PROFESSOR FAGAN – YOUR SLIP IS SHOWING

A response to Professor Anton Fagan

Introduction

Professor Anton Fagan’s response to statements issued by his colleagues in the UCT Law faculty, and the UCT Council, on the humanitarian crisis in Gaza, can but only leave one astounded. Published on the right-wing site Politicsweb, Fagan takes issue with the lack of nuance in his colleagues’ statement concerning Jewish victims of the 7^{th of} October terror attack within the Gaza envelope in Israel. That position is understandable, notwithstanding his lack of concern for non-Jewish victims of the same attack. However, he goes further and accuses his colleagues of anti-Semitism. He then goes completely unhinged in advocating for Israel’s genocide in Gaza, which forced Judge Dennis Davis to respond on the faculty group, that he was “saddened to read Anton’s article”. 

Fagan’s missive follows the predictable track of Zionist Hasbara: characterize Palestinians as the epitome of evil, and then justify the massive Palestinian civilian death toll through defence of Israel’s actions as reasonable.

Aside from its lack of collegiality and intention to silence courageous conversations, its factual errors are so patent, its partisanship so pronounced, and its logic so flawed, so as to force a response. A response difficult to construct because Fagan’s article reads more like a stream of consciousness than a rationally constructed argument. The sheer magnitude of his misrepresentations demands a longer response and hence I invoke Brandolini’s Law in defence. If you consult the very useful and necessary embedded references, the article will seem even longer. This article, in addition to dealing with the specifics of Fagan’s errors, attempts an understanding of the underlying ideology and bigotry that underpins his narrative.

Many events have occurred from commencement of this article, not least of which is South Africa's submission to the International Court of Justice. This detailed, factual, and legally sound submission resonates with, and amplifies much of what I had already written.

Why Black lives matter and anti-Palestinian racism

Independent commentators are a rarity in any political or ideological debate, however much they may preface their utterings with disclaimers of neutrality. Neither is neutrality possible, as we all are conditioned by race, religion, ethnicity, gender, sexuality, experience, our socialization and values, or lack of them.

Our personal biographies fundamentally mould us, our thinking, and our commitments.  A person who has borne the burden of apartheid, for example, would react very differently to a trigger of that experience than a beneficiary of Apartheid, or one whose inheritance is a lineage of Apartheid apparatchiks or Broderbonders. One whose biography is marinated in power and privilege, whose world is constructed and lived in the dominant normative, would rarely be invested in differentiating between the colonized and the colonizer; a colonizing war and liberatory violence; asymmetrical power and guerilla warfare; or that colonialism and apartheid  are in their essence violent – it is through violence that it establishes itself, maintains its hegemony,  perpetuates itself, and to quote Fanon is the ‘is the bringer of violence into the home and into the mind of the native’. This violence is so derived from a racialized view of the colonized subject as backward, unempathetic and irrational, that it deliberately dehumanizes them and turns them into animals, which makes violence against them seem only rational.

Those consumed by their own power and privilege would never grasp the burden of race, discrimination, or colonization. Conversely race is an everyday lived experience of black and brown peoples. Even absent a biological basis, its social construction is meant to oppress, exploit, and subordinate. The Black Lives Matter (BLM) movement, and the intersectionality it spawned, including Justice for Palestine, was a mode to make visible what is invisible, to give voice to what Arundhati Roy best describes as: ‘…the deliberately silenced, or the preferably unheard’. BLM brought to the fore institutional, systemic, and random violence against black and colonized people frequently invisibly hidden within the garb of liberalism. These moments bring to the fore the overt, subtle, and unconscious racism black and brown people face, and to shout loudly that their lives matter (without of course diminishing the lives of others). Privilege rarely allows you to see this in its nakedness, but it makes them uncomfortable. The reaction of the liberal conservatives was the slogan “all lives matter”; and the right wing responded with ‘white lives matter’. This is Anton Fagan’s “only Jewish lives matter” moment.

How is this relevant to Gaza?

As much as Zionism is seen by some as redemptive or irredentist; racism, violence and genocide against Palestinians is an irredeemable part of Zionism. There can be no Jewish state, no Jewish majority, without erasing the indigenous population. Violence, like in any colonial endeavour is only possible, rationalized and justified through racializing and dehumanizing Palestinians as a people, if they have not been made invisible. In a Press Club lecture in the United States, Gideon Levy a prominent Israeli journalist, distills in three points how Israeli society tolerates its violence towards Palestinians. The first is that the most Israelis consider themselves superior, or their lives of higher value than that of Palestinians; conversely, they dehumanize Palestinians as lowly, violent, and irrational. The third is that Israeli’s consider themselves victims - that while there have been brutal and longer occupations in history, never has the occupier and violator claimed to be a victim; not only a victim but with an exclusive claim to victimhood.

Through noxious racist discourse, used to brainwash Israelis from kindergarten to university and beyond, Israelis see Palestinians only as a threat – the inheritors of Nazism (see interview by Nurit Peled Elhanan). Zionism, and the settler movement was founded on racial hierarchies (see Arthur Ruppin ). (See The Toxic Other: The Palestinian Critique and Debates About Race and Racism).

This logic then permits Israel to systematically erase Palestinians and their identity physically, materially, historically, culturally and epistemologically.

Yehuda Shaul, a former IDF combatant and founder of Breaking the Silence, an organization dedicated to exposing IDF atrocities wrote about such racist incitement in the IDF:

“incitement, racism, and extremist politics have spread amongst the rank and file of IDF units. Artists were invited to perform for the troops and are emboldening these trends and especially the call to reestablish settlements in Gaza”. Popular Israeli performers playing to IDF soldiers have this to say about Palestinians:

“Gaza, you black woman, you trash. Gaza you bitch … Gaza you daughter of a huge whore like your mother … Gaza you whore” (Lior Narkis, a popular Israeli singer, in a performance for soldiers).

Other chants include “may your village burn, may the Gazans burn", “may their village burn, may Gaza be erased Gaza erased" as they heaped praised on Israeli terrorist leader Meir Kahane.

Fagan and the statement of Law Faculty members

Professor Anton Fagan’s execrable article is skimpy on facts, long on rhetoric, evades owning an argument, and writes in loops to provide himself with sufficient and plausible deniability.

Fagan’s mode of argument surprisingly reflects one which pervades our current toxic discourse. A tethering ideology, often twinned with bigotry, is its starting point, which then selectively uses, and subverts law, evidence, and history in the employ, service, or justification of that ideology. The drunk and lamppost analogy. This hackery has no fidelity to facts or truth, which are easily manufactured, and which serve as mere conveniences to confirm bias and advance a preconceived agenda. Fact checking is too tedious.

Fagan’s references sound alarmingly like an explanation by a Zionist acquaintance, who is part of a dialogue group I engage with, who when challenged to produce credible references for certain questionable assertions, replied with a quotable phrase: ‘I learnt it through osmosis”. An avowed atheist, he continued to regale with the history of Jews/Israel primarily relying on biblical mythology. Fagan is a firm believer in the IDF mythology, which evidently is his primary (and often only) reference point.

What is evident in Israel’s defenders within the UCT academy is how unsophisticated their arguments really are, relying purely on a vanishing veneer of credibility conferred only because they hold academic posts. They simply and crudely amplify IDF talking points. Fagan (and another colleague’s) objection to the UCT Council statement, passed without dissent by an incredibly diverse body, and which is very much imbued with an “all lives matter” ethos, is emblematic of their extremist position.

Aside from fidelity to facts, an acute sense of history helps us to ground events, as no event can be seen in isolation and always has an antecedent:  history is always present in the present. Fagan skims through some historic injustices against Palestinians before concluding that they don’t really matter.

Aside from that Fagan lacks even a modicum of humanity for Palestinians who are currently subjected to unfathomable violence, brutality, and genocide.

Thankfully Fagan’s colleagues, when confronted with the deliberate, premeditated, targeted, and publicly announced genocidal attack on Gaza by Israel, supported by western powers, felt a sense of understandable outrage. Who would not, when seeing in real time the (current) death of 9600 children, 6750 women, 1049 elderly and disabled people, 57 000 people injured, and 7000 still buried under rubble (50% of them children). When any reasonable person considers the following statistics, it is apparent that this goes beyond reprisal, revenge or targeting a particular group:

·         1.5 out of every 100 of Gazans has been murdered or is missing,

·         2.5 out of every hundred injured,

·         2% of Palestinian Christians in Gaza murdered by Israeli,

·         1.93 million people (over 85% of Gaza’s population),

·         70% of homes destroyed,

·         11 000 acres if agricultural land destroyed,

·         the murder of 18637 entire families,

·         murder of 374 healthcare workers,

·         murder of 142 UN staff,

·         23 hospitals and 53 clinics bombed out of service,

·         104 ambulances destroyed,

·         All bakeries destroyed,

·         over 200 archeological or historic sites destroyed,

·         the bombing of the Church of St Porphyrius, the world’s third oldest church, killing at least 18 people.

This meets every description of a disproportionate act of collective punishment, war crimes and crimes against humanity. When Israel by design uses starvation as an act of war, deprives an entire population of fuel, food, water, and health services, it goes beyond medieval barbarism. William Dalrymple describes it as a ‘Genghis Khan model of warfare’. When you link these actions to statements by Israel’s political, religious or civic leaders, many of whom speak of cleansing Gaza, this sounds eerily like a textbook case of genocide.  Admittedly, Fagan would not have had the benefit of reading South Africa’s application to the International Court of Justice on 29 December 2023, charging Israel with genocide against the Palestinians.

