GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27, 1991
GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - LONG TITLE
An Act to amend the Geneva Conventions Act 1957 GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 1 Short title etc.
(Assented to 4 March 1991) 1. (1) This Act may be cited as the Geneva Conventions Amendment Act 1991. (2) The Geneva Conventions Act 1957*1* is in this Act referred to as the Principal Act. (Minister's second reading speech made in- House of Representatives 12 February 1991 Senate on 19 February 1991) *1* No. 103, 1957, as amended. For previous amendments, see No. 93, 1966; No. 216, 1973; No. 37, 1976; No. 153, 1982; and No. 114, 1983. GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 2 Commencement
2. (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 3 Title
3. The title of the Principal Act is amended by omitting "the twelfth day of August, One Thousand nine hundred and forty-nine," and substituting "12 August 1949 and to a Protocol additional to those Conventions done at Geneva on 10 June 1977,". GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 4 Interpretation
4. Section 5 of the Principal Act is amended: (a) by inserting after subsection (1) the following subsection: "(1A) In this Act: '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 (Protocol I), done at Geneva on 10 June 1977, a copy of the English text of which is set out in Schedule 5."; (b) by adding at the end of the definition of "protected prisoner of war" in subsection (2) "or a person who is a prisoner of war for the purposes of Protocol I"; (c) by omitting "or the Fourth Convention" from the definition of "the protecting power" in subsection (2) and substituting ", the Fourth Convention or Protocol I"; (d) by omitting from subsection (3) "Conventions" and "Convention" and substituting "Conventions or of Protocol I" and "Convention or that Protocol" respectively. GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 5 Punishment of grave breaches of Conventions and Protocol I
5. Section 7 of the Principal Act is amended: (a) by inserting in subsection (1) "or of Protocol I" after "Conventions"; (b) by omitting from paragraph (2) (c) "and"; (c) by adding at the end of subsection (2) the following word and paragraph: "; and (e) a grave breach of Protocol I is a breach of that Protocol involving: (i) an act or omission referred to in paragraph 4 of Article 11 of that Protocol; or (ii) an act referred to in paragraph 2 of Article 85 of that Protocol committed against persons or property referred to in that paragraph; or (iii) an act referred to in paragraph 3 of Article 85 of that Protocol; or (iv) an act referred to in paragraph 4 of Article 85 of that Protocol."; (d) by inserting in paragraph (4) (a) "or by Protocol I" after "Convention". GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 6
6. Section 8 of the Principal Act is repealed and the following section is substituted: Proof of application of Convention or Protocol "8. If, in proceedings under this Part in respect of a grave breach of any of the Conventions or of Protocol I, a question arises under: (a) Article 2 of that Convention (which relates to the circumstances in which the Convention applies); or (b) Article 1 of that Protocol (which relates to the circumstances in which the Protocol applies); a certificate under the hand of the Minister of State for Foreign Affairs and Trade certifying to any matter relevant to that question is prima facie evidence of the matter so certified.". GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 7
7. Before section 11 of the Principal Act the following section is inserted in Part III:
Back to Top
Court may determine whether person is a protected prisoner of war "10A. (1) A person referred to in paragraph 1 or 2 of Article 45 of Protocol I may apply to the Supreme Court of the State or Territory in which the person is held in custody for a declaration that he or she has the status of a protected prisoner of war. "(2) The jurisdiction of a Court for the purposes of this section is constituted by a single Judge. "(3) Subject to subsection (4), the jurisdiction of the Court is to be exercised in open court. "(4) The Court may order the exclusion of the public or persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or those persons, as the case may be, would be contrary to the interests of justice or would not be in the public interest.". GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 8 Use of Red Cross and other emblems, signs, signals, identity cards, insignia and uniforms
8. Section 15 of the Principal Act is amended: (a) by inserting after paragraph (1) (e) the following paragraph: "(f) such other emblems, identity cards, signs, signals, insignia or uniforms as are prescribed for the purpose of giving effect to Protocol I."; (b) by omitting from subsection (1) "One hundred dollars" and substituting "$1,000"; (c) by adding at the end of subsection (2) "or of Protocol I". GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 9 Schedule 5
9. The Principal Act is amended by adding at the end the Schedule set out in Schedule 1 to this Act. GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SECT 10 Formal amendments
10. The Principal Act is amended as set out in Schedule 2. GENEVA CONVENTIONS AMENDMENT ACT 1991 No. 27 of 1991 - SCHEDULE 1
SCHEDULE 1 Section 9 "SCHEDULE 5 Section 5 PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I) PREAMBLE The High Contracting Parties, Proclaiming their earnest wish to see peace prevail among peoples, Recalling that every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations, Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application, Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict, Have agreed on the following: PART I GENERAL PROVISIONS Article 1 - General principles and scope of application 1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances. 2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 3. This Protocol, which supplements the Geneva Conventions of 4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Article 2 - Definitions For the purposes of this Protocol:
