AN ACT TO GIVE EFFECT TO THE FIRST, SECOND, THIRD AND FOURTH GENEVA CONVENTIONS ON ARMED CONFLICT AND HUMANITARIAN LAW; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO
WHEREAS Sri Lanka is a State Party to the First, Second, Third and Fourth Geneva Conventions relating to Armed Conflict and Humanitarian Law having ratified the said Geneva Conventions on February 28, 1959 :
AND WHEREAS the aforesaid Geneva Conventions have entered into force in respect of Sri Lanka on February 28, 1959 :
AND WHEREAS it has become necessary to make legislative provision to give effect to Sri Lanka's obligations under the aforesaid Geneva Conventions :
NOW THEREFORE be it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :-
, 2006 ]
Short title and date of operation.
(1) This Act may be cited as the Geneva Conventions Act, No 4 of 2006 and shall come into operation on such date as the Minister may by Order published in the Gazette appoint (hereinafter referred to as the "appointed date").
(2) Different dates may be appointed for the different Parts of the Act to come into operation.
Grave breaches of Conventions to be offences.
(1) Any person, whether a citizen of Sri Lanka or not, who within or outside Sri Lanka -
(a) commits or attempts to commit; or
(b) aids, abets, conspires or procures the commission by any other person of,
a grave breach in terms of the relevant Articles of the Conventions as are set out in Schedule I, Schedule II, Schedule III and Schedule IV to this Act and are also enumerated in subsection (2) of this section, shall be guilty of an offence.
(2) For the purposes of subsection (1)-
(a) a grave breach of the First Convention is a breach of that Convention involving an act referred to in Article 50 of that Convention committed against persons or property protected by that Convention;
(b) a grave breach of the Second Convention is a breach of that Convention involving an act referred to in Article 51 of that Convention committed against person or property protected by that Convention ;
(c) a grave breach of the Third Convention is a breach of that Convention involving an act referred to in Article 130 of that Convention committed against persons or property protected by that Convention ; and
(d) a grave breach of the Fourth Convention is a breach of that Convention involving an act referred to in Article 147 of that Convention committed against persons or property protected by that Convention.
(3) For the purposes of this section "aids", "abets", "conspires" and "procures" shall have the same meaning as is assigned to them in the Penal Code (Chapter 19).
(4) Any person convicted of an offence under this section shall-
(a) where the offence involves the wilful killing of a person protected by any of the aforesaid Conventions, be punished with death; and
(b) for any other offence, be punished with imprisonment of either description for a term which shall not exceed twenty years.
Attorney-General to file indictment.
3. Subject to the provisions of section 6, every prosecution for an offence in terms of section 2 shall be by way of direct indictment filed by the Attorney-General.
High Court to have jurisdiction to try offences.
(1) Every offence under this Act shall be triable by the High Court established under Article 154P of the Constitution for the Western Province, holden in Colombo.
(2) Every offence under this Act shall be a congnizable offence and a non-bailable offence within the meaning and for the purposes of the Code of Criminal Procedure Act, No. 15 of 1979.
(3) A person referred to in Article 5 of the Third Convention may apply to the High Court for a declaration that he has the status of a protected prisoner or war.
(4) The High Court may, where it is satisfied that the presence of the public or any other person specified by Court, as the case may be, would be contrary to the interests of justice or would not be in the public interest, order the exclusion from any sitting of the Court, the public or any person specified by the Court.
Proof of application of Convention.
5. Where in the course of any proceedings under this Act in respect of a grave breach of any of the Conventions a question arises under section 2 of this Act relating to the circumstances in which that Convention applies in relation to the aforesaid breach, a Certificate under the hand of the Secretary to the Ministry of the Minister in charge of the subject of Foreign Affairs stating that a Convention applies in relation to a particular situation, shall be admissible in evidence and shall be prima facie evidence of such fact.
Status of Court Martial proceedings in relation to this Act.
6. The provisions of the Army Act (Chapter 357), the Navy Act (Chapter 358) and the Air Force Act (Chapter 359), relating to the trial by a Court Martial in terms of the provisions of the aforesaid Acts of persons who commit civil offences, shall, for the purposes of jurisdiction of courts martial convened in Sri Lanka under any of the aforesaid Acts, continue to apply in the same manner as provided for in the respective Acts, as if the provisions of this Act had not been enacted.
LEGAL PROCEEDINGS IN RESPECT OF PROTECTED PERSONS
Service of notice of trial of protected persons on protecting power &c,.
(1) The Court before which -
(a) a protected prisoner of war is brought up for trial for any offence under this Act; or
(b) a protected internee is brought up for trial for an offence under this Act, for which that Court has the power to sentence him for a term of imprisonment extending to two years or more,
shall not proceed with the trial until it is proved to the satisfaction of the Court that a Notice stating the matters set out in subsection (2) in so far as they are known to the prosecutor, had been served three weeks previously on the protecting power, if any, and if the accused is a protected prisoner of war on the accused and the prisoners' representative.
