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Israel and Gaza: A rejoinder to Anton Fagan

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Shuaib Manjra says the UCT law professor has let his slip slip further

Introduction The only rebuttal necessary to Professor Anton Fagan’s rejoinder to my article is to exhort him to re-read it; but this time for meaning and understanding; for evidence and facts; and for law and logic; all of which he missed, or ignored, because he is more invested in barbs than a real debate.

I have no intention to rehash my previous article, but simply assert that its robustness is sustained by the fact that Fagan’s response fails to dislodge a single one of my arguments. All he does is repeat his initial assertions and elides all the evidence provided in my rebuttal, since it convincingly rebuts his narrative.

Fagan’s attack on Caitlin le Roith

I do not wish to speak for Caitlin le Roith, as she has elegantly demonstrated her capacity to teach her previous lecturer law, ethics, and evidence.

Differentiating violence

However, it is indubitable that Israel’s violence and that of the Palestinian resistance is qualitatively, legally, and morally different. Israel’s violence represents colonial violence by a belligerent illegal occupation force, enforcing a regime of apartheid. Palestinian violence is based on resistance to that colonial and apartheid regime.

One of Fagan’s fundamental errors is his failure to invoke a legal foundation for Israel’s violence (jus ad bellum), particularly in the context of a belligerent, illegal occupation. Fagan simply assumes Israel’s (legal) right to violence against Palestinians, and then supports such brutal violence. To quote from my article: “(Israel’s) utilitarian logic is always accepted, as if the morality is embedded in this logic”.

Anyone with even a passing knowledge of the history of Palestine will know that this is not Israel’s first genocidal campaign against Palestinians, genocidal violence has been acted on Palestinians before Hamas, after and without, as evidenced in the West Bank. Israel’s foundation is based on genocide, as with any settler-colonial entity.

To be sure, Israel as an occupation force lacks any claim to self-defence, or the invocation of aggression against it (UNGA Resolution 3314). To put it simply for Fagan, you cannot claim self-defense or aggression in defending an illegality. Of course, non-state actors, are still bound by the Additional Protocol II of the Geneva Convention, which was specifically designed to protect civilians in such conflicts, but a greater obligation always rests with the occupying force.

But Fagan, ignoring all the evidence before him makes up facts as he proceeds to confirm his predilection: Hamas deliberately targeted civilians, Israel didn’t; Hamas committed war-crimes, Israel didn’t; Hamas committed genocide, Israel hasn’t; Israel’s claims are always believable, Palestinians’ never; Israel has a right to violence, Palestinians do not. Palestinians use human shields, Israel has no control of its violence.

No amount of evidence, even that provided by independent observers, will move Fagan from a pre-conceived ideological position, which is his starting point, and subsequently justified. It is the logic of apartheid judges, or those of Israeli military courts in the Occupied Territories with a conviction rate of over ninety-nine percent.

Anti-Semitism

Fagan’s arrogance clangs when he preaches anti-Semitism to a Jewish woman, claiming that he has ‘experienced’ more anti-Semitism than she has:

“I certainly hope that Ms Le Roith has experienced less anti-Semitism than I have”. (my emphasis).

Not only ‘encountered’, but ‘experienced’! By that logic, he’s could probably claim having experienced more intersectional discrimination than most South Africans – across the axes of race, gender, sexual orientation, or Islamophobia.

That Fagan has encountered or experienced more anti-Semitism (and probably other discriminatory forms) than the rest of us is perhaps more indicative of the company he keeps, or the ecosystem he inhabits, than a general societal trend in South Africa.

Fagan then ‘proves’ his theory of pervasive anti-Semitism in South Africa relying on ‘evidence’ gleaned from what he portrays as a definitive study. He concludes with great authority that “close to one in two South African view Jews in an unfavorable light” – to be exact, 44% according to the study.

