The Committee gave various civil society bodies the opportunity to comment on the Implementation of the Geneva Convention Bill (the Bill). The preamble to the Bill stated that its purpose was to enact the Geneva Conventions and Protocols into law, to ensure prevention and punishment of grave breaches and other breaches of the Conventions and Protocols, and to provide for incidental matters. In essence, this Bill sought to ensure that South Africans and non-South Africans complied with all aspects of the Geneva Conventions during armed conflicts. More importantly, those responsible for breaches of the Conventions, regardless of where they occurred or by whom they were committed, would be held criminally liable.
The Institute for Security Studies (ISS) noted that clause 4(1) dealt with grave breaches of the Geneva Conventions and First Protocol, but clauses 4(3) and 4(4) provided for a more restrictive scope of application for offences committed in respect of "other breaches" of the Conventions and their two Protocols, as they needed to be committed within the Republic or by a South African citizen outside of the Republic.
The Civil Society Prison Reform Initiative (CSPRI) welcomed the criminalisation of “grave breaches”, but pointed out that there were problems of definition. The Geneva Conventions did not define the key concepts of “grave breaches”, but these definitions were contained in the Rome Statute. Some of the breaches were probably already defined in other South African legislation, but some were not, and this meant that there was lack of clarity. The example was cited of “torture”, where one definition was set out in the Rome Statute (adopted by South Africa through its adoption of the ICC Act), but a different definition had been approved by the International Criminal Tribunals for Yugoslavia and for Rwanda, based upon the definition in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). South Africa was also a party to UNCAT, and in order to domesticate UNCAT, the Department of Justice and Constitutional Development was busy drafting the Combating of Torture Bill, in which yet another definition appeared. This meant that any court in
The Southern Africa Litigation Centre (SALC) submissions focused on the ability to ensure that the offences that the Bill sought to domesticate into South African law were dealt with effectively, and that the prevention and punishment could be realised.
Implementation of Geneva Convention Bill [B10-2011]: Public submissions
Institute for Security Studies (ISS) Arms Management Programme submission
Ms Ottilia Anna Maunganidze, Researcher, Institute for Security Studies, presented the
The first comment related to clause 5, which addressed failure to prevent breaches of the Geneva Conventions. Clause 5(4) stated that, for the purposes of clause 5(1), a "military superior officer" should include a person acting as a military superior officer or a person in a superior position, including a civilian position. However, ISS felt that it would be clearer if clause 5(4) were to make reference to both clauses 5(1) and 5(3), as the term "military superior officer" was used in both.
In relation to clause 4, ISS noted that clause 4(1) provided that any person, whether within or outside the Republic, who committed a grave breach was guilty of an offence. Clauses 4(3) and 4(4) provided for a more restricted scope of application for offences committed in respect of "other breaches" of the Conventions and their two Protocols, as they needed to be committed within the Republic, or by a South African citizen outside of the Republic. In light of the provisions of South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act), the ISS recommended that clause 4(4) of the Bill should be extended to include breaches committed also by a non-South African citizen. This would make the two pieces of legislation consistent.
ISS added that section 4(3) of the International Criminal Court (ICC) Act covered criminal offences committed outside the Republic by a South African citizen, a person ordinarily resident in
Ms Maunganidze summarised that the Arms Management Programme of ISS was fully supportive of
Mr J Maake (ANC), Chairperson of the Joint Standing Committee on Defence, wanted to know what was meant by a person “ordinarily” living in
Ms Maunganidze replied that this related to people who were not South African, but who resided in the country for a set term, in terms of a work or study permit.
The Chairperson noted that such people would therefore not be South African citizens, and asked if these residents were described in a certain way.
Ms Maunganidze responded that the terminology used would depend on the immigration status of a person.
Civil Society Prison Reform Initiative submission
Ms Gwanaelle Dereymaeker, Researcher, Civil Society Prison Reform Initiative, said that her entity (CSPRI) focused on correctional centres (formerly called “prisons”) and places of confinement, with the aim of furthering constitutional and human rights imperatives within these settings. One of the CSPRI’s initiatives was the campaign to domesticate the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The CSPRI campaign sought the fulfilment of all relevant obligations under UNCAT, including the criminalisation of torture under domestic law. Its submission was motivated by this focus, and the particular significance of torture as a grave breach of the Geneva Conventions and their Additional Protocols.
