“Arab* gevaar” as a salve for the conscience: A response to Anton Fagan

Caitlin Le Roith defends UCT Law Faculty statement, says IDF's campaign against Gazans is of a genocidal nature

*I use the term “Arab” here because nowhere in the piece under response does Fagan refer to Palestinians as “Palestinians”, instead choosing to refer to them as “Arabs” (likely a product of the long-standing project of political Zionism and its proponents’ attempts to erase the distinct Palestinian identity, culture and indigeneity to the land of historic Palestine by casting Palestinians as just another set of “Arabs” who have no special connection to their homeland).

On 17 November, over 70 members of staff at the University of Cape Town’s (UCT) Faculty of Law issued a statement (the Law Faculty statement) about Israel’s ongoing war on Gaza. In it, the signatories, of which I was one, expressed “how deeply troubled [we are] by the ongoing violence in Palestine”; that we “urgently call for an immediate ceasefire and the swift passage of humanitarian aid to provide essential support for those in need”; that we believe there is the need for accountability in the form of a “fair and thorough investigation into international crimes committed during this conflict”; and that “the international community [ought to] work collaboratively for a just and lasting resolution to the conflicts (sic), respecting the rights and aspirations of all involved parties.”

Just short of three weeks later, on 7 December, the UCT Council issued its own statement on the matter. It too calls for an immediate ceasefire, the release of all civilian hostages and those Palestinians detained without trial, humanitarian access to Gaza, an international war crimes investigation, actions to be taken against perpetrators of those war crimes, and an “international conference on seeking a resolution to the Israeli-Palestinian conflict that seeks to enforce justice and security for Palestinians and Israelis”.

Less than a week later, on 12 December, Anton Fagan, the WP Schreiner Professor of Law at UCT’s Faculty of Law, published a response to both statements on Politicsweb under the title ‘Jew blaming and shaming as a salve for the conscience’. There are a lot of things in Fagan’s piece that one can take exception to. To name a few, it contains basic factual and historical inaccuracies, several logical fallacies (which is ironic given his seeming commitment to analytical rigour, evidenced in part by his readiness to accuse his opponents of “muddled thinking”), presents unsubstantiated allegations as incontrovertible truths, and omits inconvenient facts.

Furthermore, it sees Fagan concoct an elaborate fantasy as to why his colleagues in the Law Faculty did or did not do certain things, attribute this concocted position to them as if it were their own, and then proceed to argue against that concocted position as if it was actually held by them.

It is impossible to comprehensively respond to Fagan’s piece within the confines of this article, so I am forced to be discriminating. I have chosen to respond here to three things: first, what I call here Fagan’s “main claim” in respect of the Law Faculty statement. Second, his raising (and then rejecting) the possibility that its signatories are anti-Semitic. And third, his commentary on war crimes.

Treat like cases alike

As I understand it, Fagan’s main claim in relation to the Law Faculty statement is a criticism of its signatories to the effect that they are “unequal[ly] concern[ed] about the violence in Israel, on the one hand, and Gaza and the West Bank, on the other.” Let us assume that this claim is sound and that it follows from the fact that the statement declares its signatories to be “deeply troubled by the ongoing violence in Palestine” and states that they “cannot in good conscience ignore the worsening humanitarian crisis in Gaza and the West Bank” but fails to make similar declarations about the violence of 7 October in Israel that its signatories are “unequal[ly] concern[ed]” about the two episodes of violence. The question that then becomes worth considering is whether the criticism he levels at his colleagues has any force.

In making this criticism, Fagan relies on a particular conception of equality – that of formal equality – which is captured in the adage “treat like cases alike”. By accusing the signatories of the Law Faculty statement of being “unequal[ly] concern[ed]” between the violence in Israel, on the one hand, and violence in Palestine, on the other, he presumes that these two cases of violence are of a kind about which one ought to be equally concerned. But are these two cases of violence alike? Well, no. While both involve violence against civilians, by the time the Law Faculty statement was released, there was a fundamental qualitative difference between these two cases of violence against civilians, one which renders them unalike.

