Equipo Nizkor - South Africa: Implementation of the Geneva Conventions Act, 2012.

THE PRESIDENCY
No. 536 12 July 2012

It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–

No. 8 of 2012:

(English text signed by the President)
(Assented to 11 July 2012)

ACT
To enact the Geneva Conventions and Protocols additional to those Conventions into law; to ensure prevention and punishment of grave breaches and other breaches of the Conventions and Protocols; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:–

ARRANGEMENT OF SECTIONS

Section

1. Definitions

CHAPTER 1
OBJECTS OF ACT AND ENACTMENT OF CONVENTIONS INTO LAW

2. Objects of Act
3. Applicable law
4. Enactment of Conventions into law

CHAPTER 2
BREACHES OF CONVENTIONS

5. Breach of Conventions and penalties
6. Failure to prevent breaches of Conventions

CHAPTER 3
JURISDICTION AND STATUS

7. Jurisdiction
8. Determination of status

CHAPTER 4
LEGAL PROCEEDINGS

9. Notice to protecting power
10. Legal representation
11. Appeals by protected prisoners of war and protected internees
12. Protected prisoners of war in custody
13. Reduction of sentence

CHAPTER 5
USE AND PROTECTION OF EMBLEMS

14. Protection of flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia and uniforms
15. Offences and penalties
16. Seizure of certain articles or things
17. Use of Red Cross by South African National Defence Force
18. International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent Societies

CHAPTER 6
GENERAL PROVISIONS

19. Regulations
20. Effect of Act on Implementation of the Rome Statute of the International Criminal Court Act, 2002
21. Short title and commencement

SCHEDULE 1
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (First Convention)

SCHEDULE 2
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Second Convention)

SCHEDULE 3
Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (Third Convention)

SCHEDULE 4
Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Fourth Convention)

SCHEDULE 5
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977

SCHEDULE 6
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977

Definitions

1. In this Act, unless the context indicates otherwise–

"Constitution" means the Constitution of the Republic of South Africa, 1996;

"Conventions" means the First Convention, the Second Convention, the Third Convention, the Fourth Convention, Protocol I and Protocol II;

"court"–

(a) means a provincial division of the High Court or a court of similar status; and

(b) in the case of a member of the South African National Defence Force who contravenes or fails to comply with this Act while in service or on duty, includes a military court contemplated in section 1 of the Military Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999), but excludes an Officer Commanding disciplinary hearing;

"First Convention" means the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted at Geneva on 12 August 1949, which is set out in Schedule 1 and was signed by the Republic on 12 August 1949 and ratified by the Republic on 31 March 1952;

"Fourth Convention" means the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted at Geneva on 12 August 1949, which is set out in Schedule 4 and was signed by the Republic on 12 August 1949 and ratified by the Republic on 31 March 1952;

"Minister" means the Minister of Defence and Military Veterans;

"National Director of Public Prosecutions" means the person contemplated in section 179 (1)(a) of the Constitution and appointed in terms of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

"prisoners' representative", in relation to a particular protected prisoner of war, means the person by whom the functions of prisoners' representative within the meaning of Article 79 of the Third Convention were exercisable in relation to that prisoner at the camp or place at which that prisoner was, at or last before that time, detained as a prisoner of war;

"protected internee" means a person who is interned in the Republic and who is protected by the Fourth Convention;

"protected prisoner of war" means a person protected by the Third Convention or a person who is protected as a prisoner of war under Protocol I;

"protecting power", in relation to a protected prisoner of war or a protected internee, means the power or organisation which is carrying out, in the interests of the power of which he or she is a national, or of whose forces he or she is, or was at any material time, a member, the duties assigned to protecting powers under the Third Convention or Protocol I, as the case may be;

"Protocol I" means the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted at Geneva on 10 June 1977, which is set out in Schedule 5 and was signed by the Republic on 8 June 1977 and ratified by the Republic on 21 November 1995;

"Protocol II" means the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, adopted at Geneva on 8 June 1977, which is set out in Schedule 6 and was signed by the Republic on 8 June 1977 and ratified by the Republic on 21 November 1995;

"Second Convention" means the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted at Geneva on 12 August 1949, which is set out in Schedule 2 and was signed by the Republic on 12 August 1949 and ratified by the Republic on 31 March 1952;

"South African Red Cross Society Act" means the South African Red Cross Society and Legal Protection of Certain Emblems Act, 2007 (Act No. 10 of 2007);

"Third Convention" means the Geneva Convention Relative to the Treatment of Prisoners of War, adopted at Geneva on 12 August 1949, which is set out in Schedule 3 and was signed by the Republic on 12 August 1949 and ratified by the Republic on 31 March 1952;

"this Act" includes any regulation made in terms of section 19.

