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Morris Odhiambo: Weekly Reflections

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Morris Odhiambo’s Weekly Reflections!

Like millions across the world, I was glued to my television set yesterday evening to listen to the verdict of the International Court of Justice (ICJ) on the latest request made by the Republic of South Africa for provisional measures in regard to Israel’s war in Gaza.

Yesterday was the fourth time the court was considering and issuing such provisional measures. The past measures have been ignored by Israel and its backers in the West, most prominently the US and UK.

The court granted most of the measures the Republic of South Africa had asked for. It ordered Israel to immediately halt its offensive in Rafah in southern Gaza. Though it fell short of ordering a halt of military operations in the whole of Gaza, this was still seen as another step in the right direction for an institution whose role in mired in global power play.

Secondly, it called on the state of Israel, led by Prime Minister Benjamin Netanyahu, to allow international investigators to enter Gaza to conduct inquiries.

Finally, it allowed the request by the Republic of South Africa to open up the Rafah crossing for “unhindered provision of basic services and humanitarian aid.”

Since the first time the ICJ issued provisional measures requested by the Republic of South Africa (26 January 2024), the world has been caught in suspense. It has been caught between those who are genuinely concerned with the ongoing killings in Gaza and those who are skeptical about the ability of international institutions to safeguard the rights of the weak.

It has also been caught between those who have a religious faith in the eternal greatness and goodness of the state of Israel, and those who have come to accept the facts on display without the blinkers of religion and established mythology.

In many ways, the “tussle” between the Republic of South Africa and the state of Israel that has played out at the ICJ since December 2023, is a test of how the world’s institutions work. It is a test of whether rhetorical claims to human rights and justice, “the responsibility to protect” and other such high sounding mantra, can match reality and the needs of the moment in regard to issues of human rights, justice and peace especially when it comes to the vulnerable and powerless.

Last week, the prosecutor of the International Criminal Court (ICC), Karim Khan, asked the court to issue arrest warrants for two leaders of the state of Israel, and three officials of the Hamas Movement in Palestine.

Even though for some time, there have been expectations that Khan would take this step, it still came as a shock to many observers. Some news channels described the move as a “stunning announcement.”

In widely publicised interviews, Khan revealed that he had received threats from representatives of powerful Western governments. He has been reminded that the ICC was formed to try Africans and leaders considered to be against Western interests such as Russia’s Vladimir Putin, who was indicted in March last year in view of the war in Ukraine.

Though the leadership of Hamas also criticized the move by the ICC prosecutor, the focus has largely been on Benjamin Netanyahu and the state of Israel in general. The main reason for this is because of Israel’s closeness to the United States of America (USA).

The ICJ is the world’s leading court that falls under the United Nations structure. It is responsible for adjudicating disputes between nations. The ICC, on the other hand, is the world’s first permanent criminal tribunal, inspired by the Nuremberg and Tokyo tribunals convened after the so-called 2nd World War (or 2nd European War depending on one’s ideological standpoint!).

My discussion today comes on the backdrop of the events highlighted above. It is based on two concepts: the so-called Rules Based International Order and International Law. Although I have often used the two concepts in my reflections, I have never made an attempt to differentiate them.

In his article, South African law scholar John Dugard poses the following questions:

“What is this creature, the ‘rules-based international order’, that American political leaders have increasingly invoked since the end of the Cold War instead of international law? Is it a harmless synonym for international law, as suggested by European leaders? Or is it something else, a system meant to replace international law that has governed the behaviour of states for over 500 years?”

The so-called rules based international order is a political construct guided by the distribution of power in the global system. International law is understood to be a set of binding rules, norms, and standards that guide relations between states and other relevant bodies, including international organisations.

As an avowed realist, I will not pretend that powerful states do not enjoy a bigger say in formulating international law. I have said many times that international institutions are at the beck and call of the powerful. However, recent events have demonstrated to me that once rules are set, even the powerful who supervise their formulation may come under their scrutiny and control.

But the skepticism expressed by many on the African continent about international law and institutions is not without foundation. South Africa has been criticised for its involvement in the Gaza conflict with critics, pointing out that it should utilise its resources to deal with the conflicts within the African continent.

But the critics are wrong for the following, among other reasons:

First, African states can not reclaim their agency if they do not actively confront the current realities informed by the hegemony of the Western world. Thus, the engagement of South Africa in the Gaza theatre must be treated the same way as its involvement in the BRICS Plus formation. South Africa’s agency in these actions must not be underestimated or undermined.

Second, the conflicts on the African continent are majorly engineered by powerful states in their quest for Africa’s resources. The millions upon millions who have perished in the Democratic Republic of Congo have been victims of this scramble.

It follows that these conflicts can not be resolved by simply turning inward. African states must build a powerful voice on the international arena. The African Union’s commitment to “silence the guns” by 2020 failed partly because you can not silence guns whose manufacture and supply you have no control over!

Third, if a country foreign policy is to be based purely on pragmatism, then the Kenyan example should be emulated by all. Since President Ruto came to power, Kenya has supported each and every action demanded by the West and the US in particular. The US ambassador in Nairobi has become something like a co-president! This has earned President Ruto the first visit in over 15 years by an African head of state to the hallowed corridors of the White House!

The choice for the African people is clear: to challenge a world order that has completely rubbished the agency of the African state, or to kowtow to it and continue giving it legitimacy!

Do not hesitate to debate me on this issue!

Morris Odhiambo is a scholar, journalist, writer, consultant, and social rights defender. He is the founding Vice-Chairman and a member of the Diplomacy Scholars Association of Kenya (DIPSAK).

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