UCT, Israel and Gaza: A response to Le Roith and Manjra

Anton Fagan replies to the criticism of his criticism of the university's response to the conflict

A response to Ms Caitlin Le Roith and Dr Shuaib Manjra

In December last year, I published a piece in Politicsweb responding, first, to a statement by some of my UCT Law Faculty colleagues about ‘the ongoing violence in Palestine’ and, secondly, to a statement by UCT Council on ‘the crisis in Gaza’. In January this year, rejoinders to my piece were published by Ms Caitlin Le Roith, a former student of mine who for several years tutored some of my courses, and Dr Shuaib Manjra, who is a convocation-elected member of UCT Council (see here).

In my piece, I claimed that my UCT colleagues, in their statement, had shown ‘unequal concern about the violence in Israel, on the one hand, and Gaza […], on the other’. By ‘the violence in Israel’, I meant the attack of 7 October. In her rejoinder, Ms Le Roith does not deny this claim. Instead, she seeks to counter it with a ‘so what’ response: ‘so what if the statement did not show equal concern for the violence perpetrated by Hamas in Israel on 7 October and that perpetrated by the IDF in Gaza thereafter?’.

Why ‘so what’? Because, according to Ms Le Roith, the two ‘episodes’ or ‘cases’ of violence are qualitatively distinct. Whereas the IDF’s violence in Gaza was genocidal, Hamas’s violence in Israel was not. That being so, there existed ‘a valid ground for being unequally concerned about these two cases of violence’ and, more specifically, for being ‘more concerned’ about the IDF’s violence in Gaza than Hamas’s violence in Israel.

Ms Le Roith dedicates much of her rejoinder to showing why the IDF’s violence in Gaza was genocidal, first setting out the two conditions for an act to constitute genocide, and thereafter showing why (in her view) each of these conditions was satisfied by the IDF’s violence in Gaza. Curiously, Ms Le Roith dedicates none of her rejoinder to showing why Hamas’s violence in Israel was not genocidal – even though, on the face of it, the two conditions she identifies, if satisfied by the IDF in Gaza, were also satisfied by Hamas in Israel.

(In a revealing slip, Ms Le Roith takes herself to have established that the IDF committed acts ‘of genocide’ in Gaza in advance of answering the question whether those acts had been committed ‘with the intent of bringing about the destruction of the Palestinians of Gaza’. This is rather like taking oneself to have established that an act of killing was murder before having established that it was done with intent, or that an act of sexual penetration was rape before having established that it was performed without consent.)

Be that as it may, the qualitative distinction which Ms Le Roith seeks to make between the violence of the IDF and that of Hamas, even if it were valid, would not warrant anyone’s being unequally concerned about them. Even if Hamas’s violence on 7 October were not genocidal, it might still have constituted a wrong (of another kind). And this wrong may be of equal magnitude to the wrong which (in Ms Le Roith’s view) the IDF has been committing in Gaza since then or, if not that, at least of sufficient relative magnitude to warrant acknowledgement in the statement issued by my Law Faculty colleagues.

In my previous Politicsweb piece, I made it clear that I believe that Hamas did commit a wrong (or wrongs) on 7 October – of an egregious kind. As I put it in the piece: ‘there is little doubt that Hamas’s attack on 7 October constituted a war crime’. The reason for this conclusion, I explained, is that Hamas’s attack on 7 October clearly satisfied one of the two sufficient conditions for a war crime to have been committed by an attack, namely that the attack directly targeted civilians.

Ms Le Roith nowhere admits that the attack by Hamas on 7 October constituted a war crime. On the contrary, she chides me for ‘enthusiastically embrac[ing] the proposition’ that it did. It is possible that Ms Le Roith does not believe that Hamas committed war crimes on 7 October – because she does not believe that it targeted civilians directly. Perhaps Ms Le Roith also does not believe that the Twin Towers were blown up by al Qaeda. Perhaps she believes that the Boston Marathon bombing was a hoax. Who knows?

