Practice Related to Rule 95. Forced Labour
South Africa’s LOAC Manual (1996) provides that the “compelling of civilians to perform prohibited labour” is a grave breach of the 1949 Geneva Conventions and their 1977 Additional Protocols.
South Africa’s Revised Civic Education Manual (2004) provides that “[c]ompelling civilians to perform prohibited labour” is a grave breach of the law of armed conflict and a war crime.
South Africa’s Constitution (1996), as amended to 2003, states:
13. Slavery, servitude and forced labour.
- No one may be subjected to slavery, servitude or forced labour.
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; …
(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 –
(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.
In the “Table of Non-Derogable Rights”, the Constitution includes section 13, entitled “Slavery, servitude and forced labour”, and states that the right is protected “[w]ith respect to slavery and servitude”. Forced labour is not mentioned.
South Africa’s LOAC Manual (1996) states that “compelling a protected person to serve in the forces of the hostile power” is a grave breach of the 1949 Geneva Conventions.
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “compelling a prisoner of war or other protected person to serve in the forces of a hostile Power” and “compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war”.
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 –
(c) a grave breach referred to in Article 130 of the Third Convention;
(d) a grave breach referred to in Article 147 of the Fourth Convention.