In an insightful opinion piece, Professor Anton Fagan, the WP Schreiner Professor of Law at University of Cape Town, offers a view on the Israel-Hamas conflict that raises some important questions about the approach taken by many of his fellow academics.
Republished with permission from Politics Web.
Anton Fagan | 12 December 2023
Girls in miniskirts have it coming to them
On 17 November this year, thirty of my academic colleagues in the University of Cape Town’s Faculty of Law issued a statement in which they declared that they were ‘deeply troubled by the ongoing violence in Palestine, which has resulted in the tragic loss of life of thousands of innocent civilians, including women and children’ and that they could not ‘in good conscience ignore the worsening humanitarian crisis in Gaza and the West Bank’.
My colleagues did not likewise declare themselves to be deeply (or even slightly) troubled by the violence in Israel which had occurred six weeks earlier, which had resulted in the death of one thousand two hundred people, most of them innocent civilians and many of them women and children, and which had involved beheading, torture, immolation, genital mutilation, and rape.
Nor had my colleagues declared themselves unable, in good conscience, to ignore this earlier violence. On the contrary, seemingly untroubled by this earlier violence, they did ignore it.
This is puzzling. My colleagues are not lacking in empathy and compassion. Nor are they indifferent to brutality, particularly when visited upon women and children. What then explains the inequality of their concern? Most of the victims of the earlier violence were Jewish. But my colleagues are not anti-Semitic, at least not consciously so.
True, some of them believe that ‘white’ people who are not consciously racist towards ‘black’ people, and who reject racism on moral grounds, may nonetheless be unconsciously racist. If it is possible for people to be racist without knowing that they are (and notwithstanding their rejection of racism), then I suppose it is also possible for people who are not consciously anti-Semitic (and who reject anti-Semitism) to be unconsciously or subliminally anti-Semitic.
Some have argued that anti-Semitism is more or less hard-wired into the other two Abrahamic religions. So, if subliminal anti-Semitism is a real possibility, then my Christian and Muslim colleagues may be particularly prone to it. But I am not sure that subliminal anti-Semitism is a real possibility, no more than I am convinced that subliminal racism is.
The explanation for my colleagues’ unequal concern about the violence in Israel, on the one hand, and Gaza and the West Bank, on the other, must be of a different kind. Without exception, my colleagues would reject – and rightly so – the notion that a woman in a revealing skirt might bear some moral responsibility for a sexual offence committed against her, with the corollary that the responsibility of the offender might correspondingly be diminished.
Yet it is possible that my colleagues’ response to the violence in Israel was infected by an idea which in some respects resembles this one. It is that the victims of this violence who are (or were) Israeli Jews bore some moral responsibility for it, with the corollary that the perpetrators’ responsibility was correspondingly reduced.
Why might Israeli Jews be thought, by my colleagues, to bear moral responsibility for the violence against them? Because, I imagine, Israel was founded by an act of original sin, namely the expulsion of hundreds of thousands of Arabs from their homes. Because, I take it, Israel has not expiated that sin by permitting those who were expelled (or who fled) from their homes to return. And because, I suppose, Israel took the West Bank from Jordan and Gaza from Egypt during the Six-Day War, and has not withdrawn from the former since then and, though withdrawing from the latter in 2005, has (together with Egypt) blockaded it since 2007.
There are sure to be further reasons for the attribution of moral responsibility to the Israeli Jews who were raped, mutilated, set on fire, beheaded, or in other ways tortured and killed on October 7 for these acts, and of diminished responsibility for these acts to the members of Hamas and Palestine Islamic Jihad who committed them. But we need not concern ourselves with those reasons.
Some of the victims of October 7 were infants. Others were small children, teenagers, or young adults. The idea that, because they were born and raised Israeli Jews, they in even the weakest imaginable sense deserved what happened to them (with the corollary that in some sense the members of Hamas and Palestine Islamic Jihad could be excused for what they did) is as nonsensical as it is repugnant.
Some of the older victims were peace activists, who (like a majority of Israeli Jews) never voted for Benjamin Netanyahu’s Likud party, and who not only support(ed), but actively worked for, Palestinian self-determination. That their identity as Israeli Jews could, to any degree, make them morally responsible for the violent acts perpetrated against them (or could, to any degree, absolve the perpetrators of those acts from moral responsibility for them) is equally nonsensical and repugnant.
Two months after Hamas invaded Israel, the University of Cape Town’s Council (UCT Council) issued its own statement on ‘the crisis in Gaza’. Unlike the earlier statement by my colleagues, the statement by UCT Council acknowledges and condemns ‘the disproportionate and deliberate attack by Hamas on innocent civilians’. Yet this acknowledgment and condemnation are deprived of their force by what precedes them.