(2) The following matters shall be included in the Notice referred to in subsection (1)-
(a) the full name, date of birth and description of the accused, including his profession or trade;
(b) where the accused is a protected prisoner of war, his rank and his army, regimental, personal and serial number ;
(c) the accused's place of detention, internment or residence;
(d) the offence with which the accused is charged; and
(e) the Court before which the trial is to take place and the date and the time fixed for the trial.
(3) For the purposes of this section a document purporting -
(a) to be signed on behalf of the protecting power or by the prisoners' representative or by the person accused as the case may be; and
(b) to be an acknowledgement of the receipt by that power, representative or person on a specified day, of a Notice described in the document as a Notice given in terms of the provisions of this section,
shall, unless the contrary is shown, be sufficient evidence that the notice required by subsection (1) was served on that power, representative or person on that day.
(4) For the purposes of this section "prisoners' representative" in relation to a particular protected prisoner of war at a particular time means the person by whom the function of the prisoners' representative within the meaning of Article 79 of the Third Convention were exercisable in relation of that prisoner at the camp or place at which that prisoner of war was detained at, or last detained before that time, as a protected prisoner of war.
(5) A Court which adjourns a trial for the purposes of enabling the requirements of this section to be complied with, may, notwithstanding anything to the contrary in any other written law, remand the accused for the period of the adjournment.
Legal representation for prisoners' of war.
(1) The High Court before which -
(a) any person is brought for trial for an offence under section 2 of this Act; or
(b) a protected prisoner of war is brought up for trial for any offence,
shall not proceed with the trial unless-
(i) the accused is represented by Counsel;
(ii) it is proved to the satisfaction of the Court that a period of twenty- one days has elapsed since instructions for the representation of the accused at the trial were first given to the Counsel,
and if the Court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, then, notwithstanding anything to the contrary in any other written law, the Court may authorize the detention of the accused in such custody as it may think fit for the period of the adjournment.
(2) Where the accused is a protected prisoner of war, in the absence of a Counsel accepted by the accused as representing him, Counsel instructed for the purpose on behalf of the protecting power, shall, without prejudice to the requirements of paragraph (ii) of subsection (1) be regarded for the purposes of that subsection as representing the accused.
(3) If the Court adjourns the trial in pursuance of the provisions of subsection (1) on the ground that the accused is not represented by Counsel, the Court shall direct that a Counsel be assigned to watch over the interests of the accused at future proceedings in connection with the offence. In future proceedings, in the absence of Counsel either accepted by the accused as representing him, or instructed as specified in subsection (2), Counsel assigned in terms of the provisions of this subsection shall without prejudice to the requirements of the provisions of paragraph (ii) of subsection (1), be regarded for the purposes of such subsection as representing the accused.
(4) The manner of assigning a Counsel in pursuance of the provisions of subsection (3) and the fees to be paid to such a Counsel shall be as prescribed.
Appeals by protected persons.
(1) Where a protected prisoner of war or a protected internee has been sentenced to imprisonment for a period exceeding two years, the time within which notice of appeal must be given shall, notwithstanding anything in any other law, be deemed to commence on the day on which he receives notice given, -
(a) in the case of a prisoner of war of a Commonwealth country, by an officer of the armed forces of his country ; and
(b) in the case of an internee, by or on behalf of the Superintendent of the Prison in which he is confined, to the effect that the protecting power has been notified of his conviction and sentence and for such further time as would have been the time allowed if the conviction or sentence had taken place or been pronounced on that day.
(2) 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 unchanged or has become a sentence of imprisonment for a term exceeding two years, any time allowed in relation to a further appeal in respect of the conviction or sentence as confirmed or varied upon the previous appeal shall be deemed to continue to run until the day on which the convicted person receives a notice given by a person referred to in subsection (1), as the case may require, that the protecting power has been notified of the decision of the Court upon the previous appeal, and for such further time as would have been within the time allowed if that decision had been pronounced on that day.
(3) Upon the application of the provisions of subsection (1) in relation to a convicted person, then, unless the Court otherwise orders, the order of Court relating to the restitution of property or the payment of compensation to an aggrieved person shall not take effect, and any provision of law relating to the re-vesting of property on conviction shall not take effect in relation to the conviction, while an appeal by the convicted person against his conviction or sentence is possible without the extension of time other than the extension provided by subsection (2).
(4) The provisions of subsections (1), (2) and (3) shall 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.
Reduction of sentence and custody of protected prisoners of war and internees.
(1) Where a protected prisoner of war or a protected internee is convicted of an offence, the Court shall -
(a) in the case of a sentence of death, on a consideration of all the facts of the case, consider whether such sentence can be commuted to one of life;
(b) in fixing a term of imprisonment in respect of the offence, deduct from the term it would otherwise have fixed, any period during which the convicted person had been in custody in connection with the offence before the trial ; and
(c) in fixing the penalty other than imprisonment in respect of the offence, take that period of custody into account.
