GENEVA CONVENTIONS (AMENDMENT) ACT, 1998

AN ACT TO ENABLE EFFECT TO BE GIVEN TO THE PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 ADOPTED AT GENEVA ON 8 JUNE 1977 AND FOR THAT PURPOSE TO AMEND THE GENEVA CONVENTIONS ACT, 1962, THE RED CROSS ACTS, 1938 TO 1954, AND SECTION 1 OF THE PRISONERS OF WAR AND ENEMY ALIENS ACT, 1956, AND TO PROVIDE FOR CONNECTED MATTERS. [13th July, 1998]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1 Definition.

1.—In this Act “the Principal Act” means the Geneva Conventions Act, 1962.

2 Amendment of section 2 of Principal Act.

2.—The Principal Act is hereby amended by the substitution for section 2 of the following section:

“Interpretation.

2.— In this Act—

‘court’ does not include a court-martial;

‘International Fact-Finding Commission’ means the International Fact-Finding Commission established under Article 90 of Protocol I;

‘the Minister’ means the Minister for Foreign Affairs;

‘protected internee’ means a person protected by the Convention set out in the Fourth Schedule to this Act and Protocol I and interned in the State;

‘protected prisoner of war’ means a person protected by the Convention set out in the Third Schedule to this Act (including a person protected as a prisoner of war under Protocol I) or a person entitled under Protocol I to the same protection as a prisoner of war;

‘the protecting power’, in relation to a protected prisoner of war or a protected internee, means the power or organisation which is carrying out, in the interests of the power of which he or she is a national, or of whose forces he or she is, or was at any material time, a member, the duties assigned to protecting powers under the Convention set out in the Third Schedule to this Act, the Convention set out in the Fourth Schedule to this Act or Protocol I;

‘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) adopted at Geneva on 8 June 1977, the text of which is set out in the Fifth Schedule to this Act;

‘Protocol II’ means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) adopted at Geneva on 8 June 1977, the text of which is set out in the Sixth Schedule to this Act;

‘the Scheduled Conventions’ means the Conventions set out in the Schedules to this Act.”.

3 Amendment of section 3 of Principal Act.

3.—Section 3 (which relates to grave breaches of the Scheduled Conventions) of the Principal Act is hereby amended by the substitution for subsection (1) (as amended by section 10 of the Criminal Justice Act, 1964), of the following subsections:

• “(1) Any person, whatever his or her nationality, who, whether in or outside the State, commits or aids, abets or procures the commission by any other person of a grave breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence and on conviction on indictment—

  • (a) in the case of a grave breach involving the wilful killing of a person protected by the Convention or Protocol in question, shall be liable to imprisonment for life or any less term,

  • (b) in the case of any other grave breach, shall be liable to imprisonment for a term not exceeding 14 years.

• (1A) Any person, whatever his or her nationality, who, whether in or outside the State, fails to act, when under a duty to do so, to prevent the commission by another person of a grave breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence and on conviction on indictment shall be liable to imprisonment for a term not exceeding 10 years.

• (1B) For the purposes of this section—

  • (a) a grave breach of any of the Scheduled Conventions is anything referred to as a grave breach of the Convention in the relevant Article, that is to say—

    • (i) in the case of the Convention set out in the First Schedule to this Act, Article 50,

    • (ii) in the case of the Convention set out in the Second Schedule to this Act, Article 51,

    • (iii) in the case of the Convention set out in the Third Schedule to this Act, Article 130,

    • (iv) in the case of the Convention set out in the Fourth Schedule to this Act, Article 147, and

  • (b) a grave breach of Protocol I is anything referred to as a grave breach of the Protocol in paragraph 4 of Article 11, or paragraph 2, 3 or 4 of Article 85, of the Protocol.”.