Maybe Ms Le Roith’s point is only that, having ‘enthusiastically embraced the proposition’ that Hamas committed war crimes, I should have as enthusiastically embraced the proposition that the IDF did so. However, in my piece I drew a distinction the import of which escapes Ms Le Roith. Whereas Hamas’s violence in Israel constituted a war crime because it satisfied the condition that it directly targeted civilians, the IDF’s violence in Gaza could have constituted a war crime only if it satisfied the condition that the (anticipated) harm it would cause to civilians and civilian objects was excessive, given its (anticipated) military benefits.

That Ms Le Roith failed to grasp the significance of this distinction is revealed by an aside in her rejoinder. ‘[I]t is interesting to note’, she says, that, while I claim that ‘whether the IDF committed war crimes in Gaza may well turn on judgements that are close to impossible to make, given that they require the weighing against each other of incommensurables’, I do not acknowledge that the same may hold for the question whether Hamas committed war crimes in Israel. But, of course, given the distinction set out (again) in the previous paragraph, the same does not hold.

Ms Le Roith wonders why, in my previous Politicsweb piece, I raised (only thereafter to reject) the possibility that the reason my Law Faculty colleagues were unequally concerned with Hamas’s and the IDF’s violence was anti-Semitism on their parts. Even though Ms Le Roith identifies herself as Jewish, which I am not, it is probable that I have encountered more anti-Semitism in my life than she has in hers, albeit in my case as a witness rather than a target. (I certainly hope that Ms Le Roith has experienced less anti-Semitism than I have.)

Throughout the seventies and into the early eighties, I attended two Afrikaans schools in Cape Town. Most of my schoolmates had a view of ‘Jewish character’ that would have made the Merchant of Venice blush. Fairly regularly, we would have teachers or special guests (generally from the military) lecture us on the great Jewish conspiracy, which was the hidden force behind the communists, which was the hidden force behind the ANC, and so on. (This bigotry was magnanimously extended to others too, but that is not presently relevant.)

Those teachers and special guests are by now dead or too ancient to matter: but possibly the maddest of them went on to serve as headmaster of another Cape Town school. As for my schoolmates, they were simply echoing the views of their parents (just as I was echoing the different views of my parents). Some of my schoolmates, I am sure, have outgrown their parents’ bigotry. Others, I am equally sure, have not. But by now they will have learned to express their anti-Semitism sotto voce, in the company of trusted friends around the braai or campfire.

Lest I be thought to be suggesting that anti-Semitism, in our country in those days, was peculiar to Afrikaners, I should recall something witnessed by one of my brothers when he was an LLB student at UCT. At a twenty-first birthday party held at an unapologetically WASP-preferring club in Newlands, the host was asked to get one of his guests either to remove his yarmulka from his head or to remove himself from the premises.

Why these ugly recollections from our unsavoury past? Because, even when it is not readily visible, anti-Semitism remains a constant undercurrent in many modern societies, our own included. If you doubt that, consider the upwelling of anti-Semitism in Europe and the USA in the past few months. And consider the fact that, according to a 2019 study, close to one in two South Africans view Jews in an unfavourable light.

That Jews, whether in or outside Israel, are being criticised because they are Jewish is therefore an ever-present possibility. There is no a priori reason to assume that this possibility does not obtain at UCT. If I rejected the possibility that my Law Faculty colleagues were unequally concerned with Hamas’s and the IDF’s violence because of anti-Semitism on their parts, it therefore was not because I took this to be self-evidently so.

It was rather because, in twenty-eight years at UCT, I have not heard a single anti-Semitic utterance from, nor witnessed a single anti-Semitic act by, a Law Faculty colleague: not in a meeting, not in the staff room, and not in a corridor chat. And it is because my colleagues have demonstrated, over and again, their commitment to fundamental values antithetical to anti-Semitism (or bigotry of any other kind).

That brings me to Dr Manjra’s rejoinder. It is long. It is written with the overweening confidence of a man who, having acquired some little mastery of one trade, imagines that he is master of all. And it contains several clangers. The first is that, in my piece, I had ‘accuse[d] [my Law Faculty] colleagues of anti-Semitism’, had ‘claim[ed] that [their] statement could only be attributable to anti-Semitism’, and had ‘point[ed] out why their statement could only be driven by anti-Semitism’.