Having sought out this study, conducted by the US-based Anti-Defamation League (ADL), which self-describes as a Jewish organisation, but functions as a pro-Israel lobby group (see here), I attempted to explore its methodology. It became patently obvious that this study was a scam, damned by no less a body than the South African Jewish Board of Deputies (SAJBD) (reference), calling it ‘gravely flawed … highly questionable … and clearly wrong”. An apt description of Fagan’s academic approach.

Le Roith’s evidence

Then in a bizarre dig at Le Roith, Fagan writes:

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’.

Aside from the fact that both of Fagan’s articles are replete with such assertions, Le Roith did nothing of the sort. She stated a conclusion, arrived at after first considering the evidence, and then presented the evidence in a logical written form. That is very different to arriving at a conclusion without considering evidence.

Le Roith’s provides an introduction, and then methodically and systematically presents the evidence, and legal argument, for Israel’s genocide, referencing the criteria encompassed in the Genocide Convention:

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”.

This assertion is strongly supported in South Africa’s 83-page submission to the ICJ, where the case for genocide is laid out in great, devastating detail.

Fagan’s inequality of concern and evidence bias

One may justifiability ask, why is Fagan more exercised at the deaths of about 700 Israeli civilians, but not 11 000 Palestinian children?

Does it belie a belief that Palestinian lives are disposable; black lives don’t matter! Or to employ Fagan’s argument, would it be reasonable to conclude that his inequality of concern is a mark of conscious, unconscious, subconscious, or subliminal racism? Is it be justified to conclude that reactions to Palestinian deaths in certain sectors of South African society is indicative of pervasive racism in that sector? Or perhaps it is an illustration that Fagan’s denial of unconscious bias is wrong?

Or does it signify absence of space for Palestinians (and other colonized people) in his moral (or amoral/immoral) imagination. The grotesque irony is that while he accuses his colleagues of diminishing Jewish (actually Israeli) lives, his actual dehumanization of Palestinians is terrifying.

Fagan’s imagination sees liberation movements through the lens of terrorism, and despite the evidence, asserts Hamas only targeted civilians and is thus guilty of war crimes. On the other hand, Palestinians were mere collateral damage of Israel’s reprisal against Hamas. Black bodies are disposable, and colonialism’s violence is only reactive, and excusable:

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.

In a statement release a few days ago, Hamas claims that the 7th October operation was consequent to Israel’s continued belligerent occupation, oppression, and continued dispossession of Palestinians with no commitment to peace and a just settlement. The objective, they claim, was to target occupation forces, and to capture them as hostages, in order to serve as rich currency to trade for Palestinians, many of them minors, held without charge in Israeli jails, and without an option of a fair trial. That at least a third of all Israeli deaths in that operation were military personnel, lends some credence to this view.

The statement further claims that Israeli civilians were collateral victims in the firefight with the IDF, many of whom were killed by the IDF. The statement admits that “maybe some faults happened … due to the rapid collapse of the Israeli security and military system, and the chaos caused along the areas near Gaza”.

Whether one believes Hamas or not, the larger question is why his inequality in considering the military logic, which Fagan is wont to invoke. After all, Hamas is fighting against one of the longest occupations in history. Fagan seems less invested in the act, but rather who committed it. Malcolm X captures this moral inversion, and Fagan’s perversion succinctly when he said, “If you’re not careful, (they) will have you hating the people who are being oppressed, and loving the people who are doing the oppressing.”

While one may argue that some of the acts of 7th October fall within the definition of war crimes, it would be difficult to sustain a position, even with the wildest expansion of the definitions in the Genocide Convention, that it constitutes genocide. Fagan, while asserting that it constitutes genocide, merely parrots the Israeli narrative, failing to logically argue his case.

Evidence of Israel’s civilian targets

Furthermore, Fagan’s unequal logic fails to acknowledge the now overwhelming evidence that Israel deliberately targeted civilians and civilian infrastructure, referred to as “power targets”, as detailed in my article. Since publication of my article more evidence has emerged:

– Using 315 mines, Israel bombed and destroyed the private Israa University in Gaza, which the IDF had occupied for 70 days prior as a control and detention centre (see here). There was no military objective, no presence of tunnels, or Hamas fighters.