4 Amendment of section 4 of Principal Act.

4.—(1) Section 4 (which relates to minor breaches of the Scheduled Conventions) of the Principal Act is hereby amended by—

• (a) in subsection (1), the insertion after “Scheduled Conventions” of “or of Protocol I or Protocol II”,

• (b) the insertion after subsection (1) of the following subsection:

• “(1A) Any person, whatever his or her nationality, who, in the State, fails to act, when under a duty to do so, to prevent the commission by another person of a minor breach of any of the Scheduled Conventions or Protocol I or Protocol II shall be guilty of an offence.”,

• (c) in subsection (2), the insertion after “Scheduled Conventions” of “or of Protocol I or Protocol II”,

• (d) the insertion after subsection (2) of the following subsection:

• “(2A) Any citizen of Ireland who, outside the State, fails to act, when under a duty to do so, to prevent the commission by another person of a minor breach of any of the Scheduled Conventions or Protocol I or Protocol II shall be guilty of an offence.”,

• (e) in paragraph (a) of subsection (3), the substitution for “six” of “12” and for “fifty pounds” of “£1,500”,

• (f) in paragraph (b) of subsection (3), the substitution for “three hundred pounds” of “£15,000”, and

• (g) the substitution for subsection (4) of the following:

• “(4) In this section ‘minor breach’ means—

  • (a) contravention of a provision of any of the Scheduled Conventions or of Protocol I which is not any such grave breach of that Convention or that Protocol as is mentioned in the relevant Article thereof referred to in section 3 of this Act, or

  • (b) a contravention of Protocol II.”.

• (2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under section 4 of the Principal Act may be instituted within two years from the date of the offence.

5 Substitution of section 5 of Principal Act.

5.—The Principal Act is hereby amended by the substitution for section 5 of the following section:

“Proof of application of any Scheduled Convention or Protocol.

5.— If, in any proceedings under this Act in respect of any breach of any of the Scheduled Conventions or of Protocol I or Protocol II, a question arises under Article 2 or 3 of any of the Scheduled Conventions or Article 1 or 3 of Protocol I or Article 1 of Protocol II (which relate to the circumstances in which the Conventions and Protocols apply), that question shall be determined by the Minister and a certificate purporting to set out any such determination and to be signed by or on behalf of the Minister shall be received in evidence and be deemed to be so signed, without further proof, unless the contrary is shown.”.

6 Judicial notice of report of International Fact-Finding Commission.

6.—The Principal Act is hereby amended by the insertion after section 5 of the following section:

“Judicial notice of report of International Fact-Finding Commission.

5A. In any proceedings under this Act, judicial notice shall be taken of a report of the International Fact-Finding Commission, submitted under paragraph 5 of Article 90 of Protocol I.”.

7 Additional Schedules to Principal Act.

7.—The Principal Act is hereby amended by the insertion after the Fourth Schedule thereto of the Schedules set out in the Schedule to this Act as the Fifth and Sixth Schedules to the Principal Act.

8 Certification by order of any reservation or declaration to Protocol I or Protocol II.

8.—(1) If the ratification by the State of Protocol I or Protocol II is subject to any reservation or accompanied by a declaration—

• (a) the Minister may by order certify that such a reservation or declaration has been made and the terms in which it was made, and

• (b) the Protocol shall for the purposes of this Act be construed subject to and in accordance with any reservation or declaration so certified.

• (2) If such a reservation or declaration is withdrawn (in whole or in part) the Minister may by order certify that fact and revoke or amend any order made under subsection (1) of this section containing the terms of that reservation or declaration.

9 Restriction of use of civil defence international distinctive sign and other distinctive signals.

9.—(1) It shall not be lawful for any person—

• (a) other than a person involved in civil defence, to use or display the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence,

• (b) other than a person involved in the protection of works and installations containing dangerous forces (within the meaning of Article 56 of Protocol I), to use or display the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces, as provided for in paragraph 7 of that Article, or

• (c) other than a person attached to a medical unit or transport, to use any of the distinctive signals specified in Articles 8 and 9 of Chapter III of Annex I to Protocol I, being the signals of identification for medical units and transports.