CHAPTER 1
OBJECTS OF ACT AND ENACTMENT OF CONVENTIONS INTO LAW

Objects of Act

2. The objects of this Act 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

Applicable law

3. In addition to the Constitution and the law, any court in the Republic hearing any matter arising from the application of this Act must also consider and, where, appropriate, may apply–

(a) conventional international law;

(b) customary international law; and

Enactment of Conventions into law

4. (1) Subject to the Constitution and this Act, the Conventions have the force of law in the Republic.

(2) The Minister may by notice in the Gazette amend any of the Conventions to reflect any changes made to the Convention in question if those changes are binding on the Republic in terms of section 231 of the Constitution.

CHAPTER 2
BREACHES OF CONVENTIONS

Breach of Conventions and penalties

5. (1) Any person who, whether within or outside the Republic, commits a grave breach of the Conventions, is guilty of an offence.

(2) For the purposes of subsection (1), "a grave breach" means–

(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;

(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.

(3) Any person who within the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.

(4) Any citizen of the Republic who outside the Republic contravenes or fails to comply with a provision of the Conventions not covered by subsection (2), is guilty of an offence.

(5) Aperson 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.

Failure to prevent breaches of Conventions

6. (1) A military superior officer is guilty of an offence if–

(a) forces under his or her effective command, authority and control, whether within or outside the borders of the Republic, commit a grave breach contemplated in section 5(1) or commit an offence contemplated in section 5(3) or (4);

(b) he or she knew, or in the circumstances ought to have reasonably known, that the forces contemplated in paragraph (a) were committing such a grave breach or offence; and

(i) to exercise effective command, authority and control over the forces contemplated in paragraph (a);

(ii) to take all necessary and reasonable measures within his or her power to prevent or repress the commission of any breach or offence contemplated in paragraph (a);or

(iii) to submit the commission of the breach or offence contemplated in paragraph (a) to the competent authorities for investigation and prosecution.

(2) Any person, whether within or outside the borders of the Republic, who fails to act when under a duty to do so in order to prevent the commission of a grave breach contemplated in section 5(1) or an offence contemplated in section 5(3) or (4) by any other person, is guilty of an offence.

(3) A military superior officer convicted of an offence in terms of subsection (1) or a person convicted of an offence in terms of subsection (2), is liable to a fine or to imprisonment, including imprisonment for life, or to such imprisonment without the optionofa fine or to both a fine and such imprisonment.

(4) For the purposes of this section, a "military superior officer" includes any person–

(a) acting as a military superior officer; or

(b) in a superior position, including a civilian position, in relation to those forces.

CHAPTER 3
JURISDICTION AND STATUS

Jurisdiction

7. (1) Any court in the Republic may try a person for any offence under this Act in the same manner as if the offence had been committed in the area of jurisdiction of that court, notwithstanding that the act or omission to which the charge relates was committed outside the Republic.

(2) The Cabinet member responsible for the administration of justice must, in consultation with the Chief Justice of South Africa and after consultation with the National Director of Public Prosecutions, in writing designate an appropriate Court to try a person contemplated in subsection (1).

(3) Whenever this Act is enforced outside the Republic, any finding, sentence, penalty, fine or order made, pronounced or imposed in terms of its provisions is as valid and effectual, and must be carried into effect, as if it had been made, pronounced or imposed in the Republic.

(4) Nothing in this Act must be construed as precluding the prosecution of any person accused of having committed a breach under customary international law before this Act took effect.

Determination of status

8. (1) 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 protected prisoner of war or protected internee.

(2) When doubt exists as to whether or not a person charged with an offence in terms of this Act is a protected 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 ofprotected prisoner of war or protected internee.

CHAPTER 4
LEGAL PROCEEDINGS

Notice to protecting power

9. (1) The court before which–

(a) a protected prisoner of war is brought to trial for any offence in terms of this Act; or

(b) a protected internee is brought to 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,

may not proceed with the trial until the court is satisfied that a notice containing the particulars contemplated in subsection (2), in so far as they are known to the prosecutor, has been served not less than three weeks before the commencement of the trial on the protecting power and, if the accused is a protected prisoner of war, on the accused and the prisoners' representative.

(2) The particulars referred to in subsection (1) are as follows:

(a) The full name, date of birth and description of the accused, including his or her profession or trade;

(b) if the accused is a protected prisoner of war, his or her rank and force of origin, regimental, personal or serial number;

(d) the offence with which the accused is charged; and

(e) the court before which the trial is to take place and the time and place appointed for the trial.

(3) For the purposes of subsection (1), a document purporting to be–

(a) signed on behalf of the protecting power or by the prisoners' representative or by the accused person, as the case may be; and

(b) an acknowledgement of the receipt by that power, representative or person on a specified day of a notice described therein as a notice under this section,

is, in the absence of evidence to the contrary, sufficient evidence that the notice required by subsection (1) was served on that power, representative orperson, as the case may be, on that day.