– Israel has destroyed all of Gaza’s universities and murdered of 94 University professors, 59 PhDs, and hundreds of other academics. (see here; or here).

– What of Israelis destruction of UNESCO Heritage sites, one of the world’s oldest churches and stealing Gaza’s historical artifacts. The bombed Israa University contained a museum with over 3 000 rare artifacts.

– All of Gaza’s mosques and churches are completely destroyed or severely damaged.

– CNN has uncovered the gruesome desecration of at least 16 cemeteries in by Israel in Gaza (see here; and here) and exhumed bodies, in acts of grotesque barbarism.

This pattern of Israeli conduct is what Raphael Lemkin described as cultural genocide, or ‘culturicide’, which is a central component in Lemkin’s formulation of genocide. Lemkin, who was one of the architects of the Genocide Convention, did not see genocide as necessarily meaning the immediate destruction of a nation; rather it was also a coordinated plan of different actions aimed at destroying the essential foundations of the life of national groups, with the aim of annihilating such groups, through forcing disintegration of their institutions, or forced displacement.

Dr Ghassan Abu Sitta, a British-Palestinian surgeon, who worked in Gaza during the war, describes Israel’s systematic attack on Gaza’s health system as the primary target, not part of collateral damage, as a critical strategy of Israel’s campaign of ethnic cleansing and genocide against Palestinians. He argues that the attack on the Baptist Hospital was a test balloon to gauge international reaction.

The muted response opened the way for Israel’s destruction of the entire health system in Gaza, to a point where Israel doesn’t even bother justifying its attacks on hospitals and doctors anymore, attacks which have rendered most of Gazan hospitals non-functional. Israel has systematically attacked medical professionals (Israeli snipers murdering doctors at will) and destroyed the only two medical schools in Gaza “with the aim of eliminating an entire generation of doctors.” The Israeli objective, according to Abu Sitta, is that “even if you rebuilt hospitals, you wouldn’t be able to rebuild the health sector.”

What of the wanton murder of journalists, aid workers, those standing in food queues, those seeking refuge in churches (which even the Pope labelled as terrorism), or those moving to Israeli designated safe zones? What of those civilians killed execution style in full view of their families by the IDF (see here) which unequivocally constitutes war crimes? Or the destruction of all the bakeries in Gaza?

Yousef Munayyer and Shree Paradkar (see hereand hereadd to the genocide lexicon and to Lemkin’s ‘techniques of genocide’:

Genocide is an incomplete descriptor of what Israel is doing in Gaza. We are seeing entirely new crimes that also need to be noted. Scholasticide– the elimination of the education system, Medicide– elimination of hospitals & doctors, and Journocide– mass killing of journalists.

I simply wonder how Fagan justifies this, not as isolated cases, but recurring patterns in a genocidal plan. Or how would he explain the deaths of nearly 370 Palestinians in the West Bank in the last three months, including 98 children, where his bogey of Hamas is absent in the equation?

Fagan and criticisms of my article

Fagan’s levels three criticisms of my article.

Anti-Semitism again

Fagan denies that he labelled his colleagues, either through expression, allusion, or implication, as anti-Semites. My first question, as a lay person, is why then pose the question, and create an allusion or implication of anti-Semitism? This is what Fagan argues, in his own words:

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.

Although Fagan attempts to walk this back in his Coda after some pushback from his colleagues, his invocation that ‘anti-Semitism is more or less hard-wired into the other two Abrahamic religions’ is a categorical statement that remains in his article. Fagan had opportunity to edit out this egregious statement, and if he is particularly convinced of his colleagues’ integrity, a simple categorical denial of any anti-Semitism would have sufficed: “I do not believe that my colleagues are anti-Semitic in any way”.