The CSPRI welcomed the opportunity to comment and commended government’s willingness to enact the Geneva Conventions and their Additional Protocols, to fulfil
CSPRI noted that clauses 4(1) and 4(2) criminalised all grave breaches of the four Geneva Conventions and the two Additional Protocols. “Grave breaches” included a number of actions (see attached presentation for full details), ranging from wilful killing, torture, injury, taking of hostages, unlawful deportation, damage to property that was not justified by military necessity, compelling a person to serve in the opposing party’s armed forced, or any other act or omission that seriously endangered physical or mental health and integrity. They also included attacks against civilians, launching a general attack that was known would cause excessive loss of life, injury to civilians or damage to civilian objects, attacks against public works and installations, attacking non-defended localities and demilitarised zones, attacking someone who was unable to defend himself or herself, perfidious use of the distinctive emblem of the Red Cross, Red Crescent or Red Lion and Sun, or of other protective signs recognised by the Geneva Conventions or Protocols. In addition, transfer of parts of the occupying power’s own civilian population into occupied territory, or deportation and transfer of population from occupied territories, delays in repatriation and apartheid practices were included. Attacks against clearly recognised historic monuments, works of art or places of worship, which constituted the cultural or spiritual heritage of people, were included. Deprivation of the right to a fair and regular trial was also an offence.
CSPRI noted that the Rome Statute of the International Criminal Court (the Rome Statute) prohibited grave breaches of the Geneva Conventions through its criminalisation of war crimes. Although war crimes and grave breaches of the Geneva Conventions had a distinct history, it had been argued that the distinction between war crimes and grave breaches had become progressively blurred in international law. The Implementation of the ICC Act gave jurisdiction to South African courts to adjudicate upon violations of the Rome Statute, including war crimes and the grave breaches listed in the Rome Statute, under Articles 8(2) and 8(3). CSPRI said that there was therefore an overlap of the Bill and the ICC Act provisions.
The CSPRI submitted that any legislation purporting to domesticate the Geneva Conventions, which did not criminalise grave breaches, would not be comprehensive. CSPRI therefore welcomed the criminalisation of grave breaches in both the Bill and the ICC Act. However, it pointed out that the Geneva Conventions did not contain definitions of the key concepts necessary to the interpretation of grave breaches, but these were set out in the Rome Statute. The Bill said that anyone committing a “grave breach” would be guilty of an offence and liable to prosecution by a South African court. However, it did not actually define those “grave breaches” and, as just indicated, the Geneva Conventions and their additional Protocols did not either. Although some of the grave breaches listed in the Bill no doubt already existed in South African criminal law, some of them were not currently defined. This rendered some of the breaches vague and legally uncertain.
One specific example was the crime of torture. The South African legislature had criminalised the crime of torture through its adoption of the ICC Act, and the ICC Act had incorporated the definition of “torture” from the Rome Statute. That definition, set out in Article 7(2)(e) of the Rome Statute, defined torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture should not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”
Torture, as prohibited in the Geneva Conventions, had been interpreted by the International Criminal Tribunals for the former
-obtain information or a confession from him or her or a third person; or
-punish him or her for an act he or she or a third person has committed, or is suspected of having committed or is planning to commit; or
-intimidate or coerce him or her or a third person to do, or to refrain from doing, anything; or
for any reason based on discrimination of any kind,
but ‘torture’ does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.”
Therefore, if the current version of this Bill were adopted, a court of law called upon to rule on a violation of the Geneva Conventions would have to decide whether to apply the definition of torture set out in the Rome Statute, UNCAT or the Combating of Torture Bill (once enacted). This was a very uncertain and unwise situation. It was vital that there should be legal certainty on the definition of criminal offences.
A further problem was that individuals committing the same acts could be prosecuted under three different pieces of legislation, each containing different definitions of what appeared to be the same concept. This differential treatment was in violation of section 9(1) of the South African Constitution, which stated that everyone was equal before the law and had the right to equal protection and benefit of the law.
Furthermore, the lack of clarity would also present challenges to victims of torture, whose status would not be recognised in a consistent manner, and the differing definitions of torture could hamper their right to equal redress.
CSPRI also noted that the Independent Police Investigative Directorate Bill mandated the Independent Police Investigative Directorate to investigate allegations of torture committed by police. Again, this Bill did not contain a definition of torture, and this was equally likely to carry the same legal uncertainty.