Demonstrating their essential humanity, UCT Law Faculty members committed to human rights or a basic sense of decency, issued a statement expressing concern at the inordinate violence perpetrated by Israel against the population of Gaza, linking it explicitly to a ‘worsening humanitarian crisis’.  A statement which by normal standards should receive universal support.

No doubt some faculty members were also exercised as academics and educators, by Israel’s targeted attacks on academia. Israel has completely destroyed 11 of the 14 universities in Gaza, carpet bombing the only two medical universities (IUG and Al-Azhar Universities). Professor Sufyan Tayeh, a world leading scientist and President of the Islamic University Gaza, and this family, was murdered in a targeted attack, as was Professor Refaat Tayeh (who received numerous warnings of his imminent murder). Tens of other faculty members and academics were murdered. Or UCT Faculty would have been outraged by the more recent targeted murder of Dr Said al Zubda, president of the University College of Applied Sciences in Gaza, along with his wife and children, or that nearly 300 UN and public schools are destroyed, depriving over 88 000 students of a right to education.  

Fagan’s canard of anti-Semitism

Only the meanest spirit would find the statement by faculty members objectionable. The perverse, and extremist would label - either through expression, allusion, or implication - this pure human sentiment as anti-Semitic. The now well-honed accusation of anti-Semitism becomes a useful distraction and propaganda tool to shield Israel from criticism for the genocide it is committing in Gaza. Israel supporters rather than attempt to defend the indefensible, go on the offensive and tangle up human rights advocates into defending themselves against these false accusations. Fagan employs this trickery in a loop: claiming that his colleagues’ statement could only be attributable to anti-Semitism; but that he doesn’t think his colleagues are consciously anti-Semitic; and then proceeds to point out why their statement is driven by anti-Semitism (as I assume would apply to the Council statement as well).

Caitlan Johnstone pithily captures this perverse weaponization of antisemitism:

The most despicable thing about the way Israel supporters smear Israel's critics as anti-Semites is that they are exploiting a very healthy impulse to advance a profoundly sick impulse. They knowingly exploit the fact that the further to the left someone is on the political spectrum the more likely they are to (a) support Palestinian rights and (b) be very receptive to any suggestion that they might be acting in a racially insensitive way.

As we have seen globally, and particularly at universities in the global north, this now well-worn tactic is an act of silencing, shaming, gaslighting and policing opposition to genocide, employed in uncritical defense of Israel. Not only do such people attempt to smother a healthy impulse, but they often do also so in alliance with real anti-Semites (the now pervasive anti-Semitic Zionism).

Risible as Fagan’s tactic is, he plumbs further depths when he considers his Muslim and Christian colleagues hardwired for ‘anti-Semitism’. In response, one can only wonder whether Fagan’s own ‘inequality of concern’ in failing to condemn Israel’s genocidal actions in Gaza, the humanitarian catastrophe, or demonstrating empathy for Palestinians, as his own hard-wired religious bigotry against Gazan’s Muslims and Christians, his own anti-Palestinian racism, or just crude racism. Or, whether his fidelity to Zionism as a supremacist ideology considers some lives superior, more valuable, or more ‘grievable’ than others.

While Fagan falsely castigates his colleagues for attributing blame to Israeli victims, his ironic characterization is one that Palestinians ‘bore some moral responsibility for it (violence against them), with the corollary that the perpetrators’ responsibility (Israel’s) was correspondingly reduced’.  He spends his entire article attempting to prove this thesis.

Fagan’s voice would have been considered a serious one, even his whataboutery considered, had he displayed a consistent, principled, and demonstrable commitment to justice in Palestine and elsewhere, not where his proclivities are merely tribal; or when his history of violence in Gaza begins on the 7^th October 2023.

Hannah Arendt, at great risk to herself, when reporting on the trial of Adolf Eichmann, deviated from the constructed consensus that Eichmann was the devil himself. Arendt wasn’t trivializing the Holocaust, as she was accused of, rather she was amplifying it. Her phrase, ‘the banality of evil’, now etched in popular consciousness, was meant to convey that ‘Eichmann was no devil, that perhaps the devil didn’t exist. She had reasoned that there was no such thing as radical evil, that evil was always ordinary even when it was extreme—something “born in the gutter …  or … of utter shallowness.” Her argument was that evil was designed, constructed, executed, amplified, and justified by ordinary people, who go about their ordinary, and often dull lives.  To paraphrase a friend who brilliantly captured Arendt’s essence: all forms and levels of evil always have architects, direct sponsors, and executioners; passive beneficiaries, quiet collaborators, silent shareholders, and self-absolving spectators. And then you have those writing editorials justifying genocide, or those constructing a weak and shaky legal scaffold.

Who speaks for UCT, and the struggle for power

But one should see Fagan’s attack on his colleague as more than a mere defence of his ideological propensity towards Israel, its longer history is embedded in the struggle for the power of the narrative, or who speaks for the university.

The relationship between a university and society should be understood within the prism of power. The main function of elite higher education institutions is to reproduce power and the infrastructure which attends it. If society is an organism, the university is the clonal petri dish. But in nature, nothing is reproduced perfectly as evolution is an essential feature of every biological system. And evolution within the university leads to a divergence from the staunchly guarded power structures that define our existing elite, of which Fagan is a part.

Transformation of our university, violently opposed by those previously wielding power, means that these spaces are now animated by young, highly educated, and extremely intelligent people, (many black), who invariably think differently across generations, and who threaten the status quo. The grotesque threshing by the right-wing at UCT and elsewhere is a fear of losing their historical dominant control of the university spaces and is part of a larger effort to direct and control the evolution of thought in society in their own class/racial interests and power. Why else would the white liberal elite at UCT be so silent on Fagan’s grotesque article?

In this context these guardians render values as relative, speech only valuable insofar as it isn’t performed, and lies dormant in the realm of abstract ideas, like “freedom”, ‘free speech” or “academic freedom”(see Moor). They imbue these values with meanings or interpretations to protect their power and maintain the status quo, ignoring higher virtues of justice (in its various forms), freedom, equality. As the saying goes: “a liberal is someone who opposes every war except the current war and supports all civil rights movements except the one that’s going on right now”.

It is through this prism that we should view the most brutal crackdown on free speech and academic freedom at universities in the global north, since the McCarthy era crackdown on the political left. Perversely, these universities have constructed an architecture and structures to silence student voices on Palestine, faculty commitments, free speech and directly violated academic freedom, and institutional autonomy, in direct violation of their stated commitments to the Chicago Principles. To advance their censorship, they create new rules, invoked archaic ones, and twist and mangle existing ones (see here). Or they create new ‘crimes’ – anti-Semitism and plagiarism. University funders, who historically wielded soft power now manifest their brutal force, as evidenced at Harvard, UPenn and MIT.

As with Fagan, sometimes censorship is attempted through ‘censureship’ (via accusations of anti-Semitism) or ‘lack of nuance’. Sociologist Muhannad Ayyash argues that many weapons have been employed against Palestinians, but the ‘lack of nuance’ is the most prominent current one. He asks what does this mean at a time of extreme Palestinian suffering? From the perspective of those weaponizing this word, it means the history and context of Israel-Palestine cannot be recalled, and he …

describes this as a form of toxification, of any perspective rooted in the aspirations of the Palestinian people and their lived experience of occupation and siege, as invalid, irrational, disruptive or simply “too unnuanced” for any respectable discussion of the politics of Palestine-Israel. Accusations of “lack of nuance” often morph into accusations of anti-Semitism.

Jewish horror at 7^th October

Many of my Jewish friends, colleagues and comrades were undoubtedly viscerally affect by the 7^th October attacks. Some knew people who were murdered or abducted or had affected family in Israel or the Gaza envelope, some of whom were peace activists. The overriding politics was understandably lost within this grief, as some of them retreated into a laager. This collective grief was exacerbated with the trumpeting of the Holocaust analogy - a neat fit into the narrative of Israeli monopoly of victimhood; a victimhood Hannah Arendt describes as “a historical principle stretching from Pharaoh to Haman—the victim of a metaphysical principle”. A diet every Israeli child is fed from birth, comparing Palestinians to Nazis or Amalek, which Netanyahu invoked in his genocide in Gaza. This biblical narrative in the book of Samuel, is carte blanche for war crimes, dystopic violence, and genocide.   

But there’s another view: for first time Israelis experienced what Palestinians routinely experience as a daily reality – the precarity of life and existence, steeped in Israeli violence, dispossession, brutalization, gender violence, murder, ethnic cleansing, humiliation, control of movement, detention without trial and a military that makes up its own rules of engagement in the occupied territories. (see Breaking the Silence). Israelis on the other hand can have a rave 10 minutes from Gaza’s concentration camp, or live 15 minutes away from the West Bank but remain oblivious to Palestinian life, brutalization, and the daily war against them for the past 75 years (no different to whites in apartheid South Africa). For the first time this generation of Israelis saw the war close to home.

Israeli’s also felt betrayed by the incompetence of their intelligence and military services designed to protect them. A military that dominates Israel’s discourse, boasts of being among the best in the world, and Israel’s primary mode of managing the ‘Palestinian problem’, but were embarrassingly outwitted by a ragtag group of part-time resistance fighters, with rudimentary military hardware. The cause was clear: Israel’s right-wing government, with a greater interest in expanding the occupation and protecting the illegal settlers in the West Bank, moved resources to these areas leaving those in the Gaza envelope exposed.

A further reason is that the very existence of Israel, which is punted as necessary for Jewish safety, became anything but that. Of course, the discourse of Zionist politicians is a tag between two contradictory narratives: portraying Israel as a safe haven for Jews; or a country facing existential threat, depending on which serves their interest at a particular time.  

