South Africans fighting for Israel in Gaza: what does the law say?

South African Foreign Minister Dr Naledi Pandor has warned citizens fighting for the Israel Defense Forces (IDF) in Gaza that they face prosecution upon their return.

There’s a history of South African citizens of Jewish descent fighting for Israel, but the number involved in the current war is unknown. The Conversation Africa asked Michelle Nel, an expert in international and military law, for her insights.

Which South African law bars its citizens from fighting in foreign wars or armies?

South Africa explicitly prohibits citizens from rendering any foreign military assistance without the permission of the National Conventional Arms Control Committee (NCACC). The committee is appointed by the president, and controls all issues related to conventional arms.

Section 198(b) of the Constitution precludes South African citizens from participating in any foreign armed conflict. The Regulation of Foreign Military Assistance Act, 1998, effectively criminalises such actions.

In an apparent hardening of the South African government’s position against Israel, Pandor hasn’t just threatened to have South African citizens fighting in the IDF prosecuted. The government also warned in December 2023 that naturalised South Africans could have their citizenship revoked for joining foreign armed forces engaged in wars the country didn’t agree with.

Citizenship is governed by the South African Citizenship Act of 1995. It can revoke South African citizenship where a citizen engages, under the flag of another country, in a war that the republic doesn’t support.

However, Section 20 of the Constitution also determines that no citizen may be deprived of citizenship.

What does the law prohibit?

The Constitution creates a wide framework for prohibiting participation by citizens in armed conflict.

South Africans are prohibited from engaging in any kind of mercenary activity or taking part in any military action on behalf of a foreign country without the express authorisation of the NCACC. Legal entities such as a company, permanent residents, and foreign nationals are also prohibited from rendering such assistance within the borders of the country.

“Foreign military assistance” is widely defined. It includes not only the actual rendering of such assistance, but any attempt to render assistance, any encouragement, incitement, or solicitation thereof.

It criminalises:

• Providing advice or training any personnel or operational support;
• Recruitment;
• Medical services;
• Procurement of equipment;
• Security services such as those rendered by private military companies in areas of conflict; and
• Assisting in coups or furthering the military interests of parties to a conflict.

The Regulation of Foreign Military Assistance Act is set to be repealed by the Prohibition of Mercenary Activities and Regulations of Certain Activities in Country of Armed Conflict Act, 2006, which is yet to be promulgated. This new Act goes as far as prohibiting the rendering of humanitarian assistance in a country of armed conflict unless the organisation involved is duly registered with the arms control committee.

How has the law been applied in the past?

In 2009, the Palestinian Solidarity Alliance handed a list of 73 South Africans of Jewish descent who had fought for the Israeli military in 2008 and 2009 to the National Prosecuting Authority. The authority declined to prosecute. This was followed by a case brought against another South African citizen serving in the Israel military in 2014. A docket was opened in the Western Cape, but no information could be found as to whether he was, in fact, prosecuted.

In 2015, about 100 former South African soldiers reportedly left to train the Nigerian military to combat Boko Haram. Defence Minister Nosiviwe Mapisa-Nqakula reportedly said that they should be arrested upon their return to South Africa. Information about whether these arrests and prosecutions in fact took place isn’t readily accessible.

Many South Africans continue to serve in foreign armed forces and private military companies yet the prosecuting authority hasn’t succeeded in prosecuting any of them. Some cases have been settled by way of plea bargain, with fines and suspended prison sentences.

Ultimately, the efficacy of the legislation depends on its consistent enforcement. The history of inconsistent prosecution and accountability in terms of the Mercenary Activities Act raises questions about the prosecuting authority’s ability to successfully prosecute the South Africans fighting for Israel.

Do other countries have similar laws? Are they a good thing?

Very few countries have legislation prohibiting their nationals from joining foreign armed forces. The United Kingdom prohibits its citizens from joining foreign armed forces. In the United States (US), they may forfeit their citizenship. Joining a foreign force fighting against the US is seen as treason.

The Netherlands doesn’t prohibit citizens from joining a foreign armed force as long as the country isn’t at war with the country concerned. Canadians are prohibited from joining any foreign armed force that’s at war with a friendly nation.

There are more countries prohibiting mercenaries. They include France and Germany. South Africa is among the few that prohibit any form of engagement in the service of a foreign force.

Since the war between Russia and Ukraine in February 2022, questions have been raised about the legal status of foreigner volunteers fighting in support of Ukraine within the wider ambit of international law.

Some of them have been killed. What would happen to those captured by the enemy?

The treatment of these foreign nationals could complicate diplomatic relations. It’s therefore in the interest of any country to control its citizens’ ability to participate in foreign conflicts.

• Michelle Nel is a lecturer in criminal and military law and the law of armed conflict at the Faculty of Military Science, Stellenbosch University.
• This article was originally published on theconversation.com