By 17 November, when the statement was released, the violence that Israel was perpetrating against Palestinian civilians was of a genocidal nature. In fact, as early as 13 October, Raz Segal, an Israeli historian of genocide, had already gone so far as to refer to what was happening in Gaza as a “textbook case of genocide”. Segal was not alone in this assessment, as it was also shared by Craig Mokhiber, who, in his letter of resignation from his position as Director of the New York Office of the High Commissioner for Human Rights dated 28 October, wrote of Gaza that “[t]his is a text-book case of genocide”.

The claim of genocide might raise a few eyebrows or be seen as provocative, but it shouldn’t, as even a (necessarily preliminary, given the forum) legal analysis will show (for a more comprehensive, though by now slightly dated, legal analysis see this emergency briefing paper by the Centre for Constitutional Rights).

The crime of genocide is defined in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. It therefore has two components – first, the commission of particular acts against a particular national, ethnic, racial or religious group; and second, a particular mental state when committing those acts against that group (namely, that the party committing those acts against that group did so with the intention of bringing about the destruction of that group, in whole or in part).

The Convention lists the following five acts which constitute acts of genocide: “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

Now, given the evidence at our disposal as of the date the statement was released, it was clear that Israel had been (and, incidentally, still is) engaging in a genocide in Gaza. That the group which Israel is targeting (i.e., Palestinians) constitutes a “national group” is uncontroversial, unless one is a fanatical ultra-Zionist who denies the existence of a Palestinian nation (like, for example, Israel’s current Minister of Finance Bezalel Smotrich, who, in March 2023, said “[t]here is no such thing as a Palestinian people”).

Of course, the Palestinians being subjected to Israel’s genocidal acts – namely, the Palestinians in Gaza – form only a part of the larger Palestinian nation (according to the Palestinian Central Bureau of Statistics, there are approximately 14.3 million Palestinians worldwide, of which approximately 2.2 million reside in Gaza). Therefore, to be accurate, Israel is targeting a “part” of a “national group”.

As to the acts of genocide, there was ample evidence that Israel had been committing three of the five by the time the statement was released (it is worth mentioning here that the commission of just one of the five acts is sufficient to satisfy the first component of the crime). The first act is killing members of the group. As of 17 November, Israel had killed at least 11 078 people in Gaza, of whom 4 506 were children, as part of its assault on Gaza.

At that point, Israel’s onslaught had been ongoing for 42 days, thus meaning that, on average, it was killing about 263 people per day in Gaza, of whom 107 were children (to reiterate, Israel was killing, on average, about 107 children per day). Overall, that’s about 0.5% of Gaza’s population wiped out in just 42 days. 0.5% of a population might not seem like a lot, but if 0.5% of South Africa’s population were to be killed, that would translate to about 310 000 people. Perhaps this gives you a sense of how significant a proportion of the population of Gaza that 11 078 figure represents.

The second act is causing serious bodily or mental harm to the group. Last year, the World Bank published its findings from the Palestinians’ Psychological Conditions Survey in the West Bank and Gaza — which included “very high” prevalence of mental health problems and a close relationship between poor mental health and “worse economic outcomes” and “exposure to violent conflict and traumatic events.”

However, one need not be aware of these findings (and one need not be an expert in trauma and mental health) to see how, amongst the many other cruelties that Israel has inflicted on the Palestinians in Gaza since 7 October, having to live with the terror of not knowing if one’s home will be the next one to have a bomb dropped on it must be something that causes serious psychological damage.

When it comes to acts causing serious bodily harm, as of 17 November, Israel had injured 27 490 Palestinians in Gaza, in just 42 days. To speak of Israel “injuring” this number of people is to mask the extent of many of these injuries. Many (though, to be sure, not all) of these people were maimed by Israeli airstrikes or Israeli ground forces.