Not only does UCT Council’s statement describe Hamas’s actions on 7 October as actions taken in a ‘struggle for freedom’ (even while admitting that those actions exceeded what such struggle justifies), it also likens Hamas’s ‘struggle for freedom’ to the ANC’s struggle against ‘settler colonialism’ and ‘apartheid’ in South Africa. This characterisation of Hamas’s actions on 7 October is a contestable one (albeit that it seems to be shared by the ANC itself).
For one thing, Israeli Arabs (Muslim and Druze) enjoy freedoms which Arabs in Gaza have been denied by Hamas, most notably the freedom to elect their own representatives. For another, while Israeli Arabs are not subject to discriminatory laws of the kind that constituted apartheid in South Africa (on the contrary, they are protected by anti-discrimination laws of general application), the founding of Israel, though involving acts of violence (both by and against Jews), did not involve acts of colonization: some of Israel’s original Jewish families had lived there for hundreds of years and many of Israel’s early Jewish families had lived in neighbouring Arab states for generations, but had moved to Israel soon after its founding, after being expelled from those states.
The primary focus of UCT Council’s statement is not the violence perpetrated by Hamas in Israel on 7 October, but that perpetrated by the Israel Defence Forces (IDF) in Gaza since then. According to UCT Council’s statement, the IDF’s attacks on ‘civilians and civilian infrastructure’ have been ‘disproportionate’ and constitute ‘collective punishment’, which, if true, would make them war crimes. The statement also identifies, as war crimes, the IDF’s ‘destruction of hospitals’ and its ‘blocking [of] access to food, water, and fuel’.
Now, though UCT Council’s statement does not expressly acknowledge this, 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.
There is also little doubt that, if (as has been alleged) Hamas has embedded its military personnel and operations in and under hospitals, schools, and other civilian buildings, then it has, for this reason too, committed war crimes: even though the victims of these crimes are the very people Hamas claims to represent.
It is less clear that the IDF’s killing of civilians and destruction of civilian infrastructure in Gaza since 7 October, or its damaging of hospitals and blocking of access to food, water, and fuel, constitute war crimes. UCT Council is confident that they do. But how does it know this?
In its statement, UCT Council asserts that the IDF has killed ‘over 15 000 Palestinians’, 12 500 of whom are ‘women and children’. One could quibble about the numbers: according to the IDF, 6 000 of those killed were Hamas combatants. Of course, the fact that innocent civilians have been, and are being, killed in Gaza is a tragedy, whether the number of innocent civilians so far killed is 9 000 or 10 000 or 12 500.
But the fact that the deaths of these civilians are a tragedy does not entail that the acts by which those deaths were caused were war crimes. For any one of those acts to have been a war crime either of two conditions must have been satisfied: (1) the civilians killed by the act were directly targeted; (2) in the event that they were not, the number of civilian deaths caused by the act was clearly excessive, given the importance of the act’s military objective.
The IDF denies that it has performed any acts in Gaza satisfying either of these conditions. UCT Council believes the opposite. But on what basis? True, Hamas claims that the first of these conditions has been satisfied, over and again – and it should know. But why should we believe Hamas? An organisation which happily slits the throats of infants and gleefully fires shots into the crotches of women in order to advance its cause surely would have few qualms about telling the odd lie in order to advance it.
None of the above precludes the possibility that the IDF has in fact committed some, even many, war crimes in Gaza. Perhaps it is the IDF that is lying – when it claims always to have struck military targets. Perhaps the IDF is so partial to its own cause, or so keen to redeem itself after its failure to prevent the attack of 7 October, or so determined to deter Hamas from launching an attack of that kind ever again, that it has judged as not excessive civilian deaths which are.
But whether either of these possibilities obtains, and the IDF really has committed war crimes, can only be determined after a thorough investigation of the facts, facts currently obscured by the chaos of war. Did Hamas use hospitals and schools as arsenals and military control centres? Was Hamas hiding in tunnels under hospitals and schools, accessed by shafts emerging in those hospitals and schools, or their grounds?
Did staff at those hospitals and schools know (and possibly approve of) this? How high was the probability that fuel trucked into Gaza would be seized by Hamas and used for military purposes? What did the IDF know? What did it believe? And so on.
Even once all the facts are in, the question 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. How many innocent civilians may be killed as an inevitable consequence of killing one who successfully ordered the killing (and in many cases also the rape, mutilation, and torture) of more than a thousand people, many of whom were children or women? What is the permissible trade-off here?
