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South Africa
Practice Relating to Rule 123. Recording and Notification of Personal Details of Persons Deprived of Their Liberty
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:
…
- 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:
c. Prisoners of War
…
Questioning of POW
- A POW is only obliged to answer questions regarding his[:]
- surname;
- first names;
- rank;
- date of birth;
- serial number; or
- equivalent information.
- This is the only information a POW is obliged to give. In order to obtain further information, a POW may be asked questions (without any coercion), tricked into revealing information or have conversations listened in on, but no force, torture or coercion of any kind may be used to obtain any kind of information from a POW.
- If a POW willfully infringes this rule by refusing to give the abovementioned information, he may render himself to be restricted of privileges accorded to his rank and status.
- A POW must be issued with a POW identity card containing the said information as well as fingerprints and/or signature of the bearer and other necessary information.
…
Conclusion
…
A POW is only obliged to answer questions regarding his[:]
- surname;
- first names;
- rank;
- date of birth;
- serial number; or
- equivalent information.
- This is the only information a POW is obliged to give. In order to obtain further information, a POW may be asked questions (without any coercion), tricked into revealing information or have conversations listened in on, but no force, torture or coercion of any kind may be used to obtain any kind of information from a 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 2, pp. 91, 94–95 and 100–101.
South Africa’s Constitution (1996), as amended to 2003, states:
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; …
…
…
(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:
(a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
(b) A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained.
…
…
(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, Section 37(1)(a), (6)(a)–(b) and 8.
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.
