South Africa Takes Israel to Court

Welcome to Foreign Policy’s Africa Brief.

The highlights this week: DRC opposition disputes election results, Ethiopia and Somaliland sign a controversial deal on Red Sea access, and Senegal’s Supreme Court rejects Sonko’s appeal.

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South Africa’s application to the International Court of Justice (ICJ) seeking to have the court declare Israel’s military assault on Gaza a genocide will be heard starting on Thursday in The Hague.

Israel has called the allegations “baseless” and accused South Africa of “cooperating with a terrorist organization.”

States including Turkey and Jordan have backed the case. Malaysia publicly offered South Africa its support. Malaysia’s Foreign Ministry described the proceedings as a “timely and tangible step towards legal accountability for Israel’s atrocities.”

Israel finds it is having to defend itself against arguments based on a convention that was drawn up in part to prevent a repetition of the Holocaust, which killed 6 million Jews.

The application asked the ICJ to take interim measures to immediately suspend Israel’s military operations in Gaza and “take all reasonable measures” to prevent genocide. In its 84-page brief, South Africa cites alleged incitement by top Israeli officials, including the defense minister, Yoav Gallant, who referred to Palestinians in Gaza as “human animals,” as well as Prime Minister Benjamin Netanyahu’s comparison of Palestinians to the biblical story of the Amalek nation, which God ordered the Israelites to destroy.

Pretoria argues Israel’s military assault violates its obligations under the 1948 Genocide Convention, which defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”

The application condemns Hamas’s killing of 1,200 Israelis and foreign citizens and hostage-taking of around 247 people on Oct. 7 but argues that no attack can justify the killing of more than 22,000 Palestinians, including over 7,000 children—the number of dead at the time it was written.

Unlike previous cases at the International Criminal Court, which Israel has boycotted because it does not recognize that court’s authority, Israel has no choice but to appear in front of the ICJ as it is a signatory to the Genocide Convention and subject to the jurisdiction of the ICJ, the United Nations’ top legal body. Both sides are sending some of their best lawyers to The Hague. Pretoria is sending South African international law expert John Dugard, a former U.N. special rapporteur on human rights in the occupied Palestinian territories. Meanwhile, Israel will be represented at the ICJ by the British lawyer Malcolm Shaw, an expert on territorial disputes.

Israel is also sending Aharon Barak, a retired Israeli Supreme Court president who is a Holocaust survivor and a fierce critic of the Netanyahu government’s judicial reform plan—which adds to his credibility in the eyes of Netanyahu’s critics.

The application also raises possible reputational damage for the United States. As the International Crisis Group’s Brian Finucane argues “U.S. officials risk complicity if Israel uses U.S. support to commit war crimes.” The United States is increasingly isolated as one of the few countries that has stood resolutely behind Israel since the Oct. 7 Hamas attack and subsequent Israeli offensive in the Gaza Strip amid growing international criticism over the dire humanitarian crisis in Gaza.

“We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever,” White House National Security Council spokesperson John Kirby said last Wednesday.

Israel and South Africa’s animosity has deep roots. After Israel was founded, the country’s leaders cultivated close ties with newly independent African states while often condemning apartheid in South Africa. However, relations with most African nations soured after the 1973 Arab-Israeli War, while Israel’s ties with South Africa grew stronger as it began to sell large quantities of arms to the apartheid regime. Israel became a key ally and defense partner for the white supremacist government during the 1970s and 1980s, even as other countries began to impose sanctions on Pretoria. In November, South Africa’s Parliament voted to suspend diplomatic ties with the country until a cease-fire agreement in Gaza is reached.

The South African government, faced with domestic issues at home, has tried to assert itself as a moral beacon in the world, calling out the hypocrisy of the West over the war in Ukraine and campaigning for a multipolar global order where poorer nations have a voice.

While it is easy for some analysts to dismiss South Africa’s case, any ruling could set legal precedents since Pretoria is basing its petition in part on Gambia’s proceedings against Myanmar in 2020, in which Gambia successfully argued as party to the Genocide Convention that it has an obligation to act to prevent genocide against the ethnic Rohingya population in Rakhine State and therefore had standing. Myanmar had tried to argue that Gambia was not an “injured” party and therefore could not bring a case.

Since the war began, Israel has restricted the entry of medicine, water, and fuel to Gaza’s population of 2.3 million people, except for limited aid through Egypt that U.N. workers say falls far short of what’s needed with famine and disease around the corner.

By not seeking a definitive ruling—but only provisional measures under Article 74 of the ICJ rules—the threshold of what South Africa has to prove is lowered. The court could decide it does have jurisdiction to proceed with the case as in The Gambia v. Myanmar. It could also choose to impose some of the interim measures requested by South Africa without making a decision that Israel’s conduct in Gaza amounts to genocide.

Although ICJ orders are binding, they’ve not been enforceable. Russia has defied the court’s judgment to suspend military operations in Ukraine. Regardless of the ICJ’s eventual decision, Israel is becoming more isolated on the world stage.

Thursday, Jan. 11, to Friday, Jan. 12: South Africa’s petition accusing Israel of committing genocide in Gaza is heard by the ICJ in The Hague.

Saturday, Jan. 13: The 34th edition of the Africa Cup of Nations soccer tournament begins in the Ivory Coast, where the host nation takes on Guinea-Bissau.

Sunday, Jan. 14: Comoros holds presidential elections.

Wednesday, Jan. 17: Former Sierra Leone President Ernest Bai Koroma goes to court on charges of treason in connection with a failed coup in November 2023.