UCT Council believes that it knows the answers to these questions. That may seem hubristic, given that UCT Council is sitting in an armchair – or committee room – 7 000 km away from the action. But I think it is more probably the product of muddled thinking. There are likely to be two muddles at work here, one factual, the other legal. The factual muddle has already been touched upon.
It is that Hamas’s fight against Israel is like that of the ANC against the South African apartheid regime. In other words, like the latter, so also the former is a fight between the good (Hamas) and the wicked (Israel). The legal muddle is that whether the killing of innocent civilians by an act aimed at achieving a military objective was excessive (given that objective), and therefore amounts to a war crime, depends on whether the act was performed by the good guys or the wicked ones.
Thus, the same act performed with the same military objective and killing the same number of innocent civilians may be a war crime if performed by the wicked guys, but not be a war crime if performed by the good guys.
Is Hamas really to be likened to the ANC? Can Yahya Sinwar really be viewed as the Mandela of the Middle East? I do not believe so. My memory is not what it was, but I cannot recall Nelson Mandela calling for, let alone orchestrating, the chopping off of civilians’ heads or the rape and sexual mutilation of girls and young women.
Furthermore, notwithstanding some early (and unfortunate) dalliances with Stalinism, the ANC has proved itself to be committed to an open, free, and democratically-governed society. There is reason to doubt that Hamas shares these commitments, provided by its First and Second Charters (from 1988 and 2017 respectively), by the public pronouncements of its leaders, and by its record of governance in Gaza since 2007.
So much for the factual muddle: the legal muddle, as explained, is to think that the justification for waging a war has a bearing on the justification of how that war is waged. For better or worse, that is not the law. As this is traditionally put, jus in bello is independent of jus ad bellum.
It is easy to see how a failure to keep these separate, combined with the view that Hamas represents the good and Israel the bad, would have led UCT Council to conclude that, even without a close examination of the facts, it could know, for sure, that the IDF has been committing war crimes in Gaza. For then, in the weighing exercise required in order to determine whether civilian deaths caused by the IDF’s killing of Hamas members are excessive, the undesirability of the former necessarily must outweigh the desirability of the latter.
To the points raised above, my colleagues who issued the statement of 17 November and the members of UCT Council may reply: ‘But how could we possibly remain silent about a humanitarian crisis of this scale?’ Well, the answer is that they could and in fact do – all the time. I am not aware that they have spoken out about the war in Ukraine (10 000 civilian deaths), or the war in Syria (between 500 000 and 600 000 deaths), or the detention of Uyghurs and other Muslims in China (as many as 1 million).
Nor, as far as I know, have they said anything about the more that 50 000 deaths of TB, close to 30 000 deaths of diabetes, and 12 500 road traffic deaths every year in South Africa, not to mention the fact that, in South Africa, more than 50 000 people are homeless (of whom close to 45 000 are roofless), and 30 million people are living in poverty (of whom 14 million are experiencing food poverty).
As South Africans, we do not have to cast our gaze 7 000 km to the north to find a humanitarian crisis. We live in the midst of one. But, of course, it is harder to signal our virtue by expressing our concern about our own humanitarian crisis than the one in Gaza. For, then, we might face some uncomfortable questions about our own lives: about the cars we drive, the houses we live in, the holidays we take, and the fact that, as UCT academics, we threatened to go on strike last year because we were not content with a salary increase of 3%.
Coda:
A draft of the above piece was sent to my colleagues in the UCT Faculty of Law, to give them an opportunity to correct errors in it. None was identified. However, a few of those who had issued the statement of November 17 complained that my piece portrayed them as (possibly) being anti-Semitic. This is a red herring.
My piece expressly denies that my colleagues are consciously anti-Semitic, and thereafter dismisses the possibility that they might be unconsciously so: that is why it goes on to say that the explanation for their unequal concern about the violence in Israel and Gaza must be of a different kind (i.e., a kind that does not invoke anti-Semitism).
Lest my piece create the wrong impression about the UCT Law Faculty, I should point out that a number of my colleagues expressed their agreement with my piece. Some pointed to further facts in its support, such as that, in the recent civil war in Ethiopia, as many as 600 000 civilians were killed (in two years) and such as that UCT Council’s statement that ‘[t]he deliberate destruction of hospitals can only be seen as a war crime’ simply is legally incorrect – if hospitals are actively being used as military installations, they can be targeted (subject to a proportionality assessment).
Finally, a friend who is a graduate, but not member, of the Faculty and is an expert on the law of armed conflict (or international humanitarian law) pointed out that my piece does not make it clear enough that the test for proportionality (the second condition identified in my piece) is anticipated military benefit from an attack as against anticipated incidental harm to civilians or civilian objects: i.e., it is not an effects-based test, but rather based on what the commander making the decision to attack knew at the time.
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