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In 1998, South Africa adopted stringent legislation prohibiting and regulating the participation of its citizens and nationals in foreign armed conflicts. Despite these efforts, a number of legislative shortcomings meant that South Africans continue to provide significant contributions of military assistance to foreign States and institutions, particularly those involved in armed conflicts. The adoption of updated and more comprehensive legislation in 2006 aimed to prevent this. Yet, nearly two decades onward and despite recent threats of prosecution, the legislation remains frozen and prosecutions under South African law against those involved in foreign armed conflicts remains negligible.


In November 2023, South Africa’s Minister in the Presidency Khumbudzo Ntshavheni announced that South Africans participating in the ongoing Israel-Hamas War (or any other armed conflict) could face domestic prosecution. The issue raised significant attention when subsequently, South Africa’s Minister of International Relations and Cooperation warned that South Africans fighting for the Israeli Defence Force (IDF) would be arrested and prosecuted upon their return. The involvement of South Africans in foreign armed conflicts as combatants, mercenaries and private contractors has renewed the spotlight on this pressing matter (see here, here and here). While South Africa took a proactive approach to these issues following its constitutional inauguration, existing legislation and its international obligations leave many questions open.

South Africa’s domestic legal position

Participation of South African nationals in armed conflict is regulated by South Africa’s constitution and national legislation. Prima facie, such participation is prohibited. Section 198(b) of the Constitution provides that ‘the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.’ To give effect to this, Parliament adopted the Regulation of Foreign Military Assistance Act in 1998.  The Act prohibits natural and legal persons from providing military assistance unless they are authorized to do so by a National Conventional Arms Control Committee (the Committee). In addition, the Act also prohibits and criminalises mercenary activity.

Although a broad definition is given to what constitutes ‘military assistance’, ‘mercenary activity’ seems to elude the Act. It is also notable that the provision of military assistance within the meaning of the Act is dependent on the existence of an armed conflict.

The condition of an armed conflict, the catch all ‘military assistance’, and ‘mercenary activity’

Section 3(a) of the Act states that no person may offer or render any foreign military assistance without the required permission. Interestingly, ‘foreign military assistance’ is broadly defined, with the Act listing four forms of such assistance. One of these includes the provision of military assistance in the form of ‘any action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state’. Colloquially, this provision refers to actions supporting coups. With the exception of this form of assistance, all three other forms seem to be conditioned on the existence of an armed conflict (Mujuzi, p. 233, Sandoz, p. 216). Section 1(iii)(a) refers to military assistance to a party to an armed conflict by means of, inter alia, advice, training, recruitment, and procurement of equipment. Section 1(iii)(b) concerns assistance in the form of security services for the protection of individuals in an armed conflict or their property. And Section 1(iii)(d) refers to actions which have the result of furthering military interests of a party to an armed conflict.

The conditioning of military assistance to situations of armed conflict opens up a number of issues. First, the Act defines an armed conflict with reference to the parties to such a conflict. This includes conflict between foreign armed forces, between a foreign armed force and a dissident or armed group, and between armed groups. Defining an armed conflict by mere reference to potential parties to such a conflict does not take into account the divergent character of armed conflicts today. In addition, the existence and subsequent acknowledgement of an armed conflict remains elusive. Even under international law, there is no international body responsible for declaring the existence of an armed conflict. States may, for example, choose to prevent or reject such a designation in order to avoid considering themselves bound by certain rules of international humanitarian law.

Beyond this, it remains unclear whether the provision of military assistance to a foreign State not a party to an armed conflict would be lawful.

In contrast to the broad definition given to military assistance, the Act prohibits mercenary activity which it simply defines as ‘direct participation as a combatant in armed conflict for private gain’. This definition leaves much room for debate. First, mercenaries under international law have a stringent criterion to be considered as such. Both the OAU Convention for the Elimination of Mercenarism in Africa and the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries apply half a dozen conditions defining mercenaries. While fighting for ‘private gain’ and actually taking ‘direct’ part in hostilities are two such conditions, others seem to be left out entirely from the Act. Second, the reference to ‘combatant in armed conflict’ is problematic in so far as mercenaries are specifically excluded from such a status. Article 47(1) of Additional Protocol I to the Geneva Conventions explicitly states that mercenaries do not have a right to combatant or prisoner of war status. The reference to ‘combatant’ while inappropriate, may however refer to individuals who take direct part in hostilities.

