PRESENTATION TO SELECT COMMITTEE PRESENTATION TO SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL ON SECURITY AND CONSTITUTIONAL

DEVELOPMENTDEVELOPMENT

ON THEON THE

IMPLEMENTATION OF THE GENEVA IMPLEMENTATION OF THE GENEVA CONVETIONS BILL [B 10B – 2011]CONVETIONS BILL [B 10B – 2011]

06 JUNE 2012 06 JUNE 2012

AIMAIM

To brief the Select Committee on origin and objectives of the Implementation of Geneva Conventions Bill

BACKGROUNDBACKGROUND

South Africa acceded to the Geneva Conventions on 31 March 1952. The Geneva Conventions comprise four conventions, namely the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (Convention I), the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Convention II), the Geneva Convention Relative to the Treatment of

BACKGROUND CONT.BACKGROUND CONT.

Prisoners of War of 12 August 1949 (Convention III) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Convention IV).

South Africa also acceded on 21 November 1995 to Protocols Additional to those Conventions, viz, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Add Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August

BACKGROUND CONT.BACKGROUND CONT. 1949, and Relating to the Protection of Victims of Non-

International Armed Conflicts (Add Protocol II), 8 June

1977.

OBJECTIVES OF OBJECTIVES OF CONVENTIONSCONVENTIONS

Conventions aims to provide greater protection in International Law of the individuals against the hardships of war.

The Conventions specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.

OBLIGATION ON STATE OBLIGATION ON STATE PARTIESPARTIES

South Africa, as state party to the Geneva Conventions and their additional Protocols, is legally obliged to enact their provisions into SA law by national legislation.

Art 49/50/129/146 common to the four conventions provides:

“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article”.

CONSTITUTIONAL CONSTITUTIONAL REQUIREMENTSREQUIREMENTS

Section 231(4) of the Constitution of the RSA 1996 requires that any international agreement be enacted into legislation before it becomes law in the Republic.

It provides: “Any international agreement becomes law in the Republic when it is enacted into law by national legislation;…..”

Implementation of Geneva Conventions Bill seeks to fulfill this provision of the Constitution and Article 49/50/129/146 common to the four Conventions

BILLBILL

– The Bill seeks to incorporate the provisions of Geneva Conventions and their Additional Protocols into law, to ensure prevention and punishment of breaches of the Geneva Conventions and their Additional Protocols, to facilitate the implementation and to provide for the enforcement of the Geneva Conventions and their Additional Protocols in respect of breaches that may occur within or outside the South African territory.

Sec 2 and 3Sec 2 and 3

Sec 2 contains objects of the Act which are to— (a) enact the Conventions into law as is required by section

231(4) of the Constitution;

(b) ensure that the Republic complies with the Conventions; and;

(c) ensure prevention of and punishment for breaches of the Conventions;

  Section 3 of the Bill enact the Geneva Conventions into law of the

Republic thereby giving the Conventions the force of law in the territory of the Republic. This also enables the South African Courts to apply and enforce the provisions of the Conventions

GRAVE BREACHES OF GRAVE BREACHES OF CONVENTIONS SEC 4CONVENTIONS SEC 4

S4(1) make it an offence for any person who, whether within or outside the Republic, commits a grave breach of the Conventions.

S4(2) defines a grave breaches of the Conventions, as: (a) a grave breach referred to in Article 50 of

the First Convention;– (b) a grave breach referred to in Article 51 of the

Second Convention;– (c) a grave breach referred to in Article 130 of the

Third Convention;

GRAVE BREACHES CONT.GRAVE BREACHES CONT.

. d) a grave breach referred to in Article 147 of the Fourth Convention; or

(e) a grave breach referred to in Article 11 or 85 of Protocol I.

EXTRATERRITORIAL EXTRATERRITORIAL APPLICATION SEC 4APPLICATION SEC 4

This Sections creates extraterritorial application of the Act for offences not regarded as grave breaches of the Conventions. This Act differentiates between grave breaches S4(1), and other offences Sec 4(3)

PENALTYPENALTY

– Sec 4(5) A person convicted of an offence contemplated in subsection (1), (3) or (4) is liable to a fine or to imprisonment, including imprisonment for life, or to such imprisonment without the option of a fine or to both a fine and such imprisonment.

