Fugitive Saif al-Islam Gaddafi and the South African Mercenaries

Disturbing reports about the late Muammar Gaddafi’s son, Saif al-Islam Gaddafi, allegedly hiring South African mercenaries to help him escape from Libya, come as no surprise. South African mercenaries continue to be active in deadly conflicts across Africa, despite the fact that an Anti-Mercenary Act was drawn up as far back as 2006.

Published on 02 November 2011 in ISS Today

Sabelo Gumedze, Senior Researcher, Security Sector Governance Programme, ISS Pretoria Office  

Disturbing reports about the late Muammar Gaddafi’s son, Saif al-Islam Gaddafi, allegedly hiring South African mercenaries to help him escape from Libya, come as no surprise. South African mercenaries continue to be active in deadly conflicts across Africa, despite the fact that an Anti-Mercenary Act was drawn up as far back as 2006. The Act has still not been written into law due to inaction by President Jacob Zuma. This procrastination is extremely damaging to the efforts to curb mercenary activities.

It is clear that the South African Government has not prioritised the prohibition of mercenary activities in order to give effect to the values enshrined in the South African Constitution and international instruments. These reports corroborate the assertion that South Africa is in fact encouraging mercenary activities by its inaction to put a stop to the breeding of mercenaries within its borders. The destabilisation effect of mercenary activities within Africa is now well documented and the South African citizens continue be active in these mercenary activities.

How plausible are these rumours concerning Sail al-Islam? If one considers that mercenaries are driven by private gain, the rumours of Saif al-Islam hiring mercenaries not only to smuggle him out, but also to overthrow the National Transitional Council of Libya, are not far-fetched. In fact Saif al-Islam reportedly vowed to take revenge for his father`s death and this cannot be achieved without the use of mercenaries – in all likelihood South Africans.

If these rumours prove to be true, and if the Anti-Mercenary Act was in place, it would have been the ideal opportunity for South Africa to try these mercenaries and show its commitment to ridding the continent of mercenary activities.

The International Criminal Court (ICC) process against Saif al-Islam in itself could provide an opportunity to get to the bottom of the facts surrounding the alleged mercenary activity in Libya. However, the fact that South Africa has not promulgated the Anti-Mercenary Act will jeopardise any processes against the South African mercenaries allegedly hired by Saif al-Islam to face criminal charges in South Africa in terms of the Act. It must be noted that the Anti-Mercenary Act provides for extraterritorial jurisdiction, according to which any act constituting an offence under it and that is committed abroad is considered as having been committed in South Africa and the person who committed the act can thus be in tried in a South African court. This is an opportunity that would be missed by South Africa once the identity of the mercenaries involved in the Libyan conflict are revealed, possibly during the trial of Saif al-Islam by the ICC, that is, if he is eventually arrested and tried.

It is almost four years that South Africa’s former President Thabo Mbeki assented to the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act No. 27 of 2006 (Anti-Mercenary Act).

The Anti-Mercenary Act clearly states (in section 2) that:

No person may within the Republic or elsewhere –

a) participate as a combatant for private gain in an armed conflict;

b) directly or indirectly recruit, use, train, support or finance a combatant for private gain in an armed conflict;

c) directly or indirectly participate in any manner in the initiation, causing or furthering of –

     i) an armed conflict; or

    ii) a coup d’état, uprising or rebellion against any government; or

d) directly or indirectly perform any act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.      

This Anti-Mercenary Act is still not in force because the President of the Republic of South Africa has not as yet determined the date (by Proclamation in the Gazette) upon which it will come into operation. What seems to be preventing the Anti-Mercenary Act from entering into force is the process of making the regulations by the President that will bring the Act into operation. The President’s inaction in the process ensuring that the Anti-Mercenary Act comes into operation is regretted. As American entrepreneur Victor Kiam observed, ‘procrastination is opportunity`s natural assassin’.

The Wonga coup of 2004, which involved British mercenary Simon Mann and South African Nick du Toit is still vivid in our minds. In 2009 President Zuma was reported to have justified the release of Mann and du Toit in Equatorial Guinea on the basis that President Theodore Obiang Nguema of Equatorial Guinea had learnt from former President Nelson Mandela to forgive. This was an unfortunate statement, to say the least, particularly because of the dangers associated with the use of mercenaries in staging coups in Africa. According to the United Nations working group on the use of mercenaries as a means of violating human rights and impeding the enjoyment of the right to self-determination, such a move of pardoning mercenaries was not in accordance with the Government of Equatorial Guinea’s obligation and declared intention to hold mercenaries accountable for their activities.

In the same year, 2009, there were reports of South African mercenaries being recruited to reinstate deposed Malagasy President Marc Ravalomanana. These mercenaries are reported to have held meetings with the deposed president in Swaziland where he had fled to after being deposed by Andry Rajoelina, the President of the High Transitional Authority of Madagascar. As argued before, the reports on the use of South African mercenaries in Africa remains an indictment to the South African Government that has procrastinated in bringing into operation the Anti-Mercenary Act.