By then, there were a significant number of stories that had come out of Gaza detailing how, amongst other catastrophic injuries, people there were having their limbs amputated, suffering severe burns over significant portions of their entire body, and being left paralysed as a consequence of Israel’s assault on Gaza’s civilians and civilian infrastructure.

The third act is deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. The International Criminal Court’s (ICC) Elements of Crimes document states that ‘“conditions of life’ may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes”.

To see that Israel had, by 17 November, deliberately deprived Palestinians in Gaza of the resources indispensable for their survival (and thus imposed on them conditions of life calculated to bring about their physical destruction), we need look no further than Israel’s Minister of Defence, Yoav Gallant, who, without even a hint of compunction, informed the world’s media on the 9 October that “we [i.e., Israel] are imposing a complete siege on Gaza, there will be no electricity, no food, no water, no fuel, everything will be closed”. And indeed Israel proceeded to do as Gallant decreed, with the predictable consequences for Gaza’s population following soon thereafter.

Having established that Israel had been committing three of the five acts of genocide against a part of the Palestinian nation, the question now becomes were they committing these acts with the intent of bringing about the destruction of the Palestinians of Gaza?

Now, in response to this question, an apologist for Israel’s crimes might argue that these acts were not carried out with the intention of destroying Palestinians in Gaza but rather were carried out in furtherance of Israel’s (proclaimed) war aim of “destroying Hamas”, with Gaza’s civilian population merely being what some choose to refer to as “collateral damage” in this campaign. However, that argument is contradicted by the words of high ranking Israeli government and military officials, whose public utterances since 7 October expressly indicate that their genocidal actions were being accompanied by genocidal intent (that is, an intent to target and destroy the entire population of Gaza, not just Hamas). What evidence do we have for this?

Well, as early as 9 October, we have the aforementioned Gallant announcing that “we [i.e., Israel] are imposing a complete siege on Gaza, there will be no electricity, no food, no water, no fuel, everything will be closed. We are fighting human animals and we will act accordingly”. Of course, cutting off electricity, food, water and fuel to Gaza is an action targeted towards the entire population of Gaza, not Hamas. Moreover, there is only one eventuality which can obtain when you deny people things that it is quite literally impossible for any human being to live without – namely, death.

Seemingly seeking to outdo himself, a day later, on 10 October, Gallant followed up his earlier announcement of a “complete siege on Gaza” by saying that “Gaza won’t return to what it was before. We will eliminate everything.” Notice, not “Hamas won’t return to what it was before”, but instead “Gaza won’t return to what it was before” (own emphasis); and not “we will eliminate Hamas”, but rather “we will eliminate everything (my emphasis)”. Can one be any more explicit in revealing their genocidal intent than by informing us that their actions are being undertaken with a desire to “eliminate everything” in a particular geographical area?

Also on 10 October, we have Israeli newspaper Haaretz reporting that Israel Defence Forces (IDF) spokesman Rear Admiral Daniel Hagari had said of Israel’s bombing campaign in Gaza that “[t]he emphasis is on damage and not on accuracy”. In other words, Israel’s concern is not striking military targets (i.e., accuracy), but rather striking everyone and everything in Gaza, be it a military target or civilians and civilian infrastructure, in the name of causing damage to everyone and everything in Gaza. Here again, we have an Israeli official revealing that Israel’s bombing campaign in Gaza (i.e., the thing which is responsible for most of the killing we have seen there) is being undertaken with a mind to annihilating everyone and everything there.

October 10 ought to go down as a day of shame in the annals of Israeli military history, as that day also saw IDF Major General Ghassan Alian, in a video published on an official Israeli government X (formerly Twitter) account, inform the citizens of Gaza that “[h]uman beasts are dealt with accordingly. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell – you will get hell.”

Echoing Gallant, on 12 October, we have the Guardian reporting that Israel’s Energy Minister, Israel Katz, had stated of Gaza that “[no] electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter”. Again, an Israeli cabinet minister clearly expressing an intention to deprive Gaza’s population of the resources necessary for their survival.