– The Act does not differentiate between the grave breaches and other breaches of the Conventions in meting out the punishment for contraventions thereof

FAILURE TO PREVENT FAILURE TO PREVENT BREACHES OF CONV S5BREACHES OF CONV S5

The Act creates offences for Superior Military Officer who fails to prevent the commission of breaches of the Conventions by forces under his command, whether within or outside the Borders of the Republic-s5(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-s5(2).

JURISDICTION SEC 6JURISDICTION SEC 6

This section seeks to give the court in the Republic, jurisdiction to try and sentence a person for any offences committed outside the Republic-S 6(1)

S6(2) provides the enforcement of the Act in relation to the sentences or penalty made outside the Republic as if the penalty or sentence had been made, pronounced or imposed in the Republic.

DETERMINATION OF STATUS DETERMINATION OF STATUS SEC 7SEC 7

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.S7(1)

When doubt exists 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.S7(2)

NOTICE TO PROTECTING NOTICE TO PROTECTING POWER SEC 8POWER SEC 8

This section requires the court before which—a prisoner of war is brought for trial for any offence in terms of this Act; or a protected internee is brought for trial for an offence for which that court has the power to sentence him or her to imprisonment for a period of two years or more, to inform his protecting power.

LEGAL REPRESENTATION LEGAL REPRESENTATION SEC 9SEC 9

The Act requires that the accused persons must represented by a legal practitioner who is qualified to appear before the court-S9(1)

Indigent accused person may qualify for legal representation at state expenses-S9(5)

APPEALS SEC 10APPEALS SEC 10

prisoner of war or a protected internee who has been convicted and sentenced to imprisonment for a period of two years or more may give notice of appeal or notice of application for leave to appeal against such conviction or sentence up to a date 10 days after the date on which the prisoner of war or protected internee concerned receives notice that the protecting power has been notified of his or her conviction and sentence.S10(1).

PROTECTED PRISONER OF PROTECTED PRISONER OF WAR IN CUSTODY SEC 11WAR IN CUSTODY SEC 11

The section allows the court before which a prisoner of war is brought for trial for any offence—to remand that protected prisoner into the custody of the South African National Defence Force;

(b) must remand that protected prisoner into the custody of the South African National Defence Force if that protected prisoner is in custody for a period of longer than three months; or

REDUCTION OF SENTENCE REDUCTION OF SENTENCE SEC 12SEC 12

Whenever a prisoner of war or a protected internee is convicted of an offence under this Act and is sentenced to imprisonment for a specified term, the period before sentence, if any, during which that prisoner of war or protected internee was in custody in connection with that offence, either on remand awaiting trial or during trial, must be deducted from that term.

USE AND PROTECTION OF USE AND PROTECTION OF EMBLEMS SEC 13EMBLEMS SEC 13

This Sec provides for the Protection of various emblems, e.g. Red Cross, Red Crescent etc. 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

OFFENCES AND PENALTIES OFFENCES AND PENALTIES SEC 14SEC 14

This Section creates offence for anyone who, without consent of the Minister, uses or displays emblems, such person is liable on conviction to a fine or imprisonment for a period not exceeding five years or both a fine and such imprisonment.

USE OF RED CROSS SANDF USE OF RED CROSS SANDF SEC 16SEC 16

Subject to the direction of the Minister, the Military Health Services of the South African National Defence Force must, 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 must wear armlets and carry identity cards issued by South African National Defence Force displaying the Red Cross.

ICRC AND OTHER ICRC AND OTHER INTERNATIONAL ORG S17INTERNATIONAL ORG S17

The International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent Societies, may make use of the Red Cross and the Red Crescent.S17(1).

COMPLETE SUMMERY OF THE COMPLETE SUMMERY OF THE BILLBILL

Clause by clause summery of the Bill:Clause 1: Definitions.Clause 2 & 3: Objects of Act and

Enactment of Conventions into law.Clause 4 & 5: Breaches of Conventions and

Penalties.Clause 6 & 7: Jurisdiction and

Determination of status.

SUMMERY BILL CONT.SUMMERY BILL CONT.

Clause 8 – 12: Legal proceedings in respect of Prisoners and Internees.

Clause 13 – 17: Use and protection of Emblems.

Clause 18 – 20: Miscellaneous (Regulations and Short Title)

THE ENDTHE END

THANK YOU

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DISCUSSIONS