The 2006 Act

South Africa addressed these and other shortcomings within the Act in subsequent legislation. In 2006 Parliament passed the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act. The 2006 Act updates national legislation on foreign military assistance and mercenary activity in a number of ways. First, mercenary activity is more broadly defined to include direct participation, recruitment, use, training, support and financing (Juma and Tsabora, p. 242). Second, the Act distinguishes between two kinds of armed conflicts. The first is where a conflict ‘in a regulated country is proclaimed as such’. A conflict in a regulated country is proclaimed by the President in the Government Gazette on the advice of the Committee. In addition, armed conflict is also defined to include conflict between different parties even in cases where no proclamation is issued. This would suggest that government has broad discretion in regulating participation of South Africans in States that may have any kind of ongoing conflict within their territory (see also Neple, p. 31-32; Botha, p. 230).

Discussions leading up to this Act show that particular concern was raised at the Act’s attempt to define an armed conflict and that this could in part be in conflict with the country’s obligations under existing international law (see also here). A specific example raised in these debates as well as a major justification behind the drafting of the Act concerned the movement of South African companies and former Defence Force members to Iraq during the war there. The involvement of South Africans in Iraq was occasionally viewed by government as participation in mercenary activity. When asked to justify their presence in the country, these entities and personnel merely indicated that the conflict had ended with the fall of Saddam Hussein – therefore, no armed conflict continued to exist (and presumably, no request for authorization would be required). On this basis, the 2006 Act empowers the President to declare specific States as being involved in armed conflicts, thereby empowering the government to regulate participation of South Africans in such a State.

The Act also puts forward regulations for the enlistment of South Africans in foreign armed forces. Participation in foreign armed forces is subject to authorization from the Committee. Any authorization granted by the Committee may be revoked if the person takes part in an armed conflict on behalf of the foreign defence force and such authorization contravenes Section 9. Section 9 includes a broad list of criteria whereby authorisations cannot be given (or may be revoked), and includes where the authorization for participation contributes to regional instability, encourages terrorist activity, or prejudices South Africa’s national or international interests.

The case of prosecution

Although the 2006 Act aligned South Africa’s domestic law more broadly with international law, making up for shortcomings in the 1998 Act, the legislation has yet to take force some 17 years after it was adopted by Parliament. This is mainly because the Act is only to come into operation on a date determined by the President by proclamation in the Government Gazette. No such proclamation has yet been forthcoming. Some have cited the Act’s controversial provisions as the reason for the delay in its promulgation. These controversies include the requirement that humanitarian assistance needs to be authorized by the Committee and pressure from other States against the provision of authorizing foreign enlistment (see also Caparini, p. 174-175). What this essentially means is that it is unlikely domestic prosecution for crimes under the Act can take place.

It follows that to date, prosecutions concerning mercenary activity and foreign military assistance have been based on the 1998 Act. Notwithstanding that the number of prosecutions has been low under the Act, South Africa has had to handle a number of situations. The most notable prosecutions include that of Richard Rouget and Carl Alberts for recruiting mercenaries and for mercenary activity respectively, in the Ivory Coast conflict, and the prosecution of several individuals involved in the now infamous coup-plot in Equatorial Guinea (Wonga Coup) (see Bosch and Mariz, p. 100-101). As has been well pointed out, prosecutions under the 1998 Act remain low and usually involve plea bargains and minimal sentencing – detrimental to any deterrent effect the Act may have (Bosch and Maritz, Caparini, p. 170; p. 1031 – 102; , p. 174 – 175; Bosch, p. 4).

South Africans involved in Mozambique

Despite the broad prohibition of foreign military assistance, the lack of prosecutions means that South African involvement in Mozambique went largely under the (law enforcement and judicial) radar. What is interesting to note, however is that in Mozambique, South Africans have attempted and undertaken military assistance on behalf of both the Mozambican government and on behalf of the notorious ISIS-linked armed group Ansar al-Sunna. Since 2020, at least one South African private military contractor, the Dyck Advisory Group (DAG) has reportedly provided military assistance to Mozambique to fight the insurgency. Yet, several reports indicate that DAG has not been authorized under the 1998 Act to provide assistance there (see here, here and here). The involvement of the company in Mozambique without the required domestic authorization, despite operating with the consent of the Mozambican government, would prima facie suggest a violation of the 1998 Act. Moreover, the company’s involvement in Mozambique gained widespread attention when Amnesty International alleged DAG had committed war crimes in the province. In a report published in March 2021, DAG was accused of violating international humanitarian law by directing machine gun fire at civilian infrastructure including schools and hospitals, and when it indiscriminately hand-dropped explosives without distinguishing between civilians and combatants.