In his rejoinder he makes further bizarre claims:

That Jews, whether in or outside Israel, are being criticized 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.

There are two further issues I want to raise in response. The first is that Fagan’s claim is false: nowhere in the conflict are Jews being ‘criticized because they are Jewish’.

The second is Fagan’s fixation with anti-Semitism, which in the context of Israel being a nation-state, is misplaced? Why would criticism of Israel be deemed anti-Semitic? He ventures down this rabbit hole with no logic or explanation. As an analogy would criticizing the ANC or the South African government constitute racism; or criticizing Saudi Arabia’s brutal dictatorship be considered Islamophobic?

Considering that Fagan himself denies any experience of anti-Semitism at UCT, his premise of its pervasiveness in society (except in his self-selected ecosystem) is fatally flawed, and that condemnation of Israel’s genocidal actions bears no relationship to anti-Semitism, his introduction of anti-Semitism is simply a diversion, a red herring, a canard.

Fagan’s denial of advocating for war-crimes and genocide

Having consulted numerous experts on human rights law, international humanitarian law, and military law, I can state with great conviction, even as a non-expert, that jus in bello, international humanitarian law, and human rights law, is meant primarily to protect non-combatants, not military objectives as claimed by Fagan.

“International humanitarian law is inspired by considerations of humanity and the mitigation of human suffering. It comprises a set of rules, which is established by treaty or custom and that seeks to protect persons and property/objects that are or may be affected by armed conflict, and it limits the rights of parties to a conflict to use methods and means of warfare of their choice”.

This contradicts Fagan’s logic, that the legitimacy of an action is determined by the military commander, with ‘military benefit’ of primary consideration, and humanitarian considerations a secondary one. To use a bad analogy to explain a poorer grasp of law, “if there is a criminal surrounded by innocent people, would the capture or murder of that criminal be of greater importance than the rights of bystanders?”

In Fagan’s warped logic, a commander will determine whether harm to civilians is acceptable. By this logic the Russian commander waging war in Ukraine is given the option to decide which military action is justified and at what human cost. Or the Nazi commanders in World War II, or apartheid military commanders in the wars against the South African liberation movement?

It would be permissible according to Fagan’s logic for a military commander, in response to the Ellis Park or Magoo’s Bar bombings, to destroy Soweto in order to destroy the ANC or kill one or more of its members. Or if the British military decided to wipe out the Catholic section of Belfast because of an IRA terror attack?

Aside from the overwhelming evidence of Israel specifically targeting civilians and being fully aware of the civilian costs of their bombings, evidence which Fagan willfully ignores, what of the withholding food, water, fuel, and medical care as weapons of war; or the displacement of 2 million people and destruction of 70% of homes in Gaza?

His argument presents this this as acceptable collateral damage to destroy Hamas, which he sees as a legitimate objective, including dropping 2000lb bombs in densely populated civilian spaces, used of banned chemical weapons, and destruction of civilian infrastructure.

UCT’s Professor Leslie London in Business Day, counters the (false) Israeli and Fagan’s narrative claiming the high Palestinian death toll as a function of the latter using human shields, or hospitals as military zones. London, quoting a peer reviewed article, demonstrates:

how IDF propaganda has constructed this claim (human shields) over past decades to justify the extraordinarily high civilian death toll in waging war against urban populations. By characterising everyone as a human shield, regardless of whether they are actually serving as shields, the protections applicable to civilians during times of war are dispensed with. They all become potentially “killable subjects”. The claim is made during the war, but never justified with evidence… claims that medical facilities were being used for military purposes as human shields are deployed to legitimize their destruction. Once destroyed, no proof is provided.”

Fagan would do well to exercise such academic rigor and not merely rely on IDF propaganda.

But here is a test of Fagan’s logic, which I raised in my article: based on his claim of rights for the Israeli military, what concomitant rights accrue to Palestinian resistance fighters? If Hamas is a target to be destroyed, what concomitant right would Palestinians have?