The piece de résistance of high Israeli officials’ genocidal utterances was delivered by none other than Israel’s Prime Minister himself. On 28 October, in a speech announcing what he called the second stage of his country’s war, Benjamin Netanyahu stated that “[y]ou must remember what Amalek has done to you, says our Holy Bible. And we do remember.”

The reference is to a biblical story in which, after the Israelites had been attacked by the Amalekites, God instructs the Israelites to take revenge on the Amalekites in the following terms: “[n]ow go and attack Amalek and utterly destroy all that they have; do not spare them, but kill both man and woman, child and infant, ox and sheep, camel and donkey.”

Of course, for Netanyahu, “Amalek” refers to Gaza’s Palestinians. It is they whom he has in mind when invoking this story. It is Palestinians in Gaza that must have all that they have “utterly destroy[ed]” by his military, it is Palestinians in Gaza who must “not [be] spare[d]”, and it is Palestinians in Gaza whose every “man and woman, child and infant” must be killed.

To be clear, this is just a partial account. But, from this sample alone, there is ample evidence pointing towards genocidal intent on the part of those Israeli officials commanding Israel’s assault on Gaza. This, together with Israel’s genocidal actions, gives credence to Segal and Mokhiber’s claim – made before the release of the Law Faculty statement on 17 November – that what was unfolding in Gaza was a “textbook case of genocide”.

All of this is to say, returning now to the original point, that there is a qualitative difference between the violence in Gaza and the violence in Israel, a difference which renders those cases of violence unalike. The “treat like cases alike” criticism therefore loses its force vis-á-vis the November 17 statement despite appearing to be powerful at first glance: the violence in Gaza is genocidal, whereas the violence in Israel wasn’t. So, there exists a valid ground for being unequally concerned about these two cases of violence against civilians.

Notice, the claim here is not that there is a valid ground upon which to be unequally concerned about the victims of these two cases of violence. All human lives – irrespective of race, gender, religion, class, nationality, political beliefs – are of equal value. Therefore, there is no valid reason to care more about the taking of civilian X’s life over that of civilian Y. And by extension, there is no valid reason to care more about the killing of a Palestinian civilian than an Israeli civilian (and vice versa).

However, the same logic does not hold true when assessing different episodes of violence. When one turns to examine two different episodes of violence against civilians, there can be strong reasons to be more concerned about one episode than another. As to the two episodes of violence we are confronted with here, there is a strong reason to be unequally concerned, especially at the time the statement was issued — it is that the violence against Palestinians in Gaza is genocidal in nature.

Add to this the fact that the Palestinians in Gaza, half of whom are children, do not have an army, do not have an air force, do not have a navy, do not have air defences, and are concentrated in a densely populated open-air prison. On the other hand, the actor perpetrating the violence against them is a nuclear-armed state with a highly sophisticated military that is being supported wholeheartedly in its offensive by another nuclear-armed state. Bad as the attack on 7 October was, it was not genocidal. This distinction, to my mind, provides a morally legitimate basis upon which to be more concerned about the case of post-7 October Palestine, as an episode of violence against civilians, than the case of 7 October Israel.

A charge of anti-Semitism?

After reaching the conclusion that the signatories of the Law Faculty statement were “unequal[ly] concern[ed]” about the violence in Israel and Palestine, Fagan raises two possible explanations for this. The first possibility, which he rejects, is that we are consciously or unconsciously anti-Semitic (and, as such, are not as concerned about the violence in Israel because the vast majority of victims in this case were Jewish).

The second possibility, which he does not reject, is that we believe that the victims on 7 October were, on some level, morally responsible for the violence that was inflicted upon them, and therefore, correspondingly, that the perpetrators’ moral responsibility for their actions is diminished.

