Kenya has taken two important steps in respect of international justice. President William Ruto had a telephone conversation with the Israeli Prime Minister.
The first concern conveyed was on the continuous unchecked and horrifying attacks by Israel on remnants of unarmed displaced Palestinian refugees cornered in Rafah, south Gaza.
"The Head of State expressed Kenya's deep concerns about the deteriorating situation in the region, noting that the loss of lives had reached unacceptable levels." (KBC, 1 February 2024).
This unacceptability reflected the position in law that the right of a state to defend itself did not extend to a disproportionate response.
The continuing Israeli attacks have directly caused the death of 30,000 Palestinians, majority of whom are civilian women and children.
Israel claims all Palestinians are supporters of Hamas and therefore their deaths are an unfortunate consequence of its right to defend itself against Hamas.
But the US itself has made the distinction clear. President Joe Biden confirmed, "The overwhelming majority of Palestinians are not Hamas. And Hamas does not represent the Palestinian people." (X, 23 February 2024). Yet Israeli attacks continue. These attacks by Israel are in disobedience of a binding order of the ICJ. There could be a perception internationally that Israel is not making a genuine claim of self-defence but is making that claim to achieve an ulterior motive, perhaps to extend control over land which it occupies but is not entitled to do so in international law.
Such ulterior motives in law constitute an abuse of the law and of court processes. These nullify the claim of self-defence, and also affect the perception of the legitimacy of Israel's other public statements.
Israel appeared in the International Court of Justice in the case and application brought by South Africa.
It exercised its right of reply and was heard in full. It exercised its right to appoint a Judge nominated by it to the Court who could even take part in the decision.
It did not complain against the fairness of the hearing. The decision came out against it. Its disobedience thus has neither moral nor legal justification.
The second important statement President Ruto made is the key point in respect of the search for a permanent solution to this 76-year long tragedy. Ruto said, "I underscored Kenya's belief in a two-state solution, that would allow a peaceful side-by-side existence of the states of Israel and Palestine."
He added, "I am hopeful of an immediate end to the conflict in Gaza. Kenya abhors all forms of terrorism, and it is our principled position that they must be eradicated."
We know something about terrorism - Westgate, Dusit, Garissa, the US Embassy in Nairobi, Boni - and through these we have lost more lives than the Israelis lost on 7 October 2023, (1,200 lives), over the same period. But while we help the US as a partner here, we must understand that Israel interprets these words by Kenya (and the US) as giving approval to Israel to continue bombing Rafah.
This is because, Israel says, all Palestinians are 'terrorists', and therefore Kenya is agreeing with Israel that they, being terrorists, must be 'eradicated'. Beware. The youth of our country think otherwise.
Social media is bringing Israel's killings on to their personal screens day after day. Kenya's youth are clear about who the bad guys on that scene are, and who are being hurt. They strongly support all moves to protect Palestinians, not to approve 'eradication'. And our 'principled position' on eradication is always subject to international law.
A motion has to be brought in our Parliament, setting out that the House clarifies yet affirms the President's stand. Not a single MP has spoken out in public on the carnage, famine and medical disaster in Gaza.
It shows our government MPs' lack of interest in any suffering outside of Kenya, while cheering on their leader's travel all over the world to collect billions of shillings, more money than Gaza is now receiving, and of which even a fraction would save lives in Gaza.
The failure of opposition MPs to have moved such a motion in the House, shows their loss of political clarity on suffering outside of Kenya, while cheering on their own leader's travels across Africa seeking votes for the position of Africa's champion, without remembering that Rafah gate opens on to Africa.
-The writer is senior counsel