(4)A court that adjourns a trial in order that the requirements of this section could be complied with, may, notwithstanding anything to the contrary contained in any other law, remand the accused person in custody for the period of the adjournment.

Legal representation

10. (1) (a) Subject to subsections (2) and (3), the court before which a person is brought for trial for an offence contemplated in section 5(1), (3) or (4) may not proceed with the trial unless–

(i) the accused person is represented by a legal practitioner who is qualified to appear before the court; and

(ii) the court is satisfied that a period of not less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to the legal practitioner who is representing the accused. (b) If the court adjourns the trial for the purposes of enabling the requirements of this subsection to be complied with, then, notwithstanding anything to the contrary in any other law, the court may remand the accused person in custody for the period of the adjournment.

(2) Every person contemplated in subsection (1) has the right to legal representation of his or her own choice at his or her own expense, or to be assigned a legal practitioner at state expense when he or she is to appear or to be tried by a court.

(3) Where the accused person is a protected prisoner of war and in the absence of a legal practitioner accepted by the accused as representing him or her, a legal practitioner instructed by or on behalf of the protecting power must, without prejudice to the requirements of subsection (1)(a)(ii), be regarded for the purposes of that subsection as representing the accused person.

(4) Where the court adjourns a trial in terms of subsection (1) by reason that the accused person is not represented by a legal practitioner, the court must direct that a legal practitioner be assigned to watch over the interests of the accused person at any further proceedings, in the absence of a legal practitioner accepted by the accused as representing him or her or instructed in accordance with subsection (3), and a legal practitioner assigned in terms of this subsection must, without prejudice to the requirements of subsection (1)(a)(ii), be regarded for the purposes of that subsection as representing the accused person.

(5) The Legal Aid Act, 1969 (Act No. 22 of 1969), subject to the changes required by the context, applies in relation to the manner in which a legal practitioner is to be assigned to an accused person in terms of this section and in relation to the remuneration to be paid to such legal practitioner on the completion of his or her duties.

Appeals by protected prisoners of war and protected internees

11. (1) (a) Notwithstanding anything to the contrary in any other law contained, a protected 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 protected prisoner of war or protected internee concerned receives notice that the protecting power has been notified of his or her conviction and sentence.

(b) The notice referred to in paragraph (a) must be given–

(i) in the case of a protected prisoner of war, by an officer of the South African National Defence Force; or

(ii) in the case of a protected internee, by or on behalf of the head of the correctional centre in which the protected internee is detained.

(2) Notwithstanding anything to the contrary in any other law contained, where, after an appeal against the conviction or sentence by a court of a protected prisoner of war or a protected internee has been determined, the sentence remains or has become a sentence of imprisonment for a period of two years or more, the time allowed within which the protected prisoner of war or protected internee concerned must apply to the court for a certificate authorising an appeal in respect of the conviction or sentence as confirmed or varied upon the appeal contemplated in subsection (1) must be regarded as continuing to run until a date seven days after the date on which the protected prisoner of war or protected internee concerned receives a notice given by a person contemplated in subsection (1)(b)(i) or (ii), as the case may be, that the protecting power has been notified of the outcome of the decision on appeal.

(3) Where subsection (1) or (2) applies in relation to a convicted protected prisoner of war or protected internee, then, unless the court orders otherwise, an order of the court relating to the restitution of property or the payment of compensation to an aggrieved person may not take effect, and a provision of a law relating to the re-vesting of property on conviction may not take effect in relation to the conviction, while an appeal by the convicted protected prisoner of war or protected internee against his or her conviction or sentence is possible.

(4) Subsections (1) and (2) do not apply in relation to an appeal against a conviction or sentence, or against the decision of a court upon a previous appeal, if, at the time of the conviction or sentence, or of the decision of the court upon the previous appeal, as the case may be, there is no protecting power.

Protected prisoners of war in custody

12. (1) The court before which a protected prisoner of war is brought for trial for any offence–

(a) may 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

(c) must order the protected prisoner to remain in custody of the South African National Defence Force if the prisoner is acquitted in order to ensure that such prisoner does not forfeit his or her rights in terms of the Third Convention, the Fourth Convention or Protocol I.

(2) A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the Third Convention or the Fourth Convention, as the case may be.

Reduction of sentence

13. (1) Whenever a protected 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 protected 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.

(2) For the purposes of subsection (1), deprivation of liberty of a protected prisoner of war or a protected internee required by his or her status as protected prisoner of war or protected internee must not be deducted from the term contemplated in that subsection.