Finally, when Israelis looked in a mirror, they saw what happens when you confine over two million people in a concentration camp, limit their access to food and clean water, and regularly massacre them in a term coined by Israel as ‘mowing the lawn’. The Gaza prison break mirrored the Jewish Ghettos in Nazi occupied Europe rising up!  For those aggrieved by this comparison, read Masha Gessen’s eloquent and elegant article In the Shadow of the Holocaust in The New Yorker . Or her acceptance speech as the winner of the 2023 Hannah Arendt Prize , after being deplatformed in Germany for her New Yorker article on why historical comparisons are necessary.

The salutary lesson is that nobody is guaranteed safety unless everybody can live in peace, safety, and justice. Only through peace with Palestinians and its neighbours, which Israel has spurned at every opportunity, will Israelis find peace. To paraphrase Shlomo Sands, if only Israel would consider rationality now that all its other options have been exhausted. Jews around the world must find safety in their own countries, which can only be guarantee if we jointly struggle against racism, Islamophobia, anti-Semitism, Xenophobia and assert the rights to gender and sexual equality, and that of refugees. The safety of Jews is imbricated in the safety of all minority, marginalized and discriminated communities. Antiquated ideas of ethno-nationalist and religious supremacist states should find no place in the modern world, where secular democracy remains the only route to true equality and safety. This is a growing movement among younger Jews, which traces its roots to early Jewish anti-Zionism and the Bundist tradition.  Fagan remains stuck in a supremacist past of racial and ethno-nationalism.

6^th October for Israeli Jews was a normal day. For Palestinian it was a continuing nightmare, facing a continuous 75-year war against them by Israel. Most Palestinian resistance fighters had never had a normal day in their lives; had never left Gaza, and aside from the daily violent and occasional flare ups had lived through periodic brutal Israeli attacks in their short lives (2012, 2014, 2021, 2022). Their lives in this concentration camp/open air prison had a miserable past, an absent present, and a bleak future. It is worth noting that 70% of Gazans are refugees from the 1948 Nakba, and that some of the settlements attacked were their ancestral homes now occupied by Jews.

History, Colonialism and Apartheid

While Fagan denies that Palestinian resistance attacks on 7^th October can be attributable to Israel’s historical behavior towards Palestinians – including the expulsion of 800 000 Palestinians denying their right to return; the historical and present theft of their lands, the illegal occupation or blockade of Palestinian territories of the West Bank, East Jerusalem, and Gaza, or the daily violence they face, don’t really matter. Fagan doesn’t provide an alternate reason, but a reasonable presumption is that he attributes these attacks to pure anti-Semitism.

Israeli academic Professor Nurit Peled-Elhanan, opined in a faculty social media group that the attacks reminded her of the French philosopher Jean-Paul Sartre’s musing on race relations: “‘After so many years that the neck of the occupied has been suffocating under your iron foot and suddenly was given a chance to raise his eyes, what kind of gaze did you expect you would see there? We saw this gaze”. Hours later, she was suspended by the institution for “displays of understanding to the horrific act of Hamas … and expressing justification to the heinous act.”

Peled-Elhanan lost her daughter, Smadar in a 1997 terror attack and is a winner of the European Parliament’s Sakharov Prize for human rights and the freedom of thought. Aside from pointing out the laziness in Fagan’s analysis, it points to significant censorship in academia to explore underlying causes of Palestinian violence.

Apartheid

But Fagan takes his moral blindness a step further when he denies that Palestinians who survived the 1948 Nakba and make up 20% of the Israeli population, are discriminated against.

 I have neither time or space to demonstrate in any detail Israel’s discrimination against Palestinians, except to front the Nation State Law (part of the Basic Law, as Israel has no constitution) which enshrines Jewish supremacy, and by definition discriminates against non-Jewish citizens (see here). Adalah, a Palestinian NGO has documented over 50 laws which through intent, or in effect discriminates against Palestinians living in Israel.

Fagan doesn’t pronounce on discrimination against Palestinians in East Jerusalem or the Occupied Palestinian Territories.  I will assist him with references from a range of bodies, including Israeli human rights organizations, which unequivocally demonstrate that Israel practices Apartheid against Palestinians from the ‘River to the Sea’.  (Human Rights Watch, Amnesty , Badil , OHCHR , Amnesty USA , HSRC , Havard Law , Common Dreams Yesh Din , B'tselem , UN ESCWA report).

Apartheid is exercised in all five fragmented areas of Palestinian existence: those living in Israel, the West Bank, East Jerusalem, Gaza, and refugees in the Diaspora. This deliberate fragmentation of the Palestinian polity is  termed politicide - “the extermination of the Palestinian body politic in Palestine, namely, the systematic eradication of the Palestinian ability to maintain an organized political community as a group”.

Colonialism

I must admit that Fagan’s logic for denying that the founding of Israel involved acts of colonization evades me. His reasoning, which is not novel, is that the establishment of Israel (or the continual expansion of its borders) cannot be considered colonialism because ‘some of Israel’s original Jewish families had lived there for hundreds of years’.

It uncontestable that Jews have live in Israel not for hundreds, but for thousands of years. These Arab or Palestinian Jews were always part of the fabric of that society, and one may argue, as Ben Gurion did at some point, that Palestinian Muslims and Christians were Jewish converts to Islam and Christianity respectively, with the expansion of both faiths and as was the historical trend. The fact that some Jews are indigenous to Israel/Palestine doesn’t mean that all Jews are indigenous (see Shlomo Sand). But not only is his line of argument weak, doesn’t hold up to historical scrutiny, but unhelpful. If we invoke some bizarre 3000-year historical right, it will require a reconfiguration of the world as we know it and will challenge notions of states and citizenship fundamentally, unless he believes in some form of Jewish exceptionalism. To be sure, the Ashkenazi colonizing project began with the founding of Zionism in the mid-19^th century, and to quote Theodore Herzl, which is as relevant now as it was then: ‘our thought is that the colonization of Palestine has to go in two directions: Jewish settlement in Eretz Israel and the resettlement of the Arabs of Eretz Israel in areas outside the country.’ 

Fagan however fails to characterize the Zionist project. How does he characterize the expulsion of 800 000 Palestinians by Zionist forces, the destruction of over 300 villages, the murder of 20 000 Palestinians in 1947/1948. Or that Palestinians who remained in Israel post- 1948 were prevented from returning to their homes, while their property and assets were confiscated through a Kafkasque “present-absentee law’. The Jewish National Fund and the Jewish Colonization Association were the major beneficiaries of this stolen Palestinian property. Palestinians in Israel were subjected to martial law for about 15 years.

Israel’s colonization project was not sui generis, as anthropologist Patrick Wolfe explains in his work on settler-colonialism. While most of his work was about Australia it’s parallels to Israel are unsurprising:

 “That settlers operated according to the perception of terra nullius – empty land – despite the obvious occupation of the land by indigenous peoples with complex socio-cultural practices and political economies. In order to reconcile the colonial imaginary of empty land with the embodied experience of settlement that brought colonials into direct and sustained contact with indigenous peoples, settler cultures develop complex narratives that erase indigenous people’s humanity…

Thus, the settler colonial perception of empty land became a social ‘structure’: a conceptual framework that supported the invasive settler colonial society by obscuring, submerging or erasing indigenous presence on the land. Thus “invasion is a structure, not an event”.

Settler colonialism operates through a “logic of elimination” – that is to say, that settler colonial power both requires and is generated by the destruction of indigenous peoples and polities. The elimination of indigenous peoples is a continuous feature of settler societies, both before the consolidation of the state and also after.

Or as Israeli historian Ilan Pappe explains:

“Unlike conventional colonial projects conducted in the service of an empire or a mother country, settler colonialists were refugees of a kind seeking not just a home, but a homeland. The problem was that the new “homelands” were already inhabited by other people. In response, the settler communities argued that the new land was theirs by divine or moral right, even if, in cases other than Zionism, they did not claim to have lived there thousands of years ago. In many cases, the accepted method for overcoming such obstacles was the genocide of the indigenous locals”.

Mahmood Mamdani in ‘Neither Settler nor Native’ in differentiating between an immigrant and a settler defines the former as coming unarmed to settle into an existence polity, which was the case of Jewish immigration to Palestine before the Zionist movement. The settler comes armed with weapons and a national agenda and attempts to subvert and monopolise the polity:

"Immigrants are unarmed; settlers come armed with both weapons and a nationalist agenda. Immigrants come in search of a homeland, not a state; for settlers, there can be no homeland without a state. For the immigrant, the homeland can be shared; for the settler, the state must be a nation-state, a preserve of the nation in which all others are at most tolerated guests”.

Jewish immigration to Palestine was continuous through centuries, mostly for religious reasons. The Zionist colonization project saw settlers moving into the area from the late 19^th century, arriving in batches as did Europeans in most settler colonial societies.

In her book “Doppelgänger Politics,” Naomi Klein frames the logic and justification of Israeli colonialism slightly differently. She argues that it employed the twisted logic, in the wake of the Holocaust, of “colonialism framed as reparations for genocide …….it was as if the quest for equality were being reframed not as the right to be free from discrimination, but as the right to discriminate.” Zionist response to Western opposition to this project was “if you could establish your empires and your settler colonial nations through ethnic cleansing, massacres, and land theft, then it is discrimination (anti-Semitic) to say that we cannot”.