Therefore, CSPRI respectfully submitted that the Bill should be amended to include specific definitions of the grave breaches of the Geneva Conventions and their Additional Protocols, or to refer to the specific statute or common law, where necessary and relevant.
CSPRI further noted that clauses 4(3) and 4(4) of the Bill also criminalised “all other breaches” of the Geneva Conventions and their Additional Protocols, notwithstanding the fact that those breaches had not been established as “grave breaches” by the international community or international jurisprudence. CSPRI thought that these clauses were too vague. The Geneva Conventions and their Additional Protocols contained a range of obligations, of differing nature. Some provisions were obligations lying solely on the State, while other provisions constituted individual obligations, the violations of which should not amount to a criminal offence. CSPRI was of the view that it was not prudent to elevate the violation of all those obligations to criminal offences in the South African domestic legal system.
Ms Dereymaeker cited some examples in support of the viewpoint. Article 5 of the First Geneva Convention stated that “For the protected persons who have fallen into the hands of the enemy, the present Convention shall apply until their final repatriation”. Article 24 of the same Convention provided that “Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances”. Finally, Article 39 of the same Convention read that “Under the direction of the competent military authority, the emblem shall be displayed on the flags, armlets and on all equipment employed in the Medical Service.”
Some of the obligations contained in the Geneva Conventions would be enforced by individual combatants, whilst the obligation to enforce others would rest with military superiors. The nature and extent of those obligations varied greatly, and not all should be criminalised.
She pointed out that there was an abundance of similar provisions in the Geneva Conventions and their Additional Protocols. By domesticating the entire content of the Geneva Conventions and their Additional Protocols, the Bill made the provisions into obligations incumbent upon all South Africans, particularly when they were involved in combat operations. It would be sufficient to call on the SANDF to enforce the operation of the Geneva Conventions by developing adequate regulations and standing orders, which could then be integrated into SANDF’s training. Although it was vital that the full extent of the Conventions and Protocols should be enacted, and understood as binding by SANDF, CSPRI nonetheless questioned why the violation of the provisions should be duplicated under paragraph 13, as it was already contained in Clause 3(1) of the Bill. Whilst CSPRI understood that the Bill wished to allow for prosecution of those who violated the Geneva Conventions, it believed that the current wording was confusing and could result in uneven implementation.
CSPRI welcomed the drafters’ willingness to go beyond the mere criminalisation of grave breaches, and suggested that both grave breaches and other violations of a comparably serious nature should be criminalised. This would include violations against protected persons and objects, as well as any other serious violations of the laws and customs pertaining to the conduct of hostilities that were not already addressed by clause 4(2) of the Bill. The identification of what were “comparably serious violations” should be done by the drafters, having regard to the purpose and object of the Bill. Although it would involve substantial redrafting, it would bring much-needed clarity and certainty.
CSPRI also respectfully submitted that the Bill must explicitly stipulate the sentence for all the specific violations of the Geneva Conventions, both of a grave and of a non-grave nature (as it did elsewhere), rather than requiring a court to refer to the Criminal Procedure Act (CPA) No 51 of 1977 and its Schedules. The determination of such sentences would also provide the necessary guidance to the various institutions that would be called upon to implement the Bill.
CSPRI respectfully submitted the insertion of a provision, similar to Section 2 of the ICC Act, that should state that courts applying the Bill must consider conventional and customary international law, as well as comparable foreign law. This was particularly relevant in light of the extensive jurisprudence developed by the International Criminal Tribunals for the former
In conclusion, Ms Dereymaeker again commended and supported
Ms P Daniels (ANC) asked for clarity on the apparently conflicting statements, on the one hand suggesting that
Mr J Maake (ANC) highlighted that the presenter indicated that there were discrepancies between the Geneva Convention and the UNCAT, but wanted a clearer recommendation on how to address this. He asked which of the definitions would be seen as preferable. He asked if examples could be given to support this. He also asked who would determine which Convention should be applied.
Ms Dereymaeker apologised if she had not given sufficient clarity. The Geneva Convention already set out a list of grave breaches, which were already criminalised in the South African Law, through the adoption of the ICC Act in 2002. The Bill was now attempting to go further and criminalise not only the “grave breaches” but any breaches of the Geneva Convention.
Mr J Maake (ANC) asked if this meant that some of the issues in the Convention should not be criminalised.
