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South Africans fighting for Israel in Gaza: Legal implications with Professor Michelle Nel

[Times Live]

Azra Hoosen |
28 March 2024 | 15:30 CAT
2 min read

South Africa prohibits citizens from participating in foreign armed conflicts without official authorisation. This includes joining foreign armies South Africa does not agree with, like the Israel Defence Forces.

South Africa’s foreign minister, Naledi Pandor, said the country’s citizens fighting for the Israel Defence Forces in Gaza faced prosecution upon their return. The South African government has also cautioned naturalised citizens that joining foreign armed forces in unauthorised conflicts could lead to citizenship revocation. Despite these laws, enforcement has been inconsistent historically.

In an interview with Radio Islam, international and military law expert, Michelle Nel, shared her insights on South Africans participating in foreign conflicts.

According to Dr Nel, South Africa’s strict regulations on citizens’ involvement in foreign armed conflicts have been reinforced with the reminder that any form of military assistance abroad requires explicit permission from the National Conventional Arms Control Committee. Section 198(b) of the constitution prohibits South African citizens from participating in foreign armed conflicts, a stance further solidified by the Regulation of Foreign Military Assistance Act of 1998, which criminalises unauthorised involvement in such activities.

She clearly stated that South Africans, legal entities, permanent residents, and foreign nationals within South Africa’s borders are strictly forbidden from participating in mercenary activities or any military actions for a foreign country without explicit authorization from the National Conventional Arms Control Committee.

When asked about the government’s tracking process, she said: “There is no real way for the government to track South Africans who participate, especially if you have dual citizenship. People are not always asked why they are leaving, so will they find out apart from people posting on social media or through other people knowing?”

Nel pointed out that the media doesn’t frequently cover trials involving South Africans serving in foreign militaries or private military companies.

“Ultimately, if they disobeyed the law. It will follow the same route as any other transgression or crime. The matter will be given to the Police to investigate, or if evidence has been collected, then the National Prosecuting Authority and a trial will happen if there is sufficient evidence,” she said.

She said plea bargaining is common, with individuals often receiving fines or suspended prison sentences. However, these outcomes are rarely reported in the news.

She highlighted a challenge: Individuals involved in foreign military activities must return to South Africa before they can be prosecuted.

“One of the main challenges is to actually pinpoint that a crime is being committed and to gather sufficient evidence and witnesses to prove that the person was actually involved so that they can prosecute that person,” she said.

Nel believes a better process needs to be in place and that people need to be made aware of these legislations.

According to Nel, in the past, the Palestinian Solidarity Alliance submitted a list of 73 South Africans of Jewish descent who fought for Israel’s military in 2008 and 2009, but no prosecution followed. In 2014, another case arose, but it’s unclear if it led to prosecution. In 2015, around 100 former South African soldiers went to Nigeria to train its military against Boko Haram. The defence minister suggested arresting them upon return, but it’s uncertain if this happened. Many South Africans still serve in foreign militaries or private military companies, but the prosecuting authority hasn’t successfully prosecuted any. Some cases ended with fines or suspended sentences after plea bargains.

Nel stressed the government’s responsibility to initiate campaigns and educate the public about the consequences of participating in foreign military activities. This proactive approach can raise awareness and deter individuals from engaging in such actions.

LISTEN to the full interview with Muallimah Annisa Essack and international and military law expert, Michelle Nel, here.


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