In May 2021, Parliament’s Standing Committee on Defence was briefed by the Committee in which it heard that DAG had not applied for authorization to operate in Mozambique and could be liable to prosecution (SALC submission). A further meeting of the Defence Committee later that year simply referred to DAG operations as ‘allegations’ that could not be confirmed. As yet, not formal investigation has been undertaken into DAG’s involvement in Mozambique nor the allegations levelled against it by Amnesty International.

In contrast to DAG’s involvement on the side of the Mozambican government, a few reports have also suggested that South Africans have travelled to Mozambique to fight for the insurgency. Although South African authorities have been hesitant in providing any information, the most notorious case came to light in connection with the prosecution of the infamous ‘Thulsie Twins’. Brothers Brandon-Lee and Tony-Lee Thulsie were arrested in 2016 on terrorism related charges and allegations that they were planning attacks against the US Embassy, the UK High Commission, and Jewish institutions in South Africa. Notably, the two had attempted to travel to Syria to join the Islamic State. During their trial, it was alleged that a close friend of the brothers, Renaldo Smith had initially become a State witness in the case. Subsequently, Smith fled the country and allegedly appeared in photographs linked to Ansar al-Sunna in Mozambique where he had joined the insurgency. It was also alleged that given the close relationship between the brothers and Smith, the possibility that they could join Smith in Mozambique could not be ruled out. Although the Thulsie twins were prosecuted under South Africa’s terrorism legislation, no charges were instituted against Smith.

It seems that in either case South Africa has largely looked the other way when it comes to Mozambique. As yet, no charges have been brought against any individuals under the 1998 Act for any involvement in Mozambique. In addition, it is worth noting that there is little doubt today that Mozambique is engaged in a non-international armed conflict for purposes of the 1998 Act to cover the involvement of South Africans there (see , p. 90-91).

South Africans fighting for the Israeli Defence Force in Gaza

Whether South Africa’s approach to its nationals fighting for the IDF will change trajectory in light of the Israel-Gaza War remains uncertain. It is worth noting that there is a history of South Africans fighting for the IDF. Equally so, threats of prosecution against South Africans fighting for the IDF are not new. In 2009, the Palestinian Solidarity Alliance and Media Review Network submitted a list of 75 South Africans to the National Prosecuting Authority alleging their involvement in the IDF. In 2014, another advocacy group opened a criminal complaint against South African Dean Goodson for fighting in the IDF. At the time, the Defence Ministry had indicated while it was aware of individuals participating in conflicts in the Middle East, no authorizations to do so were granted by South Africa.

Despite several attempts to have authorities investigate the involvement of South Africans, there has yet been no prosecution of a South African for fighting for the IDF. Lack of evidence has been consistently cited as a reason for non-prosecution (see here and here). At the same time, with the ongoing situation in the Gaza Strip, a criminal case against an individual fighting for the IDF has recently been lodged at the Cape Town Central Police. The case puts forward two criminal complaints against a South African for their participation in the IDF. In so far as a violation of the 1998 Act concerns, the complaint alleges that based on Instagram posts, the individual in question is either a full-time or voluntary member of the IDF rendering ‘military assistance’ within the meaning of the Act. In addition, the second of the two complaints alleges that the individual’s involvement in the IDF and their active duty in Gaza may be ‘prima facie evidence’ that they participated in conduct ‘plausibly’ prohibited by the Rome Statute. Such conduct includes the international crimes of genocide, crimes against humanity and war crimes. While it is uncertain whether the complaint suggests this possibility by the mere fact of the individual’s presence and participation in the IDF, it is yet to be seen how authorities will respond given both South Africa’s membership in the International Criminal Court (and its domestication of the Rome Statute granting it jurisdiction over these crimes) and its pending case of genocide against Israel before the International Court of Justice.

As has been recently pointed out by Nel, given the poor track record of prosecutions under the 1998 Act, it is open to question whether South Africa will indeed prosecute individuals fighting for the IDF. With the 2006 Act not yet in operation, this may serve as a further impediment to the government’s hard-line stance on South Africans involved in foreign armed conflicts. At the same time and despite bold statements, it would seem that authorities have a history of turning a blind eye to the involvement of South Africans in foreign armed conflicts. The ongoing Russian invasion of Ukraine, where it is speculated that several dozen South Africans are involved on either side, is another example of the government’s apparent inaction (see and here). Most notable however remains the involvement of South Africans in the conflict in Mozambique. South Africa’s selectivity and inaction raises serious questions about its lack of consistency in upholding its own legislation uniformly.