Funny, I thought I had done exactly the opposite: when I stated that ‘my colleagues are not anti-Semitic, at least not consciously so’; when I stated that ‘I am not sure that subliminal anti-Semitism is a real possibility’; and when, in the Coda to my piece, I stated that my piece ‘expressly denies that my colleagues are consciously anti-Semitic, and thereafter dismisses the possibility that they might be unconsciously so’ (emphasis added).

It is, I suppose, my fault. I have spent decades reading the careful writing of philosophers and legal scholars who are acutely aware of the difference between the statement that something is the case, the statement that something possibly might be the case, and the statement that something is not the case. It never occurred to me that there might be readers who lack this awareness. Had it, I would have made sure to put the words ‘not’, ‘denies’ and ‘dismisses’ in bold capitals or, to ensure that those with Dr Manjra’s close-reading skills did not miss them, underline them in red crayon.

Presumably Dr Manjra does accept that, in medical practice, there is an important difference between saying ‘Ms Goldschmidt, you have cancer’, ‘Ms Goldschmidt, you might have cancer’, and ‘Ms Goldschmidt, you do not have cancer’. It is therefore puzzling that he should have disregarded this difference when reading my piece. I can only assume that his moral indignation caused him to be afflicted by a kind of semantic myopia. For his patients’ sakes, I hope that it will be short-lived.

Dr Manjra’s second clanger is that, in my piece, I ‘advocat[ed] for Israel’s genocide in Gaza’. I did not. Nor did I seek to justify Israel’s committing war crimes in Gaza – as Dr Manjra claims. I do, however, believe that the IDF’s campaign to destroy Hamas in Gaza is justified, provided and to the extent that it is not genocidal and does not involve war crimes. Dr Manjra and I do not, therefore, disagree about whether it is justified for the IDF to carry out a genocide, or commit war crimes, in Gaza. We disagree, instead, about whether the IDF is in fact doing so.

Even this is not quite right. On the one hand, since neither my colleagues’ nor UCT Council’s statement accused Israel of genocide, I nowhere in my piece addressed the question whether that accusation was well-founded. On the other hand, contrary to what Dr Manjra supposes in his rejoinder, I nowhere in my piece claimed, or endeavoured to show, that the IDF had not committed war crimes. Nor was it necessary, for my purposes, to do that.

In my piece, I made and relied upon a more modest claim: not that the violence of the IDF in Gaza was justified, but that the members of UCT Council – sitting at a distant remove from the action and relying on internet sources algorithmically curated to reinforce their preconceived ideas about the conflict between Israel and Hamas – were not in a position to judge whether the IDF’s violence in Gaza was justified or not.

Dr Manjra accuses me of ‘jump[ing] to conclusions […] without a full body of evidence’. But this is the pot calling the kettle black. It is UCT Council that jumped to a conclusion – namely that the IDF had committed war crimes – without a full body of evidence. That Council lacked a full body of evidence is not something for which it could be held responsible. That it nonetheless saw fit to conclude that the IDF had committed war crimes, and to broadcast this conclusion to the world, is something for which it could and should be held responsible – which is why, in my piece, I did so hold it.

It is not surprising that Dr Manjra should have thought that I claimed in my piece what I did not. His moral indignation seems to have induced in him also a speech-act myopia. To show that I claimed that the IDF had not committed any war crimes in Gaza, he turns my questions into statements. Thus my question ‘Did Hamas use hospitals and schools as arsenals and military control centres?’ gets turned into the statement that Hamas did use hospitals and schools as arsenals and military control centres. And thus my question: ‘Was Hamas hiding in tunnels under hospitals and schools?’ gets changed into the statement that Hamas was hiding in tunnels under hospitals and schools.