She further argues that while European colonization was enacted from a position of strength, the Zionist claim was based on Jewish victimization and vulnerability. The tacit argument, Klein claims, was that “Jews had earned the right to an exception from the decolonial consensus – an exception born of their very recent near extermination.”

If Fagan discounts the analytical framework of colonialism, then the only alternate is some of kind of religious, moral, or historical right. Perhaps he believes Israel is affirmative action for Jews; or a race-based admission policy to Israel. Fagan, who has vigorously opposed affirmative action in South Africa, even in university admissions, denies restitutive justice to black South Africans dispossessed 300 years ago, yet advocates some warped form of restitution to Jews from 3000 years ago!

Teaching law of a law professor

International law stands as an unwavering bulwark against the machinations of those who seek to undermine its principles and subvert it. The lessons gleaned from the atrocities of the Holocaust and the subsequent Nuremberg and Tokyo trials resonate in the corridors of global justice. The Nuremberg Code, the Geneva Conventions, the International Criminal Court, the International Court of Justice, war-crimes tribunals, and the Genocide Convention form an indomitable legal framework. These instruments, born from the ashes of history's horrors, meticulously define war crimes, crimes against humanity, and genocide.

The alleged 'legal muddle' Fagan posits is a feeble attempt to obfuscate the stark realities. The distinction between jus in bello and jus ad bellum, emphasized by the UCT Council, is not only apparent but crucial. Fagan's misinterpretation, bordering on deliberate blindness, disregards the belligerent occupation that Israel maintains over Palestinian Territories, including Gaza. His erroneous premise that Gaza is an independent state crumbles under scrutiny or international law. To be sure, Gaza is considered occupied territory under international law.

Israel's claim of a "right of self-defense" against Palestinian resistance is a legal fallacy.

Firstly, The United Nations Resolution 37/43 unequivocally affirms the legitimacy of the Palestinian struggle for independence, emphasizing the right to resist foreign occupation by all available means, including armed struggle. In this context, Israel's actions in Gaza do not qualify as self-defense under international law.

United Nations resolution 37/43, dated 3 December 1982, and relating specifically to Palestine and the inalienable right of Palestinians “reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”

Secondly, Article 51 of the UN Charter, which delineates the right of self-defense, is clear and categorical. This right is triggered when an armed attack occurs, originating from another member state, not from a territory under the belligerent occupation of the state claiming self-defense. The illegal occupation of Palestinian territories by Israel nullifies any claim of self-defense concerning attacks from Gaza. In essence, invoking Article 51 in this scenario is a distortion of the charter and a violation of the very principles that underpin international law. The international community, save a few apologists, has resoundingly rejected such misinterpretations, and affirm the sanctity of established legal frameworks.

Thirdly, The UNGA Resolution 3314 (XXIX) defining aggression, and which sets the terms of aggression, asserts the rights of Palestinians:

Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.

Self-serving legal interpretations, or political propensities cannot override the fundamental right of Palestinians to resist against Israeli’s illegal and belligerent occupation of Palestinian territories. To put it simply, you have no right to defend an illegal occupation.

Gaza is recognized as an occupied territory by the UN, EU, the UK and Human Rights Watch.

Moral philosophy

Moral philosophy, which I suspect is an integral part of legal reasoning, is broadly divided into two camps – those who employ categorical moral reasoning, or like Fagan, employ consequentialist moral reasoning. Categorical moral reasoning is rights based, and simply put would proscribe the murder of a child, civilian or bombing a hospital, because it is wrong.

Consequentialism or utilitarian logic considers a desired outcome as the arbiter of the desirability of specific acts. In this case Fagan justifies genocide against a civilian population based on a military objective. He spends a considerable part of his article justifying this, burdening international law with non-existent justification.

Further, Fagan and his ilk impose no moral standards on Israel. Its utilitarian logic is always accepted, as if the morality is embedded in this logic. Conversely, while Israel morality is taken as a priori, it is demanded of Palestinians to always have a moral position and judged on a different, or higher set of standards. For those like Fagan Palestinian life lacks independent value, it is always contingent – contingent to the interest of the settler-colony (see Judith Butler: Precariousness and Grievability).

Israeli violence is always justified, but no act of Palestinian resistance is seen as non-violent. Peaceful protests, marches, BDS, in fact every act of passive resistance, is seen as violence against Israel and subject to brutal state violence. (see Judith Butler, “Legal Violence: An Ethical and Political Critique”).  

Even when Fagan is engaged in moral obscenity justifying Palestinian genocide and considering Hannah Arendt’s ‘banality of evil’ thesis, I do not believe he considers himself a bad person.  I am sure his colleagues will attest to his personability. Intelligent people with some fidelity to a moral compass (however broken it may be), or even a virtue signal to ethics, must square the circle of explaining Israeli genocide. Having grown up unquestioningly believing in the moral cause of Zionism, Israel as an ideal state, the IDF ‘the most moral army in the world’ and Jewish values as superior to other values, forces an attempted reconciliation of cognitive dissonance:  the zionist fairytale versus a dystopian reality – a crudely fascist, genocidal, racist state (for non-Jews at least)?

Blaming the victim

How do the Fagan’s of the world find an easy way out of this conundrum? With a full deck of historical cards to play, they blame the victim. Palestinians are responsible for the violence against themselves. The genocide in Gaza is entirely of the Palestinians own making. While invoking victimhood going back centuries, Zionists’ amnesia for Palestinian suffering is pervasive, as history started on a particular date in October 2023.

How do the Fagan’s dehumanize Palestinians to assuage their conscience in supporting the murder of civilians? They have a two-in-one, get-out-of-jail card:  accuse Palestinians of using other Palestinians as human shields. It is the same old colonial canard of weaponizing brown bodies against other brown bodies. This dehumanizes Palestinians in two ways – the first is by demonstrating their lack of concern for their own people by instrumentalizing them as human shields. This then marks both the civilians and resistance fighters as legitimate targets. There is a simple problem: it is a lie, repeated ad nauseum by the Israeli propaganda machinery without a shred of verifiable evidence, and a strong denial by Palestinians.  Conversely, there is video evidence and testimony, of Israeli soldiers using Palestinians as human shields – because, and the irony shouldn’t be missed, Israel knows Palestinians won’t shoot at such hostages. The underlying racist assumption about the colonized should not be missed.

The second justification in murdering Palestinian civilians is that resistance fighters hide amongst them. Any student of history or politics would know that resistance fighters in any war of liberation emerge from, are part of, and live among civilian populations (South Africa, Vietnam, Ireland, and every African liberation struggle attests to this). Further, any anti-colonial struggle is waged as an asymmetrical conflict – a conventional army against a guerilla army. The poor colonized population lacks sophisticated arms.

Do Palestinian resistance fighters, exercising their legal right to a freedom struggle, operate close to civilian areas?  Now consider that Gaza is one of the most densely populated areas in the world - at 365km² (41km x 5 -12km), is home to 2.3 million people (6300/km²). Gaza City alone has a population of 650 000. It is inevitable that Palestinian resistance fighters will operate close to civilian areas, simply because no other space exists. Undoubtedly Palestinian use tunnels for survival and for military purposes, as they have a right to both.

Dr Gabor Mate, a Holocaust survivor and psychiatrist wrote in a beautiful essay,

The Palestinians use tunnels? So did my heroes, the poorly armed fighters of the Warsaw Ghetto. Unlike Israel, Palestinians lack Apache helicopters, guided drones, jet fighters with bombs, laser-guided artillery. Out of impotent defiance, they fire inept rockets, causing terror for innocent Israelis but rarely physical harm. With such a gross imbalance of power, there is no equivalence of culpability.

I will repeat an earlier legal assertion, which is that Israel cannot claim a right of self defence against a population under its belligerent occupation. Palestinians have a legal right to struggle for liberation. Even when Israel launces an operation it must do within the principles of proportionality, distinction, precaution, and humanity. Israel’s actions patently violate each of these.

Fagan’s justification for genocide

However, invested as he is in his inherited ideologies, Fagan and his ilk cannot fathom that settler colonial regimes the world over behaved the same, where murdering civilians was not an aberration, it was deliberate, part of a strategy honed over centuries – in the USA, Australia, Canada, and South African. For the settler-colonial project the native doesn’t exist. If they do, to the settler they become constant reminders of their actual existence. The settler project then fulfils its prophecy and obliterates their existence – either through murder or ethnic cleansing.

A Jewish state would be impossible without a genocide. With a commitment to a Greater Israel, mere Palestinian existence evokes an anxiety of incompletion by Zionism, who must constantly deal with this ‘problem’ (as Palestinians are viewed) of a demographic threat to their pure Jewish state. (The same language used against Black African refugees in Israel.) Zionism has long yearned to remove this ‘anxiety of incompletion’ by eradicating Palestinians. Gaza is an opportunity – a list of opportunities to reduce the Palestinian population dramatically: 1948, 1956 and 1976. This is the underlying strategy of Israeli Plan Dalet and the Dahiya Doctrine.

Gaza must be seen against this backdrop, and Fagan’s justification as part of this broader objective. In the present he justifies the conduct of the IDF on the basis of the ‘war objective’, and the IDF narrative, even when there are patent violations of principles of proportionality, distinction, precaution, and humanity.

Fagan’s justification for violence is laid out below, (using the guise of rhetoric):

·         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.

·         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.

But Fagan’s moral vandalism is further evident, when he justifies collective punishment and war crimes, as defined in the Geneva Conventions. To be clear, he believes that the depriving an entire population of food, water and fuel is permissible:

“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”.