Hemeti’s Africa tour. Sudan recalled its ambassador from Nairobi on Thursday in protest of Kenyan President William Ruto’s hosting of talks with the leader of Sudan’s paramilitary Rapid Support Forces (RSF), Mohamed Hamdan “Hemeti” Dagalo. Hemeti has been touring African countries on his first known tour abroad since war broke out in April with the Sudanese Army led by Gen. Abdel Fattah al-Burhan.

On Friday, he met with Rwandan President Paul Kagame and later visited the Genocide Memorial Museum in the Rwandan capital, Kigali, which angered many Sudanese. The RSF has been accused of carrying out mass atrocities including systematic ethnic cleansing and rape. He has also visited South Africa, Uganda, Ethiopia, and Djibouti at a time when the Sudanese Army has lost ground to the RSF, which now controls most of the capital, Khartoum, nearly all of Darfur, and the city of Wad Madani. The war has displaced 7.3 million people.

Ethiopia’s Red Sea access. Somalia’s president, Hassan Sheikh Mohamud, on Saturday signed a bill nullifying a landmark preliminary deal between Ethiopia and the breakaway region of Somaliland.

Somaliland signed a pact last week to lease landlocked Ethiopia port access to the Red Sea and a naval base in the Gulf of Aden in exchange for Addis Ababa recognizing Somaliland as a sovereign state. Somaliland declared independence from Somalia in 1991 and established its own parliament and presidential elections but is not internationally recognized as a separate country. Somalis in the capital, Mogadishu, protested against the deal. The Somali government recalled its ambassador to Ethiopia and lambasted the deal as a “hostile move” and a breach of Somalia’s “territorial integrity.”

It seems the pact has also ruffled Somaliland ministers. Defense Minister Abdiqani Mohamoud Ateye resigned in protest and criticized Somaliland President Muse Bihi Abdi “for not consulting the council of ministers on the port deal with Ethiopia,” saying they “heard about it from the media.”

Ethiopian Prime Minister Abiy Ahmed has previously sparked a row with Eritrea over port access to the Red Sea, raising tensions in an already volatile Horn of Africa. The Arab League has come out in support of Somalia; meanwhile, the African Union urged both sides to de-escalate tensions. United Arab Emirates-based DP World had upgraded Somaliland’s Berbera port since winning a 30-year concession to run it in 2016 despite objections from Somalia. The UAE provided extensive military support to Ethiopia during its war with Tigray and is likely to unofficially support the deal.

Formal recognition by Ethiopia could allow Somaliland to begin lobbying other nations to recognize it—particularly in its business dealings. It also sets back hopes of a peaceful resolution between Somalia and Somaliland after both sides had agreed to work toward reaching a sustainable solution during talks in Djibouti last month.

Canceled votes in DRC election. The Democratic Republic of the Congo’s election commission has disqualified 82 candidates over alleged fraud and violence in the contested general election that took place Dec. 20. However, the opposition has called the entire election a “sham” and demanded a rerun amid widespread logistical problems and claims of electoral irregularities. President Félix Tshisekedi was reelected for a second term with 73 percent of the vote, according to the electoral commission’s published results.

Former provincial governor Moise Katumbi gained 18 percent of votes and Martin Fayulu, a former oil executive, received 5 percent. Tshisekedi came to office in 2019 after a disputed election that many international and local observers said he had lost to Fayulu. The country’s Constitutional Court heard a challenge to annul the presidential results  submitted last week by Théodore Ngoyi, who came last with 0.02 percent of the vote. The Court rejected the legal challenges and ruled Tuesday that Tshisekedi was the winner.

Senegal elections. Senegal’s Supreme Court on Friday rejected popular opposition leader Ousmane Sonko’s appeal against a libel conviction, potentially ruling him out of next month’s presidential election because of the conviction. Sonko was sentenced to six months in prison in May 2023 for defaming Minister of Tourism Mame Mbaye Niang after accusing him of stealing 29 billion CFA francs (about $47 million) from a government agency. In 2021, Sonko was charged with rape and making death threats to a massage parlor employee and subsequently convicted in June 2023 of “corrupting youth”—a crime that involves using one’s position of power to have sex with or encourage the debauchery of an individual under the age of 21—a lesser offense than the initial rape charge.

Sonko’s supporters say the convictions are politically motivated to eliminate him from the presidential race. Senegal’s Constitutional Council is set to publish a final list of cleared presidential candidates on Jan. 20.

Chad’s new interim prime minister, Succès Masra, a former opposition politician who joined the military administration, said he is giving up his salary. He announced on state TV that he would be donating his pay toward social scholarships in Chadian communities. Not long after, transitional legislator Bedei Toullomi announced he would also give up 50 percent of his salary. Masra recently returned from exile after staunchly opposing the military rule of Mahamat Idriss Déby. Opposition members accuse Masra of dashing hope of democracy by accepting the prime minister post and legitimizing the Déby dynasty.

Western Sahara’s forgotten conflict. The collapse of a 29-year cease-fire in 2020 marked a resurgence of simmering conflict between Morocco and the Polisario Front over the sovereignty of the Western Sahara. Pesha Magid and Andrea Prada Bianchi argue in New Lines Magazine that the world has largely ignored and forgotten this conflict. “The Sahrawi people have been stuck in diplomatic limbo while living in the refugee camps in Algeria,” they write.

Egypt’s cinematic history. The first-ever cinema show in Africa and the Arab region was screened at the Café Zawani in the Egyptian city Alexandria in November 1896. Egypt’s role in the movie industry became one of the most significant forms of its soft power, writes Mohamed Helal in Arab Reporters for Investigative Journalism. But censorship, state control, and monopolization have stifled the sector. In 1958, there were more than 350 cinemas in the country, but that number had fallen to just 53 in 2020, according to Egypt’s statistics agency.