CHAPTER 5
USE AND PROTECTION OF EMBLEMS

Protection of flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia and uniforms

14. (1) Subject to Part 3 of the South African Red Cross Society Act, no person may, without the consent of the Minister, use or display for any purpose whatsoever any of the following:

(a) The "red cross" contemplated in section 1 of the South African Red Cross Society Act;

(b) the "red crescent" contemplated in section 1 of the South African Red Cross Society Act;

(c) the emblem in red on, and completely surrounded by, a white ground, that is to say, a lion passing from right to left of, and with its face turned towards, the observer, holding erect in its raised right forepaw a scimitar, with, appearing above the lion's back, the upper half of the sun shooting forth rays, or the designation "Red Lion and Sun";

(d) the emblem of a white or silver cross with vertical and horizontal arms of the same length on, and completely surrounded by, a red ground, being the heraldic emblem of the Swiss Confederation;

(e) the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence;

(f) any of the distinctive signals specified in Chapter III of Annex I to Protocol I, being the signals of identification for medical units and transports;

(g) the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces;

(h) the distinctive emblem of protection of cultural property, namely a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle);

(i) a design, wording or signal so nearly resembling any of the emblems, designations, signs or signals specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) as to be capable of being mistaken for or understood as referring to one of those emblems, designations, signs or signals, as the case may be; and

(j) such other flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia or uniforms as may be prescribed by regulation by the Minister for the purposes of giving effect to the Conventions.

(2) The Minister must give the consent contemplated in subsection (1) in writing and may only give such consent for the purposes of giving effect to the provisions of this Act, the South African Red Cross Society Act and the Conventions.

(3) Section 8 of the South African Red Cross Society Act applies to the Minister with the changes required by the context in respect of any flag, emblem, designation, sign, signal, design, wording, identity card, information card, insignia or uniform contemplated in subsection (l)(c) to (j).

(4) This section also applies to the use outside the Republic of an emblem, designation, sign, signal, design, wording, identity card, identification cards, insignia or uniform contemplated in subsection (1) on any ship or aircraft registered in the Republic.

Offences and penalties

15. (1) Any person who contravenes or fails to comply with section 14 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

(2) (a) When an offence contemplated in subsection (1) has been committed for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or member of the management of the corporate body and who knew of or could have prevented the commission of the offence, is guilty of the said offence, either jointly with the corporate body or apart therefrom, and on conviction liable to the punishment provided for in that subsection.

(b) Section 332 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), with the exception of subsections (2)(c), (5), (7), (8) and (9) thereof, applies with the changes required by the context in respect of any prosecution of a corporate body or director or member of the management thereof for an offence contemplated in this section.

Seizure of certain article or thing

16. The State may seize any article or thing used in contravention of this Act, and Chapter 2 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), applies with the changes required by the context in respect of any such article or thing.

Use of Red Cross by South African National Defence Force

17. (1) 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 to mark its medical personnel, medical units and transports on the ground, at sea and in the air, and all other equipment in its use.

(2) 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.

(3) The Minister may request the National Society referred to in section 2 of the South African Red Cross Society Act to place medical personnel and resources at the disposal of the Military Health Services of the South African National Defence Force.

(4) The medical personnel and resources contemplated in subsection (3) are subject to military laws and regulations and may be authorised by the Minister of Defence to display the Red Cross as a protective device.

International Committee of the Red Cross and International Federation of the Red Cross and Red Crescent Societies

18. (1) The International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent Societies may make use of the emblems contemplated in section 14(1)(a) and (b) at any time and for all their activities.

(2) (a) The International Committee ofthe Red Cross and the International Federation of the Red Cross and Red Crescent Societies, and their duly authorised personnel, may make use of the red crystal to facilitate their work if there is sufficient reason for such use.

(b) For the purposes of paragraph (a) the red crystal means the emblem in red on, and completely surrounded by, a white ground, that is to say, a red frame in the shape ofa square on edge (whether or not incorporating within its centre another emblem or sign or combination thereof in accordance with Article 3, paragraph 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), done at Geneva on 8 December 2005), or the designation "Red Crystal", or the designation "third Protocol emblem".

CHAPTER 6
GENERAL PROVISIONS

Regulations

19. The Minister may make regulations regarding any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of this Act.

Effect of Act on Implementation of the Rome Statute of the International Criminal Court Act, 2002

20. 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.

Short title and commencement

21. This Act is called the Implementation of the Geneva Conventions Act, 2012, and comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULES

(Section 1)

SCHEDULE 1

Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field of 12 August 1949

SCHEDULE 2

Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea of 12 August 1949

SCHEDULE 3

Geneva Convention relative to the treatment of prisoners of war of 12 August 1949

SCHEDULE 4

Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949

SCHEDULE 5

Protocol I
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I),
Of 8 June 1977

SCHEDULE 6

Protocol II
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II),
Of 8 June 1977

11Jul12 - ZAF

Implementation of the Geneva Conventions Act, 2012

[Source: Government Gazette, No. 35513, Vol. 565, Cape Town, South Africa, 12 July 2012]

Legislation
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