Fagan’s moral depravity reaches its nadir with his number’s calculus. In a racially offensive value assignment, he pits the value of Jewish life against Palestinian life, seeking a ratio of justification for Palestinian deaths. One can only wonder what ratio of equality (Palestinian lives to Jewish lives) is acceptable to him – 10:1; 20:1 or 40:1, as the civilian casualty currently stands. The threshold, according to Fagan, must be determined by the military, with a sliding scale of allowable deaths depending on the ‘value’ of the military target.

“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?”

Fagan’s moral truancy doesn’t end there, again blaming Palestinians for their own deaths. To repeat, Israel’s utilitarian logic is always accepted, as if the morality is embedded in its logic.

“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”

“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.”

For those who have bothered to study the data, there is overwhelming prima facie evidence of both (1) civilians being directly targeted and (2) which explains the excessive number of civilian deaths. Fagan’s case has no fidelity to, or interest in evidence, but rather his commitment is to a pre-conceived ideological premise.

Even if for argument’s sake we assume that Fagan’s assumptions about tunnels under hospitals, schools or civilian buildings is true, does this justify bombing entire residential blocks murdering all its inhabitants? Does it justify bombing hospitals out of service, schools, refugee centres, churches, and mosques, even for a military objective?  Fagan’s moral calculus permits him to believe that murdering 500 civilians in a military cause would be justified?

Some of Israel’s apologists have claimed that to define a genocide, number of deaths is immaterial. This is a self-serving justification to classify the Hamas attacks on 7^th October against Israelis as a genocide. In other words, they deem to classify a military operation resulting in the death of 700 – 800 civilians as a genocide, but the planned, announced, orchestrated, and targeted attacks by Israel on civilian populations resulting in the death of over 20 000 civilians is not considered a genocide!

Evidence of Israel targeting civilians

The Dahiya Doctrine is an established Israeli military doctrine with a stated objective, and a military strategy to cause maximum civilian damage. This unhinged colonial violence is embedded within the DNA of Zionism. When the evidence is sifted there is more than ample evidence of thousands of civilians being targeted as civilians (and the murder of entire families) – unrelated to military operations, or collateral damage. There is unequivocal evidence of Israel targeting civilian infrastructure, hospitals, clinics, schools, refugee centres, churches, mosques, universities, and bakeries.  On 28^th December Israel admitted to attacking a refugee camp killing over 70 people, and then apologised for using the wrong munition!  (see here). There’s evidence of snipers targeting doctors, children and civilians attempting to return home to northern Gaza or travelling to ‘safe spaces’, or bombing ‘safe spaces’ after being declared so.

Fagan’s logic does not explain the targeted murders of:

·         specifically of doctors and health care workers,

·         journalists, and academics.

·         babies in incubators.

·         snipers murdering the Gift of the Givers head of mission in Gaza,

·         UN workers (more UN workers have been murdered than anywhere else in the world in history),

·         the attack on the offices of the Red Crescent Society,

·         and media offices.

Al Jazeera has footage of civilian bodies, who were killed execution style, piled in Shadia Abu Ghazala School in Northern Gaza – men killed in front of their families. Or bulldozers were used by Israel to crush and bury Palestinians alive outside a hospital, as they sought assistance. He doesn’t explain why four pregnant women were shot to death while raising white flags on their way to hospital, and then run over by IDF bulldozer and their bodies left to rot (see here).  The tales are too ghastly (murder of UN worker and 70 members of his family), and too numerous (Bearing Witness). But the point is made. Fagan, like a propagandist simply elides over what does not fit his narrative.

Let me be clear, this is not unintended collateral damage. 972mag magazine’s investigative piece, which interviews insiders in the Israeli military, exposes the Israeli strategy to cause maximum disruption of civilian life, and civilian hope, by attacking what they term civilian “power targets” with no military presence or links. These include hospitals, government buildings, civil infrastructure, historical mosques, churches. Their objective of this violence is to boost the morale of the Israeli public and attempt to turn Palestinian public opinion against Hamas in the Gaza strip (prior to the war Hamas had only 17% support).  

The article exposes that Israel knows exactly the civilian cost of any operation, many of which are AI generated. It demonstrates Israel’s callous disregard for Palestinian lives. It evidences Israeli knowledge of potential civilian casualties in any operation, deliberately targeting Palestinians civilians, and targeted assassinations in what the article calls a ‘mass assassination factory’, even at the cost of huge civilian casualties. By anyone’s definition, including the Geneva Convention, these would be considered war-crimes, except for Fagan, who remains a firm believer.

The murder of three Israeli hostages by the IDF, despite waving white flags is emblematic of the Israel’s callous disregard for Palestinian lives. These hostages were executed by Israel because they thought they were Palestinians. Weeks earlier an Israeli Jew, who saved other Jews from a terror attack, was murdered in cold blood by the Israeli military because they thought he was Palestinian.

Let me end with the tragic case of Al Jazeera Gaza Bureau chief, Wael al-Dahdouh. His wife, 7-year-old daughter, and 15-year-old son were murdered in a targeted airstrike in October. On the 8^th January in another targeted airstrike Israeli murdered his 27-year-old son, Hamza, also a journalist, and two other journalists travelling with him in a car. The IDF has admitted to targeting the car. Al-Dahdouh himself was also injured in an attack that targeted him a month ago. It is incontrovertible that Israel is targeting him as a journalist for bringing its war crimes to the world.

What about the West Bank?

Gaza should never be seen as some independent enclave outside of broader Palestinian nationhood.  Gaza, the West Bank and East Jerusalem are irrevocably part of same whole, however much Israel may want us believing differently. This deliberate differentiation attempts to mask concomitant violence against Palestinians in West Bank, accompanying the genocide in Gaza.

Fagan elides the West Bank or East Jerusalem where there’s unprecedent levels of violence against Palestinians. The tic of those conditioned to repeat ‘what about Hamas’, must be medicated by pointed them to the West Bank where, despite Hamas’s absence, in the last three months there’s been over 340 murders of Palestinians by Israel, over 80 children killed (UNICEF data), and ethnic cleansing of 20 Palestinian communities by the Israeli military and settlers. There’s been nearly 24 000 assaults against Palestinians in the West Bank and over 5000 individuals arrested including 260 minors, most without charge.

2022 was the worst year of Palestinian in the West Bank. By October 2023 the numbers of deaths, land theft and description had exceeded the figures for 2022. Just 48 hours before the 7^th October attacks Jewish settlers conducted a pogrom in Huwara, a Palestinian village in the West Bank (Huwara).

Knesset member, Meirav Michaeli last week presented a report documenting 2023 as a record year of settler violence against Palestinians in the West Bank, with shocking testimonies of IDF soldiers defending, assisting, and cooperating with settlers in their violence. It is now established that settlers serve as the extra-legal, advanced guard of the Zionist state to establish facts on the ground, which is later legalized.

The exterminatory logic of the Zionist colonial entity prevails in the West Bank, as much as in Gaza.

Let us reverse Fagan’s logic.

A simple test of moral philosophy is internal consistency – would the principles you proffer in the case you advocate hold if you flip it to apply to your adversary. To state my case: if Israel is justified in its violence, and its level of violence, as per Fagan’s logic, do Palestinians have similar rights or justification, considering Palestinians have just cause and a legal right?

Using Fagan’s military logic, and based on the assertion of the right of Palestinian to freedom and self-determination, and to and overthrow a regime of colonialism and racial domination, even violently, what is acceptable?

The first premise would be that an Israeli military person would reasonably be considered a legitimate target of a military operation. How then do you then define a civilian in Israel, when, to use a common phrase, “every Israeli civilian is a solider without a gun, and every a solider a civilian with a gun”. If you extend this and consider compulsory conscription, the reserve forces, the entire architecture of the military state, the universities which are central to much of this, all the illegal settlements … what in Fagan’s moral calculus would be acceptable targets for Palestinian fighters? And how many civilian casualties would be acceptable in the Palestinian military objective?

Would it be permissible for Palestinians to kill an entire family when targeting a military operative; a member a racist, genocidal political party; or one engaged in the architecture of Palestinian oppression? Would the permissible number of Israeli deaths be commensurate with the nature of the target? Would it be permissible to bomb an entire apartment block, with all its inhabitants, to target an extremist settler leader or IDF foot-soldier?

What of the majority of Israelis, who, as polls indicate, believe that Israel did not use sufficient firepower in Gaza and support ethnically cleansing Gaza?

To take this devil’s advocacy further, if Israel has the right to eradicate Hamas, what concomitant right do Palestinians have? To quote Mate again: “Take the worst thing you can say about Hamas, multiply it by 1,000 times and it still will not meet the Israeli repression and killing and dispossession of Palestinians”.

To extend this argument, and using Fagan’s morally bankrupt calculus, is 700 Israeli civilians killed by the Palestinian resistance an acceptable number in a war of resistance and as collateral damage? To continue his argument, what if these Israeli’s were aware of Palestinians being confined to a concentration camp about a kilometer from where they decided to have a music festival; or that some of these Israelis had picnics and cheered the last Israeli massacre in Gaza?

Can the moral calculus integrate the fact that much of the Gaza envelope which was attacked by Hamas is land stolen from Palestinians and now populated by Jews: Sderot is Najd depopulated of Palestinians; Ashkelon is the depopulated Askalan. Some of those kibbutzim were historically used by Israeli terrorist organizations, like Palmach and Hagganah, to conduct pogroms against Palestinians.

Does any of this justify a civilian death? I have a very different moral calculus to Fagan who believes in the primacy of a military objective, rather than the primacy of human rights and the value of all human life. Perversely, to use Fagan’s argument, that a third of the deaths on October 7^th were Israeli military personnel gives more credence to Hamas’s sense of proportionality than Israel’s.

