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South Africa’s new power to act against war criminals

21-08-2012 Feature

How does South Africa's new Implementation of the Geneva Conventions Act pave the way for the country to hold those accused of committing war crimes liable for their actions? On the occasion of the 63rd anniversary of the Geneva Conventions, the ICRC regional legal adviser in Pretoria, Sarah Swart, discusses the issue.

On 12 August 1949, 63 years ago today, 63 States met in Geneva to revise and agree on four Geneva Conventions dedicated to providing protection in times of armed conflict for the sick and wounded, the shipwrecked, prisoners of war and civilians. The conventions were supplemented by two additional protocols in 1977 and by a further additional protocol in 2005, culminating in a body of law regulating the means and methods of warfare as well as the treatment of those not, or no longer, participating in hostilities. More than six decades since the adoption of these important instruments, they remain as relevant as ever as a means of limiting the human suffering that inevitably takes place during times of conflict.

Today, as we look back to the historic adoption of these comprehensive treaties, we also celebrate South Africa's recent adoption of its own Implementation of the Geneva Conventions Act, which was assented to by the president on 11 July 2012. South Africa ratified the 1949 Geneva Conventions in 1952, and their 1977 Additional Protocols in 1995, and last month took the fundamental step of incorporating these instruments in its own legal system. In 1980 Oliver Tambo signed a declaration in Geneva affirming the ANC’s adherence to the Geneva Conventions and Additional Protocol I. Now, more than three decades later, Mr Tambo's recognition of the importance of these instruments has been confirmed by the adoption of the country's own Geneva Conventions act.

But what does the adoption of this act mean for South Africa? The act creates offences for breaches of the conventions and protocols, including war crimes. In essence, the Implementation of the Geneva Conventions Act provides South Africa with a legal basis for courts to prosecute individuals accused of committing war crimes, regardless of the nationality of those accused or of the victims, and regardless of where the alleged crime may have taken place. The act makes it possible for South Africa to cast a net over individuals at all levels who have ordered or committed war crimes.

While the 2002 Implementation of the Rome Statute of the International Criminal Court Act already enables South Africa to investigate and prosecute international crimes, including war crimes, the Implementation of the Geneva Conventions Act goes a step further by creating additional offences and by extending the jurisdiction of South African courts beyond what is provided for under the Rome Statute act. Together, these two pieces of legislation provide South Africa with a firm foundation for investigating and prosecuting war criminals.

By enacting the Geneva Conventions and their Additional Protocols into domestic law, South Africa joins the ranks of African countries that have reaffirmed the importance of States being in a position to try war criminals domestically. This ability complements the powers of other criminal justice bodies, such as the International Criminal Tribunal for Rwanda and the International Criminal Court.

Although the nature of armed conflict has changed over the past few decades, the principles enshrined in the Geneva Conventions remain as relevant today as they were 63 years ago. The fact that every recognized State is party to the Geneva Conventions – including South Sudan, the world's newest country, which acceded to them in July 2012 – shows the importance placed on the conventions by the international community. In addition, over 160 States are party to each of the 1977 Additional Protocols.

This week the ICRC and South Africa's Department of International Relations and Cooperation will co-host the 12th annual Regional Seminar on International Humanitarian Law, which will bring together representatives of 18 governments in the region. Among the issues to be discussed will be the incorporation of provisions of the Geneva Conventions and their Additional Protocols in domestic legislation as a means of suppressing war crimes.

Over the past 60 years, the Geneva Conventions have enabled countless lives to be saved, allowed thousands of separated family members to be reunited and provided comfort for millions of prisoners of war. How the Implementation of the Geneva Conventions Act will be applied in practice remains to be seen, but its adoption clearly demonstrates South Africa's commitment to the spirit and principles of international humanitarian law and to fulfilling its obligations under that body of law.