Ms Dereymaeker said not all violations would amount to criminal offences, and therefore recommended that the word “indictable” should be inserted in front of the word “offence”, in clauses 4(3) and (4) of the Bill. The CSPRI realised that some conduct in times of war did not amount to grave breaches.
The Chairperson asked about the impact of the criminalisation of grave breaches on the South African domestic law.
Ms Dereymaeker replied that it would mainly affect prosecutors, judges and the prosecution process.
Ms Daniels expressed her concern that the Rome Statute would be applied in the African context, pointing out that war in
The Chairperson noted that “grave breaches” were already criminalised in
The Parliamentary legal advisers clarified that “grave breaches” had been discussed extensively but “other breaches” were not clarified in the Convention.
Mr Christopher Gevers, Lecturer in Criminal Law, Faculty of Law, University of Kwazulu Natal (UKZN), said that grave breaches were typical war crimes that could be criminalised. He noted that when a prisoner was captured, the captors should notify the prisoner’s authorities about the capture. However, a failure to do so, although it was breaching the international Convention, would not generally be a criminal offence.
Mr L Mphahlele (PAC) said the Geneva Convention was too Eurocentric. He highlighted two major problems. The first related to the definition of a “child”, where he pointed out that the European definition was different from that in
Mr Mphahlele’s second concern related to the signatories to the Geneva Convention. He noted that the arrogance of European states caused Non-Statuary Forces (NSF), such as those of the African National Congress (ANC), not to be signatories to these treaties. He asked for the Conventions to be “Africanised” in the sense that they would be tailored specifically to the African situation.
The Chairperson responded that there should be a legal definition of a child. The points raised would be considered by Members.
Mr Allan Wallis, Lawyer, Southern Africa Litigation Centre, presented the submission by the Centre (SALC). The preamble to the Bill stated that its purpose was to enact the Geneva Conventions and Protocols into law, to ensure prevention and punishment of grave breaches and other breaches of the Conventions and Protocols, and to provide for incidental matters. In essence, this Bill sought to ensure that South Africans and non-South Africans complied with all aspects of the Geneva Conventions during armed conflicts. More importantly, those responsible for breaches of the Conventions, regardless of where they occurred or by whom they were committed, would be held criminally liable.
The SALC was concerned with whether
Both in South African and international law, there was a presumption against retrospective application of criminal norms. Section 35(3)(l) of the South African Constitution reflected the accepted legal principle that nobody should be held guilty of something that was not in fact criminalised, and it also provided for the right to a fair trial, which included the right “ not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted”.
This presumption against retrospectivity was applicable only in instances where a new offence was created, so any offences that were unlawful already under international law, at the time they were committed, could be prosecuted even though
The Geneva Conventions regime (at least in so far as grave breaches were concerned) formed an incontrovertible part of customary international law. There was extensive case law and academic opinion on it. The International Court of Justice (ICJ) had concluded that, in light of the broad accession to the Conventions and the fact that the denunciation clauses had never been invoked, the Conventions had become customary. Therefore the ICJ had held that the rules created under the Geneva Conventions were to be observed by all States, irrespective of whether they had ratified those Conventions, because they constituted “intransgressible principles” of international customary law.
Mr Wallis noted that the incorporation of most of the grave breaches and other breaches into the Rome Statute was also relevant. During negotiations, there was a general agreement that the definitions of crimes in the ICC Statute should reflect existing customary international law, and not create new law. The adoption of the Rome Statute had also generated additional state practices recognising grave breaches as war crimes. Although it was widely accepted that the grave breaches regime formed part of customary international law, there was still debate as to whether “other breaches” of the Conventions were also recognized under customary international law, particularly in respect of violations of Article 3 and additional Protocol II, which provided for observance of certain rules in armed conflicts that were not of an international character.
Ms P Daniels (ANC) noted that the presenters had placed emphasis on International Customary Laws, and questioned what this meant, pointing out that customs differed between different countries and regions. She wondered if there was not a danger of abusing power through those laws. She also asked if South African domestic laws had to match international laws.
Mr Gevers replied that Customary International Law was not the same as a domestic Customary Law. Customary International Law derived from a treaty, which set out shared practices.
The Chairperson indicated that all submissions would be taken into consideration by the Committee and that responses to the submissions would be given by the Department of Defence and Military Veterans.
The meeting was adjourned.
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