Geneva Conventions Bill [B10-2011]: Departmental response to public hearings

Meeting report

Departmental response to public hearings
AdvMicro Moabelo, Deputy Director: Legislation, Department of Defence, presented the departmental responses to written submissions received on the implementation of the Geneva Conventions Bill, 2011.

Institute for Security Studies (ISS)
The ISS asked that Section 5(4) should make reference to both subsections (1) and (3) for the purpose of including “military superior officer”.

The Department responded that the wording of subsection (4) did not purport to exclude subsection (3), a “military superior officer” referred to in subsection (3) was the same person referred to in subsection (1). “Military superior officer” referred to in subsection (3) was linked by offence to subsection (1). It must be noted that subsection (4) did not intend to define “military superior officer”, but it merely extended the scope of who should be considered as a “military superior officer”. However, to avoid interpretive problems and to ease reference, the department recommended to the Committee to consider revising subsection (4), that reference to “subsection (1)” be replaced by “of this section”.

The ISS suggested that jurisdiction in respect of person and offence had to be clarified. Section 4(3) and (4) provided for a more restrictive scope of application for offences committed in respect of “other breaches” of the Conventions and their additional Protocols, as they needed to be committed within the Republic or by a South African citizen outside of the Republic. It was suggested that section 4(4) of the Bill should be extended to include breaches committed by non-South African citizens in order to bring a level of consistency with the International Criminal Court (ICC) Act.

The Departments’ response was that subsection (4)’s intention was to differentiate between the citizens and non-citizens for the purpose of determining the extent of SA courts’ jurisdiction for “other breaches” of the Conventions and their Protocols. SA courts were given universal jurisdiction in respect of grave breaches and limited jurisdiction in respect of “other breaches”. It was noted that the courts were given universal jurisdiction for SA citizens and limited jurisdiction for non-citizens. The ICC Act did not differentiate between the breaches of Geneva Conventions as was the case with the Geneva Conventions (“grave breaches” and “other breaches”). The department was therefore inclined to use the provisions of the Geneva Conventions rather than the Rome Statute Act.

South African Litigation Centre (SALC)

SALC was concerned about the retrospective application of the Bill. It was now incontrovertible that the Geneva Conventions regime (at least in so far as grave breaches were concerned) formed part of customary international law. Domestication of Geneva Conventions did not create a new law, but reflected customary international law, creating a suitable domestic legislative framework in which to cater for the domestic application, administration and enforcement of the Geneva Conventions. Thus, to limit the Bill to its prospective application would be to ignore customary international law and negate the constitutional recognition and acceptance of international law in SA as affirmed by the Constitutional Court in Basson.

The Department responded that the Bill’s objective was to enact and implement the provisions of the Geneva Conventions and their additional Protocol into South African law. The Bill did not purport to recognise any customary international law offence or to deal with customary international law or to prohibit the courts in the Republic from applying customary international law when dealing with war crimes. In any event it would be difficult to decide when exactly an offence was recognised domestically or internationally as an offence under customary international law. Customary international law was the law in the Republic unless it was inconsistent with the Constitution or Act of Parliament. The Department however recommended that a new subsection (4) addressing the applicability of customary law with regard to the prosecution of war crimes be inserted in Section (6).

SALC also felt that the Bill was silent on administration. The Bill was silent on all other aspects and it was unclear how its provisions would be invoked and breaches responded to.

The Department replied that the administration of the Bill was vested in the Department of Defence. The prosecution of members of the Defence Force would be instituted and conducted in terms of the military justice system, while civilians who committed breaches of the Geneva Conventions would be prosecuted by the National Prosecuting Authority. Clause 6(2) of the Bill addressed the concerns raised about the institution of prosecution in South Africa.

SALC suggested that an interpretation clause be included in the Bill. It was suggested that a section similar to section 2 of the ICC Act be included in the Bill to ensure proper application and interpretation of the Bill.

The Department countered that it was in agreement with the proposal and would advise the Committee to consider including the clause as suggested.