To the possibility that conscious or unconscious anti-Semitism is driving our “unequal concern”, Fagan is explicit in his rejection. In respect of the former, he writes, emphatically, “my colleagues are not anti-Semitic, at least not consciously so”. To the possibility that we might be unconsciously anti-Semitic, he offers a less emphatic, but nevertheless clear rejection, writing “I am not sure that subliminal anti-Semitism is a real possibility”. But, given the forcefulness of his rejection, one is left to wonder why Fagan would feel the need to raise this as a possible explanation for our “inequality of concern” to begin with?

To this question, only Fagan can provide an answer. Raising anti-Semitism as a possible explanation serves to implicitly legitimise the charge levelled by apologists for Israel’s crimes the world-over against almost anyone who expresses concern for the victims of those crimes, namely, that their concern for Palestinians is born of their hatred of Jews (I say “almost anyone” here because the anti-Semitism charge is reserved for non-Jewish advocates of Palestinian rights, whereas Jews, like myself, are charged with being “self-hating Jews” – one wonders whether Fagan would reject conscious or unconscious self-hatred as a possible explanation as well?)

So, having raised the possibility of anti-Semitism (and having given the issue sustained attention over three paragraphs of his response), it is entirely disingenuous of Fagan to say in his coda that his colleagues focusing on anti-Semitism in responding to him is a “red herring”. Despite personally rejecting it, he presents anti-Semitism as a legitimate possible explanation for their actions. In light of this, and in light of the fact that many unfortunately continue to give credence to the anti-Semitism charge, I feel the need to briefly engage the issue of anti-Semitism vis-á-vis criticising the State of Israel.

Opposing Zionism, a political ideology which emerged out of the social milieu of 19th Century Europe and the rise of nationalist movements during that period, and/or the existence of the State of Israel, the political entity which represents the realisation of the principal aspiration of that political ideology (a political entity which, as it happens, is a settler-colonial apartheid regime with a system of legislated Jewish supremacy), and/or the State of Israel’s policies and practices is not anti-Semitic (or, in my case, is not a form of self-hatred).

Anti-Semitism is discrimination or prejudice against Jewish people on the basis that they are Jewish. Importantly, pre-Zionism, Jews were never considered to be (and in the main never considered themselves to be) a nation or national group (national characteristics, like a geographical territory in the form of a state, were assigned to Jews by proponents of Zionism in Europe in the 18th century).

Put somewhat crudely, there is nothing Jewish about having a “Jewish state” in the land of historic Palestine and there is no historical, religious, cultural or ethical reason to support the conflation of Judaism and Zionism. Therefore, opposing the latter can never, in and of itself, constitute a form of prejudice against, or antipathy towards, the former.

Finally, and perhaps worst of all, those who seek to conflate anti-Zionism with anti-Semitism are effectively seeking to force Palestinians to endorse the ideology that is responsible for their displacement, dispossession, colonisation and unending subjugation. If anti-Zionism is anti-Semitism, then, in order for Palestinians to avoid being anti-Semitic, it follows that they have to accept the legitimacy of a political ideology that, amongst countless other injustices, provided the intellectual grounding for the mass expulsion of 750 000 of their ancestors from their own homeland between 1947 and 1948, relegates those who were not expelled to perpetual second-class status, is responsible for their occupation, and advocates for them to never return to their land and their homes.

War crimes? What war crimes?

The final aspect of Fagan’s piece that I have selected to respond to is his treatment of the claims made in the UCT Council statement that Israel has committed war crimes in Gaza. The statement calls for “an international investigation into war crimes by all parties engaged in this conflict, and consequent actions against perpetrators (my emphasis)”, condemns “the disproportionate and deliberate attack by Hamas on Israeli civilians”, and mentions the “disproportionate and deliberate Israeli attack on civilians and civilian infrastructure in acts of collective punishment in Gaza” and the “[t]he deliberate destruction of hospitals”, which it says “can only be seen as a war crime, as is blocking access to food, water and fuel [and using these] as instruments of war”.

