatment of Prisoners of War; Convention IV: Relative to the Protection of Civilian Persons in Time of War;

ADDITIONAL PROTOCOLS Additional Protocol I (AP I): For the Protection of Victims of International Armed Conflicts; and Additional Protocol II (AP II): For the Protection of Victims of Non-International Armed Conflicts.

KEY POLICY TENETS CAPTURED IN THE BILL Enactment: Enacts the Geneva Conventions and their APs into SA law thereby giving the Conventions the force of law. This also enables the South African Courts to apply and enforce the provisions of the Conventions; Breaches of the Conventions: The Conventions provide for two types of breaches viz. “grave breaches” and “other breaches”. Grave Breaches: Clause 4 defines a grave breaches of the Conventions, as: a grave breach referred to in Article 50 of the First Convention; a grave breach referred to in Article 51 of the Second Convention; a grave breach referred to in Article 130 of the Third Convention; a grave breach referred to in Article 147 of the Fourth Convention; or a grave breach referred to in Article 11 or 85 of Protocol I. A list of grave breaches is attached as an Annexure to this Presentation.

KEY POLICY TENETS CAPTURED IN THE BILL “Other Breaches” Clause 5 provides for “other breaches”: This is a reference to any other breach that is not a grave breach; The Bill criminalises all breaches of the Conventions and their APs and provides for penalties depending on the nature of the breach. Interestingly the Bill creates an offence for failure to prevent the commission of breaches of the Conventions by members of the under command (Clause 5(1)). The Act also creates an offence for any person, within or outside SA, who fails to act when under duty to do so in order to prevent commission of grave breach (Clause 5(2). Extra-Territorial Jurisdiction: The Bill extends the jurisdiction of our courts beyond our borders. In other words, SA courts could entertain breaches of the Conventions irrespective of where and by whom they were committed.

KEY POLICY TENETS CAPTURED IN THE BILL Determination of status: Any person charged with an offence in terms of this Act may apply to the court before which he or she has been arraigned for a declaration that he or she has the status of prisoner of war or protected internee (Clause 7(1)); In the same vein, when there is doubt as to whether or not a person charged with an offence in terms of this Act is a prisoner of war or a protected internee, the appropriate prosecuting authority may apply to the court before which that person has been arraigned for a declaration that that person does not have the status of prisoner of war or protected internee (Clause 7(2)).

KEY POLICY TENETS CAPTURED IN THE BILL Legal Representation: The Bill guarantees the right to legal representation by a legal practitioner who is qualified to appear before the court-(Clause 9(1)); Indigent accused person may qualify for legal representation at state expenses-(Clause 9(5)); Protection of Emblem: The Bill provides for the protection of red cross, red crescent etc emblems subject to the provisions of SA Red Cross Society Act. The Act also prohibit the use or display of the various emblems without consent of the Minister. An offence is provided for any violations of these protections.

KEY POLICY TENETS CAPTURED IN THE BILL Use of Emblem by SANDF: Subject to the direction of the Minister, the Military Health Services of the South African National Defence Force may, both in peacetime and in time of armed conflict, use the Red Cross emblem to mark its medical personnel, medical units and transports on the ground, at sea and in the air, and all other equipments in its use. Personnel of the Military Health Services and Religious personnel of the South African National Defence Force are allowed to wear armlets and carry identity cards issued by South African National Defence Force displaying the Red Cross.

KEY POLICY TENETS CAPTURED IN THE BILL The ICRC, International Federation of the Red Cross and Red Crescent Societies, may make use of the Red Cross and the Red Crescent (Clause 17(1)). Rome Statute Act: The provisions of this Act must not be construed as limiting, amending, repealing or otherwise altering any provision of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002), or as exempting any person from any duty or obligation imposed by that Act or prohibiting any person from complying with any provision of that Act.

CONCLUSION This Bill should be seen in the context of all other international humanitarian law related Bills that the Department of Defence has, over the past couple of years, presented to Parliament e.g. Anti-personnel Mines, Prohibition or Restriction of CCW, Prohibition of Mercenary Activities and Regulation of Certain Assistance in a Country of Armed Conflict Bills etc. This Bill constitutes another significant instalment in the Republic’s continuing endeavours to ensure that the effects of armed conflicts are kept to the minimum.

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