Fagans essential moral calculus is that Palestinians deserve to die because they are Palestinian. To racists, international humanitarian law is only applicable in conflicts between ‘civilised’ nations, not against barbaric natives. To the colonizer some form of exceptionalism is always invoked to unfetter them from international humanitarian law.

To quote Avi Shlaim, Emeritus Professor of History at Oxford, “The Palestinian people are the only people living under military occupation who are expected to ensure the security of their occupier”.

Teaching evidence to a law professor

It is trite that any assertion must be supported by evidence, which is independent, unbiased, reliable, verifiable, corroborated, and not based on conjecture or propaganda. The preponderance of evidence, or a large body of evidence would be sufficient absent a smoking gun, as war crime tribunals the world over have determined.

Evaluating evidence is another instance where Fagan’s slip begins to drop a little lower. ‘Evidence’ of atrocities committed by Hamas are accepted at face value; Israel’s atrocities (if he even accepts them as such) are excusable or must by ‘subjected to thorough investigation’. Violence against Palestinians is excusable because they deserve their lot as ‘girls in miniskirts have coming to them’; or to sweat the analogy, as ‘women must own their subservience and violence against them’.

Fagan assumes the role of advocate, judge, jury and executioner for Israel and the Israeli Defence Force. He has a prori determined, based purely on his personal prejudice, whose evidence is admissible, even if the basis for his judgement is debunked evidence or unproven allegations.  Fagan is a stark reminder of the trials of Palestinians in the West Bank – where the military courts have a conviction rate of over 99%, because they only consider evidence, most often secret, from the IDF.

“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.”

“The IDF denies that it has performed any acts in Gaza satisfying either of these conditions.”

While I admit that the time to evaluate such evidence was in my favour, but for a law professor to jump to conclusions as he did without a full body of evidence speaks volumes about his integrity, professionalism, judgement, or temperament.

There’s always a way to balance evidence aside from IDF or Hamas statements. Volumes of evidence from international agencies, such as the UN, WHO, MSF, from brave journalists on the ground in Gaza facing huge risks, activists and ordinary people recording events should be considered. There’s video footage, then there’s verification by international news agencies based on publicly available sources.  Al Jazeera is probably the only major news outlet with reporters on the ground, with many of its journalists murdered.  

That is too much of an effort for Fagan, who is a single witness judge – a true believer in the IDF; even at the risk of ignoring the overwhelming body of alternate evidence. That is expected when you imbue the IDF in virtue, and Palestinians only in vice. Of course, the colonial population is untrustworthy!

Since Fagan is a such a believer in the Israeli narrative and utterings, he could have considered the expressed genocidal intent (also here) of Israeli political and military leadership who declared their broader objective is to ethnically cleanse Palestinians from Gaza (see Jewish Currents).  Of course, even absent stated intent, the intent is evident in Israel’s actions.

Fagan’s pre-judgement about war-crimes is imbued with logic that would make an apartheid era judge blush. One small fact should have made him circumspect: a third of of all victims of the 7 October attack were military personnel; and over 85% of Gazans murdered are civilians.

“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.”

“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.”

Whilst Israeli undoubtedly has engaged in war crimes and crimes against humanity, it is worth reflecting on article 2 of the Genocide Convention and SA application to the ICJ to get a clear view of its genocide.

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

(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.

And then Fagan arrive at the perhaps not unsurprising conclusion, as the world knows Israel will never permit an independent investigation into war crimes (Hamas by the way has agreed to it).

“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.”

Let me say this before I move on; after the bombings of the Baptist Hospital and the al-Shifa Hospital, there were calls for an immediate, independent, international investigation into allegations that these sites were used for military purposes or whether the Baptist Hospital was bombed by a misfired missile. Hamas agreed to an immediate investigation; Israel declined.  That every hospital in Gaza including childrens’ hospitals and the oncology hospital is destroyed makes it implausible that they are all, if any ever were, Hamas control centres. It is more likely explained by the stated Israeli objective to attack power targets and make civilian life impossible, including denying healthcare, food, water, and fuel. If Gaza becomes uninhabitable the population will be forced to leave. A second Nakbah is Israel’s aim  (see Caitlan Johnstone on how to commit a genocide). That the Baptist Hospital was forewarned to evacuate, that Israeli initially claimed responsibility, that video evidence Israel presented fails to corroborate its story, makes it more likely that Israel bombed this hospital, as it did others.

A point on evidence:

In its war on Gaza Israel has deliberately prevented foreign journalists from entering Gaza; it targeted and murdered over 107 journalists (10% of all journalists in Gaza), and destroyed 163 media offices. Israel censors its media to ensure the IDF narrative prevails; and the only foreign journalists Israel permitted into Gaza are those embedded within their military (I have written about Gaza and the War of the Narrative).

Pulitzer Prize winning journalist and former New York Times Middle East Bureau chief, Chris Hedges, wo has worked in Israel and Palestine for decades, has greater insight:  Israel was founded on lies, it is sustained by lies; it tells small lies, big lies, huge lies, jaw-dropping lies. These lies come instinctively and reflexively from the Israeli military, politicians, and media, and then amplified by its massive propaganda machinery.

When countered with incontrovertible evidence, Israeli offers an inquiry, which inevitably exonerates their soldiers’ years down the road. On the rate occasion if it does find a solider guilty, then there is a symbolic punishment. The world moves on, the story is lost, as evidenced by murder of CNN journalist Shireen Abu Akleh. The attacks on Gazan hospitals is another case in point (BBC; Guardian).

As an example, on the 16th of December a heinous Israeli attack was carried out at the Holy Family Church and the Convent of the Missionaries of Charity (“Mother Teresa Sisters”), who care for the disabled in Gaza. Nahida, a Palestinian Christian woman was shot and killed by an Israeli sniper as she fetched water. When her daughter Samar ran to assist her, she too was murdered. Several other people were injured trying to reach the two women. Earlier that day, the convent was shelled with mortars with no warning at all, destroying solar panels and water storage facilities. Church leaders were outraged, with the Pope calling it ‘terrorism’.  Kay Burley of Sky News, put it to the Archbishop of Westminster, Cardinal Nicols, that the IDF has denied killing these women. He responded: “the people of Gaza and the Cardinal Archbishop of Jerusalem aren’t going to tell lies”. She prompted him further: “so you don’t believe the IDF?”; his reply was unequivocal, ‘NO’. The IDF then spun the bizarre story that these women were on watch duty for Hamas!

But Fagan is a true believer. Even in jaw-dropping lies.

Fagan’s linguistic trickery

Fagan’s bigotry becomes even more stark in the language he employs, aside from contorted statements such as:

“There is also little doubt that, if (as has been alleged) Hamas has embedded its military personnel ….”

Ben Ehrenreich reminds us that language and narrative is important because Israeli propaganda against Palestinians serves a role, particularly when amplified by propagandists like Fagan:

Israeli propaganda can afford to be preposterous because racist dehumanization has already done the real work for them. If you accept that Palestinians are irrational and violent (“human animals”) and that Hamas is uniquely barbaric then even the flimsiest lies will do.

A missile launched against them becomes a missile that they launched, a hospital becomes a terror ward, an ambulance could only be a transporter of terrorists, a basement room clearly used as a shelter from bombs could only have held hostages because only Israelis can be victims.

Then there’s the hubris of power.  When a fellow student at Havard, who was part of George Bush’s brains trust in the disastrous Iraqi invasion, was challenged by Ahmed Moor on Hans Blix’s evidence that Iraq had no weapons of mass destruction, in seven word he explained the self-serving pontification of power, and its insulation from accountability: “we believed what we wanted to believe”.

These two principles inform Israel’s propaganda, but acted out with hubris:  do something illegal, be so blatant about it, trusting that your power gives you immunity, that somehow committing the criminal act manages to normalize it simultaneously. You can be sure there will be those willing to justify it.

Fagan’s linguistic trickery is a stark illustration of both his dehumanization of Palestinians, the hubris of power, and illustrative of Judith Butler’s notion of ‘grievability’.  Israeli victims are humanized, using stark adjectives and continuous repetition of phrases throughout his article. Israelis were subjected to brutality such as ‘beheading’, ‘torture,’ immolation, ‘mutilation’, ‘genital mutilation’, and ‘rape’. He continues, ‘some of the victims of October 7 were infants. Others were small children, teenagers, or young adults’.

Palestinians are well, just Palestinians. The only moral currency he could muster for them was: ‘Of course, the fact that innocent civilians have been, and are being, killed in Gaza is a tragedy’. Israeli’s are murdered, Palestinian die. Israelis are human, Palestinians are some amorphous mass of people.  This racist typography is not confined to Fagan but replicated in headlines around the western world.

If this narrative is to be believed, Palestinians die peacefully in their sleep or through some ‘surgical strike’. Perhaps sanitizing their deaths makes Fagan more comfortable supporting their genocide. The fact is that Palestinian bodies are mutilated, fangled and mangled, body parts strewn over a wide area, babies buried or burnt alive, decapitated, and immolated, children’s limbs missing, fathers collecting dispersed parts of their children’s bodies in shopping bags, women in advanced pregnancy murdered with their unborn babies, or the disabled and elderly buried under rubble suffocating to death because they were unable to evacuate. Parents writing the names of their children on their bodies so that they could be identified in death and not buried anonymously. Palestinians in describing search and rescue from bombed building refer not to piled up bodies, but ‘piles of body parts’. Health workers in Gaza have coined a new triage acronym WCNSF – ‘wounded child, no surviving family’. Or Israeli kills them through starvation, thirst, cold, or disease.  