Notice, UCT Council neither calls for Israel alone to be investigated for war crimes, nor does it preclude the possibility that Hamas committed war crimes. In fact, the UCT Council statement makes clear that it (UCT Council) believes that both Israel and Hamas have committed war crimes during the current spate of violence.

Much like the UCT Council, Fagan also emphasizes the need for a thorough investigation into war crimes. However, unlike the UCT Council, he is skeptical about whether Israel has committed the war crimes that the UCT Council believes it has committed in Gaza (or, perhaps, is skeptical that it has committed any war crimes at all?) (he writes, “[i]t is less clear that the IDF’s killing of civilians and destruction of civilian infrastructure… or its damages of hospitals and blocking of access to food, water, and fuel, constitute war crimes”).

When it comes to Hamas, he abandons any hint of circumspection and enthusiastically embraces the proposition that it has committed war crimes with a breathtaking level of certitude for someone capable of being so cautious (he writes, “there is little doubt that Hamas’s attack on 7 October constituted a war crime, not so much because it was ‘disproportionate’, as because (and in so far as) it was aimed at civilian rather than military targets”).

Fagan’s primary critique of the UCT Council’s claims in relation to Israel’s war crimes is that they were made prior to an investigation of the facts (he goes on further to say that, even if all the facts were in, the question of whether the IDF’s actions amounted to war crimes “may well turn on judgments that are close to impossible to make, given that they require the weighing against each other of incommensurables” — it is interesting to note, as a side, that these judgements are “close to impossible to make” in respect of Israel’s crimes, but are a lot simpler in respect of Hamas’s).

“[Whether] the IDF really has committed war crimes,” he writes, “can only be determined after a thorough investigation of the facts”. What Fagan fails to mention is that there have been several investigations into Israel’s alleged war crimes since 7 October, which, as it turns out, have concluded that Israel has indeed committed a number of war crimes (and support the UCT Council’s claims).

As early as 10 October, the UN Office of the High Commissioner on Human Rights issued a press release stating that there is “already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza”. The press release specifically mentioned Israel’s complete siege on Gaza, stating that the withholding of water, food, electricity and fuel “constitutes collective punishment”. Collective punishment, of course, is a war crime.

On 12 October, Human Rights Watch found that Israel’s use of white phosphorus in densely-populated areas in Gaza “violates the requirement under international humanitarian law that parties to the conflict take all feasible precautions to avoid civilian injury and loss of life” (in a later report, it detailed how Israel has been using starvation as a weapon of war, a war crime, through “deliberately blocking the delivery of water, food, and fuel, while wilfully impeding humanitarian assistance, apparently razing agricultural areas, and depriving the civilian population of objects indispensable to their survival”).

On 20 October, Amnesty International issued a press release titled “Damning evidence of war crimes as Israeli attacks wipe out entire families in Gaza”, in which it presents an analysis of its findings in respect of five Israeli air bombardments, carried out between 7 and 12 October. The report explains how the organisation has documented “unlawful Israeli attacks, including indiscriminate attacks, which caused mass civilian casualties”, and investigated these by “[speaking] to survivors and eyewitnesses, analys[ing] satellite imagery, and verif[ying] photos and videos”.

It found that in each of the five airstrikes investigated, Israel “violated international humanitarian law, including by [either] failing to take feasible precautions to spare civilians, or by carrying out indiscriminate attacks that failed to distinguish between civilians and military objectives, or by carrying out attacks that may have been directed against civilian objects”.

The Amnesty International report only captures the picture as at 12 October. Since then, things have gotten far worse and mainstream media outlets are turning their attention to the calls for investigations into the IDF’s conduct in Gaza. On 21 December, the New York Times published the results of an investigation it conducted into the scale and extent of Israeli bombing in the southern parts of the Strip during the first six weeks of its offensive.