(2) Where the Attorney-General is satisfied that a protected prisoner of war accused of an offence has been in custody in connection with that offence, while awaiting trial, in a place other than a camp or place in which the protected prisoners of war are detained, for an aggregate period of not less than three months, the High Court may, on a request of the Attorney-General, direct that the prisoner shall be transferred from that custody to the custody of the armed forces and thereafter remain in such custody at a camp or place in which protected prisoners of war are detained, and be brought before the Court at the date and time appointed for his trial.
ABUSE OF THE RED CROSS AND OTHER EMBLEMS
Prohibition on use of the emblem.
(1) No person, unless authorized in writing by the Minister or by any person authorized in that behalf by the Minister, shall use or display or cause to be used or displayed for any purpose whatsoever in Sri Lanka or outside, or on board any ship or aircraft registered in Sri Lanka -
(a) the emblem of the red cross with vertical and horizontal arms of the same length on, and completely surrounded by, a white background, or the designation "Red Cross" ;
(b) the emblem of the red crescent moon on and completely surrounded by, a white background, or the designation "Red Crescent" ;
(c) the emblem of a red lion passing from right to left, completely surrounded by a white background, with its face turned towards the observer, holding erect in its raised right forepaw a scimita, with the upper half of the sun shooting forth rays appearing above the lions back, 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, and completely surrounded, by a red background being the heraldic emblem of the Swiss Confederation ; and
(e) a design or wording so nearly resembling any of the emblems or designations specified in paragraphs (a) to (d) above, so as to be capable of being mistaken for, or being understood as referring to, any one of those emblems or designations.
(2) If at any time subsequent to the coming into operation of this Act, any additional distinctive emblem is adopted by the High Contracting Parties to the Geneva Conventions, the Minister may by Order published in the Gazette declare any emblem as is so adopted, to be an emblem for the purposes of subsection (1) of this section, and for the use or display of which written authorisation of the Minister would be required in terms of this section.
(3) Any person who contravenes the provisions of subsection (1) of this section shall be guilty of an offence and shall on conviction after summary trial be liable to-
(a) in the case of a first offence, to a fine not exceeding five thousand rupees ;
(b) in the case of a second offence, to a fine not exceeding twenty thousand rupees ;
(c) in the case of a third offence, to a fine not exceeding thirty-five thousand rupees ; and
(d) in the case of a subsequent offence to a fine of rupees fifty thousand and rigorous imprisonment for a term not exceeding three months.
(4) The Minister may make regulations specifying the instructions and guidelines on the use of the emblem and design and to make appropriate provisions regulating the use for the purposes of any of the Conventions set out in Schedule I, Schedule II, Schedule III and Schedule IV or of any emblem and design and any conditions or limitations, to which, any authorization granted in terms of this section shall be subject to.
(5) The prohibition contained in subsection (1) shall not apply to a trade mark registered under the law applicable prior to the date of the coming into operation of this Act : and where a person is charged with contravening the provisions of subsection (1) it shall be a defence to such person to prove, -
(a) that he was lawfully using such emblem or design from a date prior to the coming into operation of this Act ;
(b) that such emblem, sign, designation or signal used in connection with such goods, had been applied to such goods before such person acquired them by some other person who had manufactured or dealt with the goods in the course of trade and had been lawfully using the same prior to the coming into operation of this Act.
(6) Where an offence against this section is committed by a body of persons, then every director, manager, secretary or other officer of such body shall be guilty of an offence unless he is able to prove that the act or omission constituting the offence was committed without his knowledge or consent and that he took all necessary steps to prevent the commission of such offence.
(1) The Minister may make regulations in respect of all matters required by this Act to be prescribed or in respect of which regulations are authorised or required to be made.
(2) Every regulation made by the Minister under subsection (1) shall be published in the Gazette and shall come into operation on the date of such publication.
(3) Every regulation made by the Minister under subsection (1) shall as soon as is convenient after its publication in the Gazette be placed before Parliament for its approval. Any regulation not so approved shall be deemed to be rescinded as from the date of such disapproval.
(4) Notification of the date of which any regulation is so deemed to be rescinded shall be published in the Gazette.
Sinhala text to prevail in the case of inconsistency.
13. In the event of any inconsistency between the Sinhala and tamil texts of this Act, the Sinhala text shall prevail.
14. In this Act unless the context otherwise requires-
"Conventions" mean the First Convention, the Second Convention, the Third Convention and the Fourth Convention, the relevant Articles of which are set out in the Schedule I, Schedule II, Schedule III and Schedule IV to this Act ;
"Court" shall include any Court Martial within the meaning of the Army Act (Chapter 357), the Navy Act (Chapter 358) or the Air Force Act (Chapter 359) respectively ;
"protected internee" means a person protected by the Fourth Convention and interned in Sri Lanka ;
"protecting power" in relation to a protected internee or a prisoner of war, means the power or organization which is carrying out in the interests of the power of which he is a national or of whose armed forces he is or was at any material time a member, the duties assigned to protecting powers under the Third Convention or as may be necessary the Fourth Convention ;
"protected prisoner of war" means a person protected by the Third Convention.
See Schedules ,
4 of 2006