More Gazan’s are expected to die of disease than the war, as nearly 50% are currently starving . (https://jewishcurrents.org/epidemiological-war-on-gaza).

1000 children had their limbs amputated without anesthesia; vinegar used for lack anti-septic.

These don’t matter as much to Fagan. To him they are collateral damage, intended or unintended consequences, resulting from bombs unleased by Israel on Gaza greater than the bombing of Dresden, Hiroshima, and Nagasaki (in a much smaller area), with munitions prohibited for use in civilian areas.

Aldous Huxley reminds us that ‘the purpose of propaganda is to make one set of people forget that other sets of people are human’.

What really happened on the 7^th October

It is worthwhile briefly recounting the events of the 7^th October though independent sources, one of which is The Cradle, which has produced a useful reconstruction of events.

Fighters of Hamas and Palestinian Islamic Jihad (PIJ) entered Israel by air (paragliders), via sea, and by breaching the fence separating Gaza from Israel using bulldozers. There may have been tunnels. Following the breaching of the fence, many other resistance fighters and other Gazans entered Israeli and joined the melee in the ensuing chaos.

These attacks were captured on bodycams by Palestinian resistance fighters with other video evidence captured on Israeli security cameras, and those located within settlements. Zackary Foster, a Princeton PhD on Palestinian history has an interesting and illuminating thread on Hamas.

Hamas claims that its objective was to target military installations and hostages to exchange for political prisoners held in Israeli jails, including children, women, many held without charge, and high-ranking members.

Military installations were attacked as well as civilian homesteads in settlements. Military personnel and civilians were killed in the attack and over 240 taken hostage, including women, babies, children, and the elderly. Hostages belonged to 40 nationalities (including dual Israeli citizens), including 20 Thai farm workers, and Palestinian citizens of Israel. The ratio of military to civilian hostages is unknown, but it seems that the majority still in captivity are military personnel.

The Israeli military took hours to respond and when they did, they engaged in massive attacks on spaces that housed both Palestinian fighters and hostages/civilians. They attacked Israeli homesteads with civilians inside (see here; and here, and here, and here). In the chaotic and undisciplined rush to the Gaza envelope, many Israelis together with fighters were killed, and their houses destroyed with heavy artillery used by the IDF? (see Prof Mearsheimer) (see here).

According to Israeli data (15^th December), the final death toll from the October 7th attack by Palestinian militants is 695 Israeli civilians, 373 Israeli security forces and 71 foreigners, for a total of 1,139 (Israel initially claimed over 1400 and then downgraded that to 1200). Between 200 – 400 Palestinian Resistance fighters were killed. The data of Israeli deaths “does not distinguish between those killed by Hamas and civilians killed by Israeli forces in the fighting to retake control of southern Israel, an operation in which the army used shells and rockets on inhabited areas, according to testimonies collected by AFP and Israeli media.”

Evidence suggests that Israel employed the Hannibal Protocol to target resistance fighters, with little consideration of Israeli lives, which is corroborated by Israeli civilians who were caught in these spaces.     The number of Israeli’s killed by the IDF is unknown, but an estimate is possible. The IDF has claimed that 20% of its soldiers in Gaza were killed by friendly fire. If we reasonably use that estimate, considering the massive attacks by the IDF on the resistance fighters (some holding hostages) this could be anything from 100 – 200 Israelis killed by the IDF (see here). This could easily be determined by post-mortem identification of munitions causing the death of Israelis.

Israeli propaganda begins

The Israeli propaganda war began immediately after the event triggering international sympathy and creating the basis for a massive attack on Gaza. The first stories which emerged were of 40 beheaded babies, then babies hung on clothes lines, and babies baked in ovens, and then beheadings of adults. All these were based on single sources or the IDF and were debunked, but only after the news gained traction from constant repetition and amplification. On the other hand, the body count in Gaza was discounted as inaccurate (later found to be remarkably accurate); and Israel egregiously claiming that pictures of dead babies in Gaza were of dolls imported from China.

Interrogating Fagan’s ‘evidence’

Fagan claims ‘beheading’, ‘torture,’ immolation’, ‘mutilation’, ‘genital mutilation’, and ‘rape’; and that ‘some of the victims of October 7 were infants.

All of this is disputed, debunked or unconfirmed.

·         Let’s be clear, there were no beheaded babies. That was a lie.

·         There were no babies in ovens. It was a lie.

·         There were no babies hung on clothes lines. It was a lie.

·         Let me add that there is no evidence of any beheadings of adults either.

·         There is no evidence of immolation of Israelis by Palestinian resistance fighter – by immolation is meant the deliberate burning of a live human. This is different from somebody being burnt in a military attack.

·         There is evidence from video evidence of disrespect displayed to bodies of deceased IDF soldiers by some fighters, but no evidence of mutilation (whatever that means).

·         Human Rights Watch has analyzed videos and confirmed the deliberate killing of civilians by Palestinian fighters.

The Israeli newspaper Haaretz (4^th December 2023) did an analysis of some of this fake news. Here are 10 examples of their analysis of fake news, most originating from the IDF, the office of Prime Minister, or civil agencies (quotes directly from source).

1.        According to a reporter for i24News, an army commander told her that at least 40 babies had been killed, some of them beheaded.

The channel said: “Reports of the atrocities and the estimated numbers are based on testimonies by officers who removed bodies from Gaza border communities.” It said these accounts were collected during the IDF Spokesperson’s Unit’s tour for foreign correspondents four days into the war.

The station added: “Similar reports were repeated in testimonies by Zaka personnel. [an ultra-Orthodox Jewish burial organisation.]

All these stories coming from the IDF, i24News and Zaka were found to be false.

2.        The same Zaka member also repeatedly spoke about the body of a pregnant woman found at Kibbutz Be’eri whose abdomen had been cut open.

He repeated his account to Haaretz, adding that he saw this woman at House 426 on the kibbutz. “It was full of blood,” he said. “When we turned her over, we saw that the abdomen was open. A knife was next to her, and we saw the fetus attached by the umbilical cord, and she had been shot from behind.”

Zaka said: “The volunteers are not pathology experts and do not have the professional tools to identify a murdered person and his age, or declare how he was murdered, except for eyewitness testimony.”

As for the pregnant woman, Zaka said that due to the condition of the bodies when they were found, the volunteers might have misinterpreted what they saw.

This report was found to be fake.

3.        The report above was later quoted on social media, often referenced as “dozens of beheaded babies,” though sometimes it was “burnt babies” or “hanged babies.” For example, the Foreign Ministry published an account by Col. Golan Vach from the Home Front Command, who said that in one house he found the bodies of eight burnt babies.

The X account of the Prime Minister’s Office also referred to the murder of infants and showed very graphic pictures. According to the tweet, Prime Minister Benjamin Netanyahu showed the pictures to U.S. Secretary of State Antony Blinken.

Last week Ishay Coen, a journalist for the ultra-Orthodox website Kikar Hashabbat, interviewed Lt. Col. Yaron Buskila of the Israel Defense Forces’s Gaza Division. Buskila talked about babies who had been hung on clotheslines; his remarks were cited by a host of Twitter personalities around the world.

The IDF Spokesperson’s Unit does not deny that Lt. Col. Buskila’s remarks about babies strung up on clotheslines do not jibe with reality.

Coen wrote that he was later informed that the story was inaccurate and deleted the post. “Why would an army officer invent such a horrifying story? I was wrong,” he added.

4.        According to sources including Israel’s National Insurance Institute, kibbutz leaders and the police, on October 7 only one baby was murdered. She was 10-month-old Mila Cohen, who was killed with her father Ohad in Kibbutz Be’eri.

Only one infant was murdered.

5.        According to the National Insurance Institute, 7 children between the ages of 2-8 were killed. Most were in the company of their parents.

In total 7 children were murdered.

6.        There is no evidence that children from several families were murdered together, rendering inaccurate Netanyahu’s remark to U.S. President Joe Biden that Hamas terrorists “took dozens of children, tied them up, burned them and executed them.”

Benjamin Netanyahu lied.

7.        In another story that spread a few weeks ago, United Hatzalah President Eli Beer told of a baby that was placed in an oven and burned to death. Beer made the remarks at a donors conference in the United States. The British newspaper The Daily Mail changed it from “baby” to “babies.”

Eli Beer and the Daily Mail lied

8.        Another doubtful claim was made by the prime minister’s wife, Sara Netanyahu, in a letter to U.S. First Lady Jill Biden. Sara Netanyahu wrote that one of the women was in her ninth month of pregnancy when she was abducted into Gaza, where she gave birth. People on social media published a photo of the hostage, Nutthawaree Munkan, a Thai citizen.

In a magazine interview, her friends, employer, and families denied that she was pregnant. Munkan was released over a week ago; she was not pregnant and had not given birth. The army currently has no information about an abducted pregnant woman, and defense officials consider the story an unsubstantiated rumor. The Prime Minister’s Office did not respond.

Sarah Netanyahu lied

9.        As for Col. Vach’s remarks on the bodies of eight burned babies, the IDF Spokesperson’s Unit said he “described difficult sights that he saw during his various missions evacuating bodies at the start of the war. The review was conducted in English, and the officer used the word 'babies' to describe a number of children’s bodies that were found. The error was made in good faith and does not mitigate the severity of the atrocities committed."

Lie

10.     Some of the incorrect descriptions were made by Zaka personnel; one repeatedly talked about 20 bound and burned bodies of children at a kibbutz.