Would a similar logic apply to justify collateral death and damage to Israeli civilians, infrastructure, universities, hospitals, and synagogues? It is trite that the logic of military law or humanitarian law should apply equally, in fact should such a logic be employed it must balance more in favor of Palestinians by virtue of an inherent right of resistance, and in light of being forced into an asymmetrical war.

Deconstructing Fagan

I am less interested in Fagan’s use of semantic trickery or punctuation marks, as I am in the narrative that dominates his articles. In unmasking a text Derrida taught us not to underestimate the power of the question mark as the “the meaning of a sign is never revealed in the sign”. Fagan has enacted what I predicted in my article – creating a shield of plausible deniability. But if his questions were balanced, one could see a logic, and here “a sign only means something by virtue of its difference from something else”. That ‘something else’ is his silence on the Palestinian narrative or suffering.

Deconstruction allows us to break down Fagan’s arguments, to better understand its meanings. It dismantles language to discover what is really being said beneath the surface. But it also forces us not only to examine what the text says, but what it is silent on. Ideology after all resides at the margins of discourse.

Derrida guided us not to trust words, not to even trust questions, not to trust signs, but to never doubt patterns. Fagan demonstrates that pattern in his discourse – one of coloniality, racism and dehumanization.

I am glad that Fagan is either offended or threatened by my ‘overweening confidence’. If what he expected was deference, my years at UCT have nourished the cynic in me, in understanding that beneath the veneer of civility in academic spaces there lies a brutality.

My intention is always to challenge the Foucauldian characterization of “the close association between power and knowledge”, or those who invoke a certain power by claiming custodianship of certain knowledge. Except that Fagan claims power without the requisite knowledge. Fagan is far too accustomed to societal hierarchies and claiming a perch for himself atop this hierarchy. It is this kind of hubris which enables him to claim that he has a greater right to speak for UCT than Council or its elected members.

In Fagan’s drunken hubris he misses the irony of his attack on UCT Council who he accuses of “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”.

Versions of denial

In Versions of Denial, published in the London Review of Books, Conor Gearty, reminisces about his association with sociology professor, Stan Cohen, who was highly critical of the way liberal culture had accommodated Israel’s actions.

In his book, States of Denial: Knowing about Atrocities and Suffering (2000), Cohen shows, “that denial can masquerade as reason and reasonableness, making the unconscionable appear civilised, measured, even humane. He discussed three versions of denial: literal denial (it never happened); interpretative denial (it’s not what you think it is) and implicatory denial (we have to do it/it’s terrible, but it’s not our fault)”.

While it is more difficult, in the era of social media, for Israel to pull off literal denial, they still do so even in the face of incontrovertible evidence. As Chris Hedges frames it, Israeli politicians, military and media tell small lies, big lies and jaw-dropping lies.

The other burden flipped to Palestinians is to prove that things that did not happen actually did not happen (or not in the way Israel claims).

Disproving fabrications is an exhausting business, usefully so from Israel’s point of view. Refutation takes time and often comes too late to undermine what have become entrenched truths.”

Conclusion

The International Court of Justice has in effect declared a prima facie case of acts of genocide against Israel. It is telling that Fagan denies even the lesser charge of war-crimes.

In my article I support an international, independent, unbiased investigation of war crimes, and claims made by both sides. Surprisingly, Hamas seems keener to comply than Israel. Israel has, unsurprisingly, forbidden its doctors from speaking to a UN group investigating October 7th atrocities (see here).

One can only wonder why and what Israel needs to hide? Perhaps Israel fears that its propaganda, which Fagan swallows wholesale, will be unearthed? Or perhaps Fagan believes that the UN is a branch of Hamas?

(Disclaimer: Shuaib Manjra is a member of the University of Cape Town Council. This article reflects his personal opinion and not that of UCT or its Council).

https://www.politicsweb.co.za/opinion/israel-and-gaza-a-rejoinder-to-anton-fagan