القاعدة ذات الصلة
South Africa
Practice Relating to Rule 127. Respect for Convictions and Religious Practices of Persons Deprived of Their Liberty
South Africa’s Revised Civic Education Manual (2004) states: “Religious personnel should be allowed to minister to fellow prisoners and should be allowed access to all prisoner of war camps where no such ministry is available.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 78.
South Africa’s LOAC Teaching Manual (2008) states:
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:
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- Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. …
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW).
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 16–17.
The manual also states:
2.3 Specifically Protected Persons and Objects …
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c. Prisoners of War
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POW are entitled to:
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- freedom of religious observance;
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2.4 Specifically Protected Persons and Objects:
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Internment of Civilians
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Accommodation
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In particular, internees must be provided with sufficient/adequate:
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- premises for the holding of religious services[.]
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 72, 91, 97, 112, 127 and 128–129.
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons. …
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(2) Everyone who is detained, including every sentenced prisoner, has the right –
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(f) to communicate with, and be visited by, that person’s –
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(iii) chosen religious counsellor; …
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37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when–
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
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(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
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(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.
(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
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(8) Subsection (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.
South Africa, Constitution, 1996, as amended to 2003, Sections 35(2)(f)(iii) and 37(1)(a), (5)(c)–6 and (8).
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … subsections … (2)(d) …”. Subsection 2(f) is not listed.
South Africa, Constitution, 1996, as amended to 2003, Section 37.
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.”
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
