UK Court Rejects Attempt to Privately Prosecute Dual Nationals for IDF Service
- Rochelle Direnfeld
- Apr 30
- 4 min read
In an April 8, 2026 ruling, Senior District Judge Paul Goldspring of the Westminster Magistrates’ Court in the United Kingdom, denied an application by the International Centre of Justice for Palestinians (ICJP) to issue a summons under the Foreign Enlistment Act of 1870 against a dual British-Israeli national who had returned to Israel on October 8, 2023, to rejoin his IDF unit as a reservist. ICJP is self-described as an “independent organisation of lawyers, academics and politicians that works to promote and support Palestinian rights.”
In Canada, a similar unsuccessful attempt was made by “pro-Palestinian activists” to initiate a private prosecution against Sar-El Canada, an organization that coordinates volunteers to assist in civilian support roles in Israel. As well, Just Peace Advocates, associated with ICJP has called for the investigation of any “Canadian who has fought in Israel’s genocide in Gaza” under the Crimes Against Humanity and War Crimes Act. Canadian MP, Heather McPherson has launched a petition to the Minister of Justice to commence an investigation into Canadian citizens and residents who served in the IDF. Just Peace Advocates is also one of the groups seeking to strip Jewish schools of their charitable status, alleging that they improperly support the Israeli military.
There are significant differences between the legislative schemes that exist in England and Canada. Nonetheless, the ICJP judicial decision is instructive.
The English Foreign Enlistment Act of 1870 criminalizes the conduct of British subjects, empire-wide, who enlist in or recruit for the armed forces of a foreign state at war with another state at peace with the UK, reflecting a neutrality-based framework rather than a blanket ban on foreign service.
In what can only be described as an excoriating judgment, the court held that ICJP’s use of the criminal courts as “a platform for political posturing” was “an abuse of the process of the court, driven by an improper motive and facilitated by serious breaches of the duty of candour.” It was also “legally flawed, evidentially deficient, and procedurally defective.” The court found that the “dominant motive” behind ICJP’s application was “the advancement of a political and ideological agenda, not the pursuit of justice for a specific criminal act.”
The English legislation was enacted in the Victorian era to prevent British nationals from being deployed as mercenaries across the globe and to maintain British neutrality, The court, in its reasons for judgment, was clear that the legislation does not apply to dual nationals serving in the military of their other state of nationality. For a dual national, service in the military of their other state is not foreign enlistment in any meaningful sense.
ICJP argued that the term “British subject” means any Commonwealth citizen, but the court dismissed the argument as “an absurd overreach that would criminalise, for example, Indian or Pakistani Commonwealth citizens enlisting in their own national armies.”
Further, the proposed defendant did not “enlist” on October 8, 2023, as alleged in the criminal complaint. He was already a reservist in the IDF prior to October 8, 2023. His engagement in the IDF occurred years earlier, after immigrating to Israel, adopting Israeli nationality and enlisting in the IDF as required by Israeli law. His return to the IDF on October 8, 2023, was part of his ongoing obligation as a reservist and an Israeli citizen.
In addition, the legislation requires that the enlistment take place “without the license of Her Majesty.” However, successive UK governments have explicitly stated in Parliament that the legislation does not apply to British nationals serving in the IDF. These statements “constitute the functional equivalent of a license from Her Majesty.”
Another element of the enlistment offence in English law is that the defendant enlists with a foreign state “at war” with a state at peace with the United Kingdom. The court held that there was no evidence that the government had determined that Israel was in a state of war with Palestine (notwithstanding the UK’s recognition of Palestinian statehood). The court concluded that Israel was at war with Hamas and Hezbollah, both recognized terrorist organizations, with whom the United Kingdom was not at peace.
Most condemnatory was the court’s finding that ICJP committed several “profound and serious” breaches of duty of candour owed by a private prosecutor to the court. In addition to ICJP’s failure to alert the court to the multiple statements by the UK government indicating its consent to dual national British Israelis serving in the IDF, ICJP also failed to disclose to the court:
The Crown Prosecution Service’s guidance that the legislation does not apply to “enlistment in a foreign government’s forces which are engaged in a civil war, or combatting terrorism or internal uprisings,” and
ICJP’s prior unsuccessful attempts to involve the police.
The court also found that one of ICJP’s expert witnesses, Dr. Mandy Turner, was far from independent, stating, “Dr. Turner’s involvement in an ICJP WhatsApp group, combined with her public statements and social media activity, reveals her to be a campaigner and activist committed to the political agenda pursued by this prosecution, rather than an independent expert.” He found her evidence was “partisan and misleading.”
The judgment delivers a firm warning regarding the inappropriate use of criminal prosecutions to further political objectives. Courts must not be exploited as arenas for promoting political campaigns, especially in cases that involve complex and sensitive geopolitical issues. This admonition reflects the judiciary’s commitment to ensuring that legal proceedings remain focused on the fair and impartial application of the law, rather than being diverted for political ends.
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About the Author
Rochelle Direnfeld is ALCCA’s Senior Criminal Counsel. She was called to the Ontario bar in 1990 and has served in the Ontario Public Service for over 32 years as an assistant crown attorney, deputy crown attorney, crown counsel, and finally as Deputy Director for Toronto Crown Attorneys in the Criminal Law Division of the Ministry of the Attorney General. Rochelle retired from public service at the end of 2023. During her career, she prosecuted a wide variety of Criminal Code cases in the Ontario Court of Justice, Superior Court of Justice, and the Ontario Court of Appeal.
Rochelle is also the Chair of the Canadian Criminal Law Working Group, a national initiative bringing together leading criminal lawyers to strengthen the legal response to antisemitic hate crimes and support victims across Canada.
She has also been selected to join the Toronto Police Service Board’s Jewish Community Advisory Table, an initiative aimed at strengthening dialogue and collaboration between the Jewish community and the Toronto Police Service on issues of community safety and policing.