He told Haaretz that these were boys and girls between 10 and 15 found behind Kibbutz Kfar Azza's dining hall. Elsewhere, he said he saw 20 children from Kibbutz Be'eri laid next to each other and burned to death with their hands bound.

Lie. This description does not conform to the list of the dead.

Let me be clear: the targeting of civilians by state and non-state actors is proscribed in international law, and a war crime, regardless of the perpetrator. It is condemned without reservation. But cited evidence, when false, speaks to credibility, and Fagan seems to have lost most of his. He, better than most, should know better than rely on single sources, or have resolute trust in IDF propaganda. Fagan is a stark reminder of the conduct of apartheid judges, or the Israeli military courts in the Occupied Territories, with a greater than 99% conviction rate based solely on evidence of the IDF.

UN Human Rights Commission has noted the allegations and have promised an investigation. Such an independent, international expert investigation is essential to shed facts from propaganda, and must be supported.

Claims of mass sexual violence, rapes, genital mutilation

On the claims of mass sexual violence, mass rapes, genital mutilation, let me say this. Gender based violence in any context is abhorrent – by anybody, towards anybody. As a weapon of war, it constitutes a war crime. As a weapon of torture, it is criminal. Violation of reproductive rights are equally egregious.

To deny these acts in the face of incontrovertible evidence is to support such acts; to demand solid evidence may raise accusations of insensitivity; and to accept it without question is to give in to Israeli propaganda which has spread ‘jaw-dropping lies’, making any of their official claims hardly believable, as the sources are the same as those debunked above. This speaks to the credibility of ‘witnesses’.

It is difficult to prove a negative, but those who assert must prove, which to date has not occurred.

My view is based on my extensive readings and analysis to date. I have an enduring fidelity to facts and open to be convinced otherwise. I am also entirely sensitive to the difficulty of obtaining evidence on sexual violence, without subjecting the victim to multiple traumas. But it is that very fact that also makes it a useful propaganda tool.

As the story unfolded the IDF denied any allegations of sexual violence or rape (source). Like all others, this story was planted by an Israeli propagandist, Aviva Klompas, and then, like the 40 beheaded babies, took a life of its own through Netanyahu and Biden. The story grew from rape, to rapes, to mass rape, to mass sexual assaults, to women paraded like trophies. Some articles spoke to hundreds of rapes.

The rape stories emerged, as the story of the ‘jaw-dropping lies’ of forty decapitated babies became a mockery of Israeli propaganda, which become embedded in popular commentary and news narratives. More recently the New York Times (28 December) promoted this story of rape. This story was debunked by the family of the murdered Gal Abdush, who was the major protagonist in the Times story. Her family denied allegations of rape, and further accused the paper of interviewing them under false pretenses.

On 5th January, Haaretz reported that Israel police are having difficulty finding victims of, or witnesses to, alleged sexual assault committed on October 7. Considering the alleged scale of such crimes, the lack of witnesses is concerning, and cast further doubt on the narrative of a mass crime, or sexual violence being used as a weapon of war. Unless all those subjected to sexual violence were killed and forensic evidence is all that may be available.

These rape stories are analysed, interrogated and elements debunked by various commentators (Electronic Intifada, SpeakUp, Anthony Collins, The GrayZone, Muhammad Shehadah).

The only trusted and respected source who repeated these claims is Physician for Human Rights – Israel. Having read its statement, it was startling for its lack of verifiable evidence for the claims it makes (video, testimony, forensics, corroborating testimony, etc).

The fantastical charges made by Israel, and its consistent lies, demands that any allegation be subjected to, and tested through an independent, unbiased, international investigation by experts.

Here are some questions,

If these acts of sexual violence were so widespread, why would it be missed initially, why would the IDF deny these claims, as they were first on the scene?  Why have police failed to attract witnesses? Of course, it is possible that these claims may arise later as individuals overcome their initial trauma. Or it is possible that there were isolated cases. Or none at all?

What of video or forensic evidence?

But two factors place further doubts on these claims: the first is that the initial attack by resistance fighters would have expected a swift Israeli response, which makes it seem rather odd that fighters would engage in acts that would place them at risk, and delay what was a disciplined operation by Hamas and PIJ.

The second is that none of the female hostages, who have publicly spoken, have made claims of sexual assault during captivity, when they were open to such abuse by their captors. Why would (alleged) rape be perpetrated in the theatre of war, but not under more controlled conditions?  Israel has silenced captives speaking to the media, for reasons best known to them. While being a hostage must be a most traumatic ordeal, some have spoken about hardships, some of abuse, and many of how well they were treated under the circumstances.

There is a suggestion that as the borders were opened, all kinds of elements flooded into Israel, and there may have been a lack of discipline by these actors. But no evidence is available to support that either.

Sexual violence against Palestinians

Fagan’s tribal predilections blinds him to violence against other people or women. Brown womens’ bodies either don’t matter, or women’s bodies can be weaponized only against the colonized predator. The war on Palestinian women doesn’t enter his moral conscience.

It doesn’t matter to him the cases of children, women and men held in Israeli prisons or held captive subject to humiliation, torture, sexual violence, wanton brutality (see here, 972mag, savethechildren). Palestinian families have accused Israel of desecrating the bodies of Palestinians who were killed, and strong evidence has emerged of illegal organ harvesting from dead Palestinians. Israel is also holding the bodies of hundreds of dead Palestinians for years, for inexplicable reasons.

Thus, the international investigation should investigate the abuse of children, women and men in Israeli prisons, including sexual violence (see here; and here; and here), and the systemic sexual and gender violence against Palestinian women. This includes deprivation of reproductive health, where due to deliberate delays at check-points Palestinian women are often forced to give birth on the roadside. The lack of health services to 50 000 pregnant women in Gaza, due to Israel’s destruction of hospitals and clinics is a crime against humanity, as is deprivation of nutrition and water for the healthy growth of their unborn child. The countless pregnant women murdered is a further crime.

The IDF's chief rabbi must be investigated for supporting rape of Palestinian women in a war.

Lest I be charged of trivializing sexual violence, it is categorically denied.

Conclusion:

Gaza is a modern case of a genocide. It is a rare case where a regime gives notice of executing an impending genocide (see Katie Halper) or a Nakba. The genocidal intent by a mass of Israeli leadership is captured here in this statement of scholars, in the Guardian and in this database.

Israel then executes this genocide in real time, in full view of the publics, openly, flagrantly, deliberately, and disproportionately.

It is supported by the global north, financially, militarily, logistically, including its attempt at mass expulsion of Palestinians to the Sinai and other countries.

And then you have the Fagan’s of this world writing editorials morally justifying this genocide.

This is not only incomprehensible, but unprecedented in a war that has claimed the lives of 9000 children, more than all wars in the last year combined. For a sense of perspective, 500 children were killed in Ukraine over the entire period of the war. With half of Gaza’s population consisting of children this was predictable and obviously acceptable to its architects and defenders.

Israel intends destroying Gaza’s civilizational achievements. The targeting of the Shifa and other hospitals, the murder of intellectuals and doctors, journalists, writers and poets, is not accidental. Within the context of an open-air prison, a concentration camp, the Shifa Hospital, and Gaza’s universities were centres of excellence. The poets and intellectuals were creative and brilliant.  The bombing of historical churches and mosques is part of this destruction. This is not about Hamas, it is about the genocide of a culture, a civilization, a people.

Israel’s actions always test the threshold of acceptability – always probing what it can get away with. If bombing hospitals is acceptable, murdering 9000 children is justifiable, then a genocidal ethnic cleansing of Gaza is a small step away.

Why are we surprised? What we are currently seeing in Gaza is an exponential replication of previous Gaza attacks, document in the Goldstone and other reports. (https://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/a-hrc-12-48.pdf)

Any reasonable person should be calling for an immediate ceasefire, an acknowledgement and just settlement to the Palestinian tragedy, and an immediate international investigation into war crimes and prosecution of all those deemed complicit. To be sure, every civilian death must be condemned, mourned, and prevented.  The death of every Palestinian fighter who has no other route to his or her freedom must be mourned. We must provide options to prevent further deaths of Palestinians and Israelis.

Hannah Arendt when speaking about the banality of evil during her coverage of the Eichmann trial, opined, don’t look for the devil, he may not exist. In this case they are visible. When Netanyahu, Gallant, Ben Gvir and Smotrich stand in the dock in the Hague with a compelling charge sheet, alongside them must stand the banal, those who enabled this genocide, who cheered it, who justified it.

Coda

While this long piece attempt to address at least some of the arguments proffered by Professor Fagan, I don’t address all of them (there’s too many). On the other hand, it addresses issues he may not have raised directly, but forms part of the narrative ecosystem of such propaganda. In my responses I have attempted to cut through the loops of his argument (which is a trick for plausible deniability), his legal jargon, and statements followed by defensive qualifications (another trick). I worked through a literal reading and deconstructing his article, which exposes ideology both at the centre and margins of his discourse.  Many of the ideas are culled from others, some embedded in the article as references, others not. Let me end by saying that I will be accused of an ad hominem response, minor error of facts, strawman arguments, or even grammatical errors. I may even be accused of double-standards, doing exactly what I accuse Fagan of. I welcome responses to the broader narrative in the article, and specific errors of fact. If you wish to address a small part of my argument and ignore the rest, then it elides the big picture to score points, for which I have little toleration. I have a fidelity to facts and evidence, and if any such credible evidence contradicts any of my positions, I will change my mind. I hope Fagan will too.

Shuaib Manjra

9 January 2023

(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).