Back to Top
(a) "First Convention", "Second Convention", "Third Convention" and "Fourth Convention" mean, respectively, the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949; the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949; the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949; the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949; "the Conventions" means the four Geneva Conventions of 12 August 1949 for the protection of war victims; (b) "rules of international law applicable in armed conflict" means the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict; (c) "Protecting Power" means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol; (d) "substitute" means an organization acting in place of a Protecting Power in accordance with Article 5. Article 3 - Beginning and end of application Without prejudice to the provisions which are applicable at all times: (a) the Conventions and this Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol; (b) the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter. These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment. Article 4 - Legal status of the Parties to the conflict The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question. Article 5 - Appointment of Protecting Powers and of their substitute 1. It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the parties to the conflict. 2. From the beginning of a situation referred to in Article 1, each Party to the conflict shall without delay designate a Protecting Power for the purpose of applying the Conventions and this Protocol and shall, likewise without delay and for the same purpose, permit the activities of a Protecting Power which has been accepted by it as such after designation by the adverse Party. 3. If a Protecting Power has not been designated or accepted from the beginning of a situation referred to in Article 1, the International Committee of the Red Cross, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent. For that purpose it may, inter alia, ask each Party to provide it with a list of at least five States which that Party considers acceptable to act as Protecting Power on its behalf in relation to an adverse Party, and ask each adverse Party to provide a list of at least five States which it would accept as the Protecting Power of the first Party; these lists shall be communicated to the Committee within two weeks after the receipt of the request; it shall compare them and seek the agreement of any proposed State named on both lists. 4. If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute. The functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall be made by the Parties to the conflict to facilitate the operations of the
Back to Top
substitute in the performance of its tasks under the Conventions and this Protocol. 5. In accordance with Article 4, the designation and acceptance of Protecting Powers for the purpose of applying the Conventions and this Protocol shall not affect the legal status of the Parties to the conflict or of any territory, including occupied territory. 6. The maintenance of diplomatic relations between Parties to the conflict or the entrusting of the protection of a Party's interests and those of its nationals to a third State in accordance with the rules of international law relating to diplomatic relations is no obstacle to the designation of Protecting Powers for the purpose of applying the Conventions and this Protocol. 7. Any subsequent mention in this Protocol of a Protecting Power includes also a substitute. Article 6 - Qualified persons 1. The High Contracting Parties shall, also in peacetime, endeavour, with the assistance of the national Red Cross (Red Crescent, Red Lion and Sun) Societies, to train qualified personnel to facilitate the application of the Conventions and of this Protocol, and in particular the activities of the Protecting Powers. 2. The recruitment and training of such personnel are within domestic jurisdiction. 3. The International Committee of the Red Cross shall hold at the disposal of the High Contracting Parties the lists of persons so trained which the High Contracting Parties may have established and may have transmitted to it for that purpose. 4. The conditions governing the employment of such personnel outside the national territory shall, in each case, be the subject of special agreements between the Parties concerned. Article 7 - Meetings The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said parties, to consider general problems concerning the application of the Conventions and of the Protocol. PART II WOUNDED, SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 8 - Terminology For the purposes of this Protocol: (a) "wounded" and "sick" mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility; (b) "shipwrecked" means persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility. These persons, provided that they continue to refrain from any act of hostility, shall continue to be considered shipwrecked during their rescue until they acquire another status under the Conventions or this Protocol; (c) "medical personnel" means those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under sub-paragraph (e) or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term includes: (i) medical personnel of a Party to the conflict, whether military or civilian, including those described in the First and Second Conventions, and those assigned to civil defence organizations; (ii) medical personnel of national Red Cross (Red Crescent,