Answer to Professor Alan Dershowitz, in defence of Judge Dennis Davis

In responding to our critique of his record on Israel (Cape Times, 25 March), Professor Alan Dershowitz has chosen to single out Judge Dennis Davis. He says that Davis, whose name appeared first, is the "presumed author". This tactical diversion makes little sense: we all signed a collaborative article, and we stand by it completely.

We chose to speak out against Dershowitz because he was brought to South Africa to pursue the furious attacks for which he is known internationally - attacks on all those who want effective peaceful measures against Israel to compel the ending of its military occupation of the West Bank and the removal of annexationist settlements.

Dershowitz's defence was to call the article, which was based on his own published statements, a "pack of lies" and to allege that Davis had "deliberately distorted" his views. He has now written a factually incorrect attack on Davis in the New York press, and has indicated in the Cape Times that he plans to file a complaint against the Judge "for abusing his judicial authority".

In Cape Town's Gardens Synagogue on 29 March Dershowitz went further, saying, according to a member of the audience who took notes:

"Shame on Dennis Davis. Davis should go back to law school. I hereby officially and formally accuse Judge Davis of lying, defamation and plagiarism. I would be scared if I went to court and Davis was my judge. You aren't going to receive any kind of justice from him."

Dennis Davis in fact has a long record of support for justice and human rights. He is also a long-serving member of Cape Town's Jewish community, in its synagogues, communal institutions, and previously as Chairperson of its Board of Deputies. He is well known for his facilitation of discussions and debates within the Jewish community, and in South African society at large.

The accusations levelled against Davis, which are in fact against all of us, are groundless.

When one is criticised by a group of people, as Dershowitz has been, and has no answer in substance, there is a logic in dismissing the group and trying to portray the criticism as the project of one angry person. That way, the question of why a diverse group of people would have all arrived at the same conclusion may be avoided.

All that then needs to be done is to demonise this one person. This is the approach Dershowitz has attempted in regard to Archbishop Desmond Tutu and former US President Jimmy Carter, amongst others. This approach attempts to negate the fact that such people represent a considered viewpoint with widespread support, in order rather to depict them as individual menaces.

Complaining of our article against his record, Dershowitz now alleges in New York that Davis "pressured" UCT into withdrawing an invitation to him to speak on campus. This is puzzling to say the least, since our article appeared after Dershowitz's UCT appearances had been cancelled.

UCT, its faculties and academics, make choices every day about who is a suitable educator, and who is not. That is a crucial part of academic freedom. We chose to welcome in a reasoned manner one such apparent choice, on the basis that although academia is and must be free to provide a platform to an advocate for legalising torture and a defender of illegal annexations, it is never under an obligation to do so. Such engagement on our part is certainly no threat to academic freedom or to vigorous public controversy.

Dershowitz has thus far offered only evasive answers to the substance of our criticisms.

Denying that he is an apologist for torture, he says that he is "opposed to torture as a normative measure". In the Cape Times (1 April) he claims that he is merely making an "empirical prediction" that torture would in fact be used in the case of an imminent mass-casualty terrorist threat. Any other presentation of his views, he says, is a deliberate distortion.

But in his article "Tortured Reasoning" he expressly proposes to make torture "conditionally normative". He regrets that the Supreme Court of Israel has itself rejected any pre-authorisation of torture. He is dissatisfied with the position that a torturer would, when acting in the "ticking bomb" situation, have to rely afterwards on the well-established criminal defence of necessity.

While acknowledging that torture is systematically used without justification, and that the torturers engage in "systematic lying ... under oath", he proposes that they should be allowed to proceed on obtaining a judicial "torture warrant". And he admits that "any warrant procedure" would legitimise the practice of torture.

As with the abolition of the death penalty, and as with the abolition of slavery, we must stand firm against any restoration of the institution of torture. Torture was first abolished in England after the Revolution of 1640. Like slavery, it has reduced enormously, and work goes on to stamp it out completely. Someone who lacks commitment to this fight, and who proposes instead to actually legitimise torture by making it legal subject to a warrant, is certainly an apologist for torture.

While denying that he supports collective punishment of Palestinians, Dershowitz confirms that it is his view that "people who explicitly support terrorism should be held collectively accountable for the actions they incite or facilitate".

In fact, he has gone further, arguing that all residents of a village from which a terrorist originates should collectively suffer the destruction of that village, and that all Palestinians should collectively suffer the annexation of Palestinian lands in reprisal for terrorist attacks. We quoted his own statements in our original article. He has been unable to repudiate or deny them.

Dershowitz makes the point that "terrorism is one of the most immoral forms of collective punishment". In this we agree entirely, but it can't justify collective punishment in return.

Dershowitz does not deny calling Arbishop Tutu a bigot and an anti-Semite, and saying that this "unrepentant sinner" should be "in the dustbin of history". But he now claims that it "is simply not true" that he ever supported the petition to remove Tutu as patron of the Holocaust Centres.

However, in the same article in which he attacked Tutu, he described the petition as "carefully documented" and lauds its authors - David Hersch, Joselle Reuben and Howard Joffe - as "prominent South Africans". Dershowitz further offers, in justification for the petition, that Tutu "uses his status with these fine institutions as legitimization for his anti-Jewish rhetoric." As we read them, those words clearly indicated support for the anti-Tutu petition.

Critically, Dershowitz has not demonstrated unequivocal support for an end to Israel's military occupation of the West Bank. That he supports removing only those settlements "in the heart of the West Bank" and leaving a "military presence"; that he maintains that Israel's settlement policy in the West Bank is not illegal and that some of the West Bank "rightfully belongs to Israel"; and that he arrived at a protest against a settlement-sponsoring mining-magnate in order to conspicuously go into the magnate's shop and purchase jewellery - all indicate that his oft-repeated support for a two-state solution does not stand the test of reality.

Our original letter, with every Dershowitz quote fully referenced to the original source upon which we relied, is now available (see here).

Signed: Gilbert Marcus SC, Geoff Budlender SC, Wim Trengove SC, Rob Petersen SC, Prof John Comaroff, Prof Jean Comaroff, Fatima Hassan, Doron Isaacs, Mark Heywood, Jonathan Berger, Shuaib Manjra, Nathan Geffen, Adila Hassim, Pregs Govender, Daniel Mackintosh, Michael Mbikiwa

This article first appeared in the Cape Times, April 14 2011

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