• (2) It shall not be lawful for any person to use for the purpose of trade or business or any other purpose whatsoever, without the consent of the Minister for Defence—

• (a) any design so nearly resembling the sign referred to in subsection (1)(a) of this section as to be capable of being mistaken for that sign,

• (b) any design so nearly resembling the sign referred to in subsection (1)(b) of this section as to be capable of being mistaken for that sign, or

• (c) any signal so nearly resembling any of the signals referred to in subsection (1)(c) of this section as to be capable of being mistaken for one of those signals.

• (3) The restriction effected by subsection (1)(a) or (b) or (2)(a) or (b) of this section does not apply where a sign is used pursuant to a right acquired through the use of that sign prior to the commencement of this Act.

• (4) The Minister for Defence may make regulations to supervise the display of the international distinctive sign of civil defence or of the international special sign for works and installations containing dangerous forces.

• (5) A person who contravenes this section or regulations made under subsection (4) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

• (6) On conviction for an offence under this section the Court may order the forfeiture of any sign used in the commission of the offence or anything on which the sign is displayed.

• (7) Where any sign is forfeited under this section such sign shall be disposed of in accordance with the directions of the Minister for Defence and any moneys arising from any such disposition shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

• (8) Where an offence under this section is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (9) In a prosecution for an offence under this section it shall be presumed, until the contrary is shown, that the Minister for Defence did not consent to the use for the purpose of trade or business or any other purpose whatsoever of the sign, design or signal in question.

10 Regulations.

10.—(1) The Minister for Defence may, without prejudice to his or her power under section 4 (as amended by section 8 of the Red Cross Act, 1954) of the Red Cross Act, 1938, make regulations, in accordance with the provisions of any of the Scheduled Conventions, Protocol I or Protocol II, as the case may be, as he or she considers necessary for any or all of the following:

• (a) prescribing the form of flags, emblems, signs, signals, designations, designs, wordings, uniforms or insignia for use for the purposes of giving effect to any of the Scheduled Conventions, Protocol I or Protocol II and regulating their use,

• (b) prescribing the form of identity cards for use for the purposes of giving effect to any of the Scheduled Conventions or Chapter I or V of Annex I to Protocol I and regulating their use,

• (c) prohibiting, restricting or directing the use of such flags, emblems, signs, signals, uniforms or insignia as specified in the regulations, for the purposes of giving effect to Article 38 or 39 of Protocol I or Article 12 of Protocol II.

• (2) A person who contravenes or fails to comply with any regulation made under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

• (3) Every regulation made by the Minister for Defence under this section or section 9(4) of this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

• (4) Every regulation made under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister for Defence to be necessary.

11 Identity cards for journalists.

11.—(1) The Minister may, on behalf of the Government, issue, for the purposes of Article 79 of Protocol I, an identity card, similar to the model in Annex II to Protocol I, to a journalist, referred to in that Article, whom the Minister considers to be engaged or likely to be engaged as such in dangerous professional missions in areas of armed conflict.

• (2) An identity card issued under this section to a journalist may be issued to the journalist subject to such terms or conditions as the Minister decides.

• (3) The Minister may, from time to time, specify in regulations a fee to be paid by a person for the issue of an identity card under this section.

12 Information cards for evacuated children.

12.—The Minister may establish a card in respect of a child evacuated under Article 78 of Protocol I, containing a photograph of the child and the information required under paragraph 3 of that Article, which shall be sent to the Central Tracing Agency of the International Committee of the Red Cross.

13 Amendment of Red Cross Acts, 1938 to 1954.

13.—(1) Section 6 (1) of the Red Cross Act, 1938, is hereby amended by the substitution for “ten pounds” of “£1,500”.