SALC asked for clarity around the elevation of crimes created by the Bill. Offences created by the Bill must be afforded in section 17A of the SAPS Act. The rationale behind the elevation of the status was that if Convention breaches were considered to be priority offences they would fall within the prosecutorial mandate of the Priority Crimes Litigation Unit within the NPA. It was therefore suggested that the schedule of SAPS Act was to be amended to include offences referred to in section 4(3) and (4) of the Bill.

The Department indicated that the proposal was worthy of consideration. They had created a proposal for the consideration of the Committee in this regard.

SALC was concerned with the definition of “person” and suggested that it be broadened to include both natural and juristic persons expressly.

The Department referred to the Interpretation Act 33 of 1957 which defined the term “person” to include both natural and juristic persons.

SALC wanted recognition of indirect participation. The Bill did not include indirect participation as a mode of liability.

The Department stated that aiding, abetting and attempts were part of the South African criminal law; therefore there was no need to provide for these in the statute.

SALC said that it was not clear whether the jurisdictional limitation applicable in section 4(3) and (4) fell away when an offence contemplated in section 5 was committed. Section 4(3) and (4) limited jurisdiction with regard to the location where the offence was committed, the person committing the offence and the classification of the offence.

The Department noted that breach referred to in this section was a “grave breach” which attracted universal jurisdiction. South African courts enjoyed universal jurisdiction in respect of “grave breaches”.

SALC felt that the Geneva Convention explicitly recognised and obliged all states to ensure that perpetrators of the grave breaches were extradited or prosecuted domestically. This obligation was incorporated in the Bill, it was suggested this obligation be inserted into section 6 of the Bill.

The Department responded that the obligation was incurred by virtue of South Africa being a signatory of the Conventions and their obligation Protocols. The Bill provided for the prosecution for the contraventions of the Conventions and therefore did not seek to create additional obligation for the country.

SALC wanted more clarity on immunity from jurisdiction. The Bill did not contain any reference to either functional or personal immunity.

The Department said that the Bill intended to enact the provisions of the Geneva Conventions and their additional Protocols. The proposal that the Bill should make reference to jurisdictional immunity seemed to go beyond the scope of the Geneva Conventions and their additional Protocols. There were other laws in the country that dealt with issues of immunity, example Diplomatic Immunities and Privileges Act.

Civil Society Prison Reform Initiative (CSPRI)

The CSPRI felt that there was a lack in definition of ‘grave breach’. The Bill did not define the term “grave breach”.

The Department replied that the Bill was drafted in such a way that it did not conflict with the Geneva Conventions and their additional protocols. The Conventions did not define “grave breach” nor “other breaches” but merely described what constituted a “grave breach”. It was the Departments’ submission that a description of what constituted a “grave breach” as indicated in the Bill was sufficient.

Discussion
Ms P Daniels (ANC) agreed with the ISS proposal that section 5(4) had to be changed to make reference to both subsections (1) and (3) for the purpose of including “military superior officer”. If the Department wanted to prioritise offences the South African Police Service (SAPS) Act had to include these crimes.

Mr Gideon Hoon, State Law Advisor, Office of the Chief State Law Advisor, replied that the Criminal Procedures Act already outlined the classification of crimes.

Mr A Maziya (ANC) asked whether the Bill had the authority to prescribe to another department to amend its Acts as the Geneva Convention Bill indicated that the SAPS Act had to be amended.

Mr Moabelo replied that if the SAPS Act had to amend its schedules the department had to consult with the Department of Police and SAPS first regarding this matter.

Mr D Maynier (DA) noted that the CSPRI had submitted four issues but only one was covered in the departmental responses.

Mr Hoon replied that the submissions by the CSPRI were of a similar nature to the submissions by other parties and therefore the department did not need to respond as it would have caused a repetition.

The Chairperson asked whether grave breaches had to be explained as priority crimes in the Bill.

Mr Moabelo replied that no it was already covered as the nature of the Convention considered these grave breaches as priority crimes.

The meeting was adjourned.