In accordance with standard practice, I had helpfully ended each of my questions with a question mark (?). But that seems to have gone unnoticed by Dr Manjra. One can only hope that Dr Manjra’s speech-act disability does not manifest itself in his medical practice. After all, there is a world of difference between the question ‘Ms Goldschmidt, do you have a fever?’ and the statement ‘Ms Goldschmidt, you have a fever.’

The third clanger in Dr Manjra’s magnum opus is that I believe that, in judging whether the IDF committed war crimes in Gaza, one has to engage in a utilitarian calculus which ‘pits the value of Jewish life against Palestinian life’ or, worse still, weighs the value of a military objective against the value of innocent Palestinian lives. On this basis, he accuses me of engaging in ‘moral obscenity’, of ‘moral depravity’, ‘moral vandalism’, and ‘moral truancy’.

What Dr Manjra does not acknowledge is that it is not I, but international humanitarian law (or the law of armed conflict), which requires that one, in order to determine whether the killing of civilians as a side-effect of achieving a military objective was or was not a war crime, weigh the anticipated costs (the civilian deaths) against the anticipated benefits (the achievement of the military objective). This, after all, is what the rule of proportionality requires.

(Note that, for the killing of civilians to be proportional and therefore not a war crime, it may not be necessary that the benefits exceed the costs. When another’s attack on me is likely to cost me a hand, I am permitted to take self-defensive action that is likely to cost him an arm. I do not necessarily commit a crime when I kill someone to prevent him from subjecting me to a non-life-threatening assault. Something similar may apply to the question whether military action was proportional.)

To conclude this response, I want to address a question that was not discussed in my earlier piece. Dr Manjra raises this question in his rejoinder, but he does not answer it. Who speaks for UCT? This is a good question, and an important one. Council took it upon itself to speak for UCT when it issued its statement on ‘the crisis in Gaza’. On what authority did it do so?

According to a recent statement by UCT’s interim Vice Chancellor, Council’s ‘Policy Statement on Public Pronouncements by Members of the University’ confers upon the Chair of Council the right to ‘speak on behalf of the institution’. But that is incorrect. The Chair of Council is not included in the Policy Statement’s list of ‘[p]eople who act as spokespersons for UCT’ (nor is Council itself).

In its statement on ‘the crisis in Gaza’, Council stated that UCT was ‘obligated to speak out on local and global issues, particularly where there are egregious violations of human rights’. Let it be assumed that UCT is under this obligation (notwithstanding its silence about any number of such issues in the past). That still leaves unanswered the question whether Council, or its Chair, has the authority to speak out, on behalf of UCT, on these kinds of issues.

Neither the Higher Education Act, nor UCT’s Institutional Statute, confers this authority upon Council. What they do, is only to confer upon Council the power, and impose upon it the duty, to ‘govern’ UCT. Examples of such ‘governance’ are to be found in the Statute. None of them comes close to speaking out on behalf of UCT on the rights and wrongs of the Israel-Hamas (or any other) conflict.

It may be that Council’s speaking out as it did, amounted to an abuse of position on the part of its members. UCT owes its authority to the expertise of its academics. This expertise need not, and by and large is not, shared by the members of Council (assuming that all three Senate representatives on Council are academics, as few as four of Council’s thirty members could be academics). For Council to speak out about a matter like the war in Gaza, on behalf of UCT, is therefore for its members to invest their own views with authority they do not deserve.

Council’s speaking out as it did, may also have amounted to a breach of duty by its members. The members of Council are under an obligation to act ‘in the best interests of the University’. It is not in the best interests of UCT to bring it into disrepute. It is possible that Council’s ignorant comments about ‘the crisis in Gaza’ had that effect.

It is, presumably, appropriate for Council to issue statements on matters that are connected to the ‘governance’ of UCT. This may include a matter like the current NSFAS scandal. Yet, even here, care would have to be exercised. Imagine, for a moment, the unimaginable, namely that Council were convinced that UCT’s interests would be best served by a DA-led City of Cape Town, Western Cape, and South Africa. Even so, it would hardly be appropriate for Council to issue a statement, on behalf of UCT, to that effect.

Anton Fagan is WP Schreiner Professor of Law: University of Cape Town   .