• (2) The Red Cross Act, 1954, is hereby amended—

• (a) in section 3, after the definition of “the Civilians Convention” by the insertion of the following definitions:

“‘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) adopted at Geneva on 8 June 1977;

‘Protocol II’ means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) adopted at Geneva on 8 June 1977;”,

• (b) in section 4(2)(a)(i), after “Wounded and Sick Convention” by the insertion of “, Part II of Protocol I and Part III of Protocol II”,

• (c) in section 4(2)(a)(ii), after “Maritime Convention” by the insertion of “, Part II of Protocol I and Part III of Protocol II”,

• (d) in section 4(2)(b), after “Prisoners of War Convention” by the insertion of “and Part III of Protocol I”,

• (e) in section 4(2)(c), by the insertion after “Civilians Convention” of “, Part IV of Protocol I and Part IV of Protocol II”,

• (f) in section 7(1)—

• (i) by the deletion in paragraph (b) after “Convention,” of “and”,

• (ii) by the substitution in paragraph (c) for “Convention.” of “Convention, and”, and

• (iii) by the insertion after paragraph (c) of the following paragraph:

• “(d) the authorisations or assignments referred to in Articles 8 and 61 of Protocol I, or the facilities referred to in Article 81 of Protocol I”,

and

• (g) in section 7(2), by the substitution for “or commission” of “, commission, assignment or facility”.

14 Amendment of Prisoners of War and Enemy Aliens Act, 1956.

14.—Section 1 of the Prisoners of War and Enemy Aliens Act, 1956, is hereby amended—

• (a) in subsection (1), by the insertion after the definition of “the Civilians Convention” of the following definition:

“‘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) adopted at Geneva on 8 June 1977;”,

and

• (b) by the substitution for subsection (2) of the following subsections:

• “(2) Any reference in this Act to prisoners of war is, primarily, to—

  • (a) persons who, in relation to the State and a war or armed conflict in which the State is a participant, are prisoners of war within the meaning of Paragraph A of Article 4 of the Prisoners of War Convention or paragraph 1 of Article 44 of Protocol I or who are entitled under paragraph 4 of the said Article to protections equivalent in all respects to those accorded to prisoners of war or armed conflict by the said Convention and Protocol, and

  • (b) persons who, in relation to the State and a war in which the State is not a participant, are, by reference to subparagraph (2) of Paragraph B of Article 4 of the Prisoners of War Convention, to be treated as prisoners of war under that Convention,

  but any such reference shall also be construed as including a reference to the persons who in relation to the State and a war or armed conflict in which the State is a participant, having—

  - (i) committed a belligerent act, are, pursuant to Article 5 of the Prisoners of War Convention, to enjoy the status of prisoners of war under that Convention, or
  
  - (ii) taken part in hostilities, are, pursuant to Article 45 of Protocol I, to be presumed to be prisoners of war, until such time as their status has been determined by a competent tribunal.
  

• (2A) Any reference in this Act to prisoners of war includes a reference to mercenaries (within the meaning of Article 47 of Protocol I) who as such have fallen into the power of, or been received on the territory of, the State.”.

15 Restriction of application of section 12 of Extradition Act, 1965 (military offences).

15.—The restriction on granting extradition contained in section 12 of the Extradition Act, 1965, does not apply in the case of an offence involving a grave or minor breach of any of the Scheduled Conventions or Protocol I or a minor breach of Protocol II.

16 Contributions to International Fact-Finding Commission.

16.—There may be paid by the Minister to the International Fact-Finding Commission, out of moneys provided by the Oireachtas, contributions, towards the administrative expenses of the Commission, of such amounts as the Minister, with the consent of the Minister for Finance, may sanction.

17 Expenses.

17.—The expenses incurred by the Minister or the Minister for Defence in the administration of this Act or anything relating thereto shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

18 Short title, collective citation, construction and commencement.

18.—(1) This Act may be cited as the Geneva Conventions (Amendment) Act, 1998.

• (2) The Principal Act and this Act (other than sections 13 and 14) may be cited together as the Geneva Conventions Acts, 1962 and 1998, and shall be construed together as one.

• (3) The Red Cross Acts, 1938 to 1954, and section 13 of this Act may be cited together as the Red Cross Acts, 1938 to 1998.

• (4) The Prisoners of War and Enemy Aliens Act, 1956, and section 14 of this Act may be cited together as the Prisoners of War and Enemy Aliens Acts, 1956 and 1998.

• (5) This Act shall come into operation on such day as the Minister may appoint by order.

SCHEDULE Schedules to be Inserted into the Principal Act