Practice Relating to Rule 99. Deprivation of Liberty
South Africa’s LOAC Manual (1996) provides that “unlawful confinement of a protected person” is a grave breach of the 1949 Geneva Conventions.
South Africa’s LOAC Teaching Manual (2008) states:
1.3 Relationship between LOAC [law of armed conflict] and Human Rights Law and Fundamental Protection Provided under LOAC.
The following comparison can be made between Human Rights Law and the LOAC:
Human Rights Law
- Detention is only allowed after a fair trial unless a state of national defence exists.
- No trial for legitimate acts of war (but common article 3 to the  Geneva Conventions and [1977 Additional] Protocol II do not prohibit trial and punishment for persons engaged in internal conflicts, as long as the trial is fair in a properly constituted court of law).
The manual also states:
2.4 Specifically Protected Persons and Objects:
Internment of Civilians
Article 79 [of the 1949] Geneva Convention IV states that the Parties to a conflict shall not intern protected persons (i.e. civilians), except in accordance with the provisions of Articles 41, 42, 43, 68 and 78.
Should the Power in whose hands civilians may be consider other control measures mentioned in Geneva Convention IV to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment.
Grounds for Internment
The internment or placing in assigned residence of civilians may be ordered only if the security of the Detaining Power makes it absolutely necessary.
The manual further states:
4.4 Internal and Non-International armed conflict
The difference in approach between International Human Rights Law and the LOAC could be indicated by the following:
Human Rights Law
- The right to be tried rather than detained is protected.
- The right to be detained rather than tried is paramount.
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
- Grave Breaches of the LOAC
-  Geneva Convention III article 130 and Geneva Convention IV article 147 determine that the following acts are grave breaches:
- Unlawful confinement of a protected person[.]
South Africa’s ICC Act (2002) reproduces the crimes listed in the 1998 ICC Statute, including “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” as a crime against humanity, and the war crime of “unlawful confinement” of persons protected under the 1949 Geneva Conventions in international armed conflicts.
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  Third [Geneva] Convention or the  Fourth [Geneva] Convention, as the case may be.”
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”.
The Act also states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(d) a grave breach referred to in Article 147 of the Fourth Convention.
In 2012, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the deputy permanent representative of South Africa stated:
My delegation … shares the concerns of the [UN] Secretary-General with regard to the plight of migrant labourers, particularly those from sub-Saharan Africa recently caught in the conflict in Libya. Our delegation has consistently raised that concern in the context of the Libyan conflict. In that regard, we have consistently condemned all acts of killing, sexual violence, discrimination and arbitrary arrest perpetrated against migrant workers and their families.