It concluded, based on an analysis of drone footage and satellite imagery to detect bomb craters (208 craters were identified, but given that the footage was limited, the estimated number is much higher), that “Israel routinely used one of its biggest and most destructive bombs [a 2 000-pound bomb] in areas it designated safe for civilians [in southern Gaza]...where Israel had ordered civilians to move”. In other words, as per the New York Times’s investigation, Israel is kraaling Palestinian civilians into areas that it designates as “safe” and then proceeding to drop 900kg bombs on those civilians.

On the same day, the Washington Post published the results of its own investigation into the IDF’s siege and storming of the al-Shifa Hospital complex, which began on 11 November. In particular, it looked into the “remarkably specific” claims made by the IDF spokesperson, supposedly supported by “concrete evidence”, when “building a public case” for the invasion — these included: the direct involvement of five hospital buildings in Hamas activities; that underground tunnels existed underneath the buildings, which were being used by Hamas to command its fighters and direct rocket attacks; and that these tunnels could be accessed from inside the wards of the hospital.

Unsurprisingly, the investigation found that, despite the photographic and video “evidence” that the IDF released which supposedly proved these claims, the “evidence presented by the Israeli government falls short of showing that Hamas had been using the hospital as a command and control centre”, raising “critical questions… about whether the civilian harm caused by Israel’s military operations against the hospital…were proportionate to the assessed threat.”

In other words, Israel lied about al-Shifa being a Hamas “command and control centre” (for some reason, the Washington Post is seemingly incapable of speaking frankly) and pursuant to that lie, attacked Gaza’s largest hospital.

The Washington Post’s findings had been echoed a month or so earlier by a BBC analysis, which, on 17 November, concluded of the (so-called) evidence that Israel had been producing as proof that al-Shifa was a Hamas command centre after having attacked the hospital that Israel “had either not found evidence of this [i.e., al-Shifa being a Hamas command centre] or was not sharing it”. In other words, Israel lied about al-Shifa being a Hamas command centre (like the Washington Post, the BBC is also seemingly incapable of speaking frankly) and used that lie to rationalise its attack on Gaza’s largest hospital.

You will notice that both the New York Times and Washington Post investigations rely heavily on satellite imagery and publicly released visuals. There are two observations that are worth making about this. First, most of this footage was available to the public long before the BBC, New York Times and Washington Post finished analysing it. Therefore, the evidence of Israel’s crimes was there for anyone who wanted to see it.

Second, the heavy reliance placed on aerial footage, satellite imagery and publicly released materials to conduct these investigations is a product of Israel’s long-standing practice of preventing independent investigations into its crimes. For example, it has deliberately obstructed efforts by UN bodies to investigate the allegations of sexual violence on 7 October, which are also potential war crimes, which have been widely reported in mainstream media outlets like the BBC. Moreover, Israel has also refused to cooperate with the International Criminal Court’s (ICC) investigation into war crimes and violations of international law in Israel and the Occupied Palestinian Territories and prevents ICC investigators from entering the country or the OPTs (it is probably important to note that Palestine was recognised by the ICC as a member in 2015).

So, to sum up, there was ample evidence, readily available to any person who cared to look (the only barrier to accessing it being that one needed an internet connection), by time that the UCT Council released its statement (7 December), and by the time that Fagan released his response to its statement (13 December), that Israel had been committing war crimes. Fagan is, of course, entitled to ignore all of this evidence of Israel’s crimes. He is entitled to reject the findings of the UN, Human Rights Watch and Amnesty International.

Furthermore, he is entitled to deflect criticism from Israel by obfuscating its crimes and blaming Hamas for them. He is entitled, as it were, to blame Hamas as a salve for the conscience. That is his prerogative. However, having done so, he shouldn’t purport to assume the moral high ground over those of us who, instead, have chosen to believe what is in front of our eyes.

Caitlin Le Roith is a signatory of the 17 November statement by members of the Faculty of Law at the University of Cape Town. She writes in her personal capacity and the views expressed here do not necessarily reflect those of the other signatories.