Dear UCT Council Members

On Friday 19 April, UCT Senate adopted two resolutions concerning the war in Gaza. The first, which proclaims itself to be concerned with ‘the destruction of scholarship and education in Gaza’, is an amended version of a motion proposed by Professor Leslie London and Associate Professor Fatima Seedat. It comprises seven sub-resolutions. Among them are the following two:

‘[to] condemn the destruction of the education sector in Gaza and the massive scale of killing of teachers and university staff in the current war’

‘[to] express support for academic colleagues in Gaza who are surviving under appalling conditions’

The second resolution, which is an amended version of a motion proposed by Professor Lydia Cairncross and Associate Professor Ruchi Chaturvedi, is as follows:

‘[N]o UCT academic may enter into relations, or continue relations with, [sic] any research group and/or network whose author affiliations are with the Israeli [sic] Defence Force [sic], and/or the broader Israeli military establishment.’

These two Senate resolutions – henceforward called the ‘London resolution’ and the ‘Cairncross resolution’ – will be put to UCT Council, for its consideration, at its next meeting. For the following six reasons, I urge Council to reject them both.

1. The Justification for the Resolutions Rests on a False Premise

The written justification for the London resolution relied on the claim that the International Court of Justice (ICJ) had found ‘that it was plausible that Israel was committing genocide in its attacks on Palestinians in Gaza’. The written justification for the Cairncross resolution relied on the same claim, even though it expressed it by saying that the ICJ had found that there was ‘a prima facie case of genocide against Israel’. This claim was repeated several times during the discussion of the two resolutions in Senate on 19 April.

But the claim is false. The ICJ did not find it plausible that Israel was committing genocide in Gaza. Instead, the ICJ made the following two findings:

(a)    ‘[S]ome of the rights claimed by South Africa and for which it is seeking protection are plausible.’

(b)   ‘[T]here is a real and imminent risk that irreparable prejudice will be caused to [these] rights’.

Many people took the combination of these two findings to imply the further finding (nowhere expressed by the ICJ) that it is plausible that Israel was committing genocide in Gaza. But this is a non sequitur. A month before the Senate meeting of 19 April, I explained why in an email exchange with a colleague who, during a previous Senate meeting, had surprised me by endorsing the claim that the ICJ had found that Israel was committing a ‘plausible genocide’. Here is that explanation:

‘[Y]ou (like many others, I think) seem to assume that it follows from (a) the fact that B has a plausible right that A not do x and (b) the fact that there is a real and imminent risk that irreparable prejudice will be caused to this right that (c) it is plausible that A is already violating this right or causing irreparable prejudice to it (by doing x).’

‘However, to assume this is to assume that it follows from (1) the fact that there is a real and imminent risk that y will occur that (2) it is plausible that y is already occurring or has already occurred – i.e., it is plausible that the risk that y will occur has already materialised. But this assumption is clearly mistaken. (After all, we cannot infer, from the fact that my speeding poses a risk of injuring a pedestrian, that it is plausible that I have injured or am injuring a pedestrian.)’

My colleague was unpersuaded by this argument. International law is her field of research not mine. I decided, therefore, not to make this argument during the Senate meeting of 19 April. The reason for my reticence was not that I thought the argument invalid. It was that I was certain that, whatever the merit of the argument, Senate would adopt my colleague’s view about what the ICJ had found rather than my view, given her greater knowledge of international law.

Fortunately, the question whether the ICJ did or did not find it plausible that Israel was committing genocide in Gaza has now been settled. Regrettably, it was settled only after the Senate meeting of 19 April. In a HARDtalk interview on 26 April, Joan Donoghue, who was President of the ICJ when it handed down its judgment in the case of South Africa v Israel, said the following:

‘The Court’s test for deciding whether to impose provisional measures uses the idea of plausibility. But the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa.’

‘So, the Court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court. It then looked at the facts as well.’

‘But it did not decide – and this is where I am correcting what is often said in the media – it didn’t decide that the claim of genocide was plausible.’

‘The shorthand that often appears, which is that there is a plausible case of genocide, isn’t what the Court decided.’

This leaves no room for doubt: the ICJ never found, either expressly or by implication, that it was plausible that Israel was committing genocide in Gaza. Yet the claim that the ICJ did find this was an essential premise in both the justification offered for the London resolution and the justification offered for the Cairncross resolution. It is safe to assume that the belief that the ICJ found what it did not in fact find also motivated many members of Senate to vote for, rather than against, the two resolutions.

That Professors London and Cairncross and Associate Professors Seedat and Chaturvedi should have erred in the way they did, is understandable, given that the interpretation of court judgments falls outside their areas of expertise. The same holds for most members of Senate. However, now that Judge Donoghue has clearly spelled out what the ICJ did and did not decide, there can be no excuse for Council to repeat Senate’s mistake.

This means that, when Council considers the London and Cairncross resolutions at its next meeting, it must bear in mind the fact that Senate was moved to adopt those two resolutions by a justification which, in so far as it relied on the false claim that the ICJ had found it plausible that Israel was committing genocide in Gaza, was invalid.

2. The Resolutions Show Indifference to the Suffering of Jewish-Israeli Victims

Six weeks before Senate’s meeting of 19 April, The Office of the Special Representative of the Secretary General on Sexual Violence in Conflict issued a report which found that there are reasonable grounds to believe:

(a) that multiple incidents of rape, including gang rape, occurred in and around the Nova festival site during the 7 October attacks,

(b) that sexual violence occurred on and around Road 232 (an escape route from the Nova festival site), and

(c) that sexual violence occurred in kibbutz Re’im, including rape.

The Report also found that there is clear and convincing information that sexual violence, including rape and sexualized torture, occurred against some women and children during their time as hostages in Gaza and that there are reasonable grounds to believe that this violence may be ongoing.

The Report further found that there is credible information that multiple victims, at the Nova festival site and elsewhere, were first raped and then killed (or, in a few cases, first killed and then raped, or killed while being raped). This information includes statements by credible sources that they had seen multiple murdered individuals, mostly women, whose bodies were found naked from the waist down, some totally naked, with gunshots in the head and/or tied.

Subsequent to Senate’s meeting of 19 April, Sheryl Sandberg released Screams before Silence. In this hour-long documentary, women and men who were taken hostage on 7 October but subsequently released, or who survived the 7 October attack, or who witnessed the immediate aftermath of the attack as first responders, provide first-hand testimony corroborating the findings in the Report.

The sexual violence of 7 October has never been acknowledged, let alone condemned, by Senate. Nor has Senate ever resolved to take any action because of it. The fact that Senate has not said anything about, nor done anything in response to, the sexual violence of 7 October is not, by itself, problematic. It is, however, problematic when combined with the fact that Senate has said something about, and has done something in response to, the subsequent violence in Gaza.

If Senate not only had said and done nothing in response to the sexual violence of 7 October but also had said and done nothing in response to the violence in Gaza, then it could not justifiably be accused of indifference towards the victims of the former. In a letter sent to Senate well before its meeting of 19 April, I set out four reasons why it ought not to adopt the London and Cairncross resolutions. Those reasons were that, by adopting these resolutions, Senate would:

(a) unlawfully violate the academic freedom of some UCT academics,

(b) exceed Senate’s statutory authority,

(c) enable some UCT academics to coerce others, and

(d) enable some UCT academics to abuse their membership of Senate.

These four reasons would apply equally to a Senate resolution condemning the sexual violence of 7 October or prohibiting collaboration with Palestinian academics who have not spoken out against it. However, none of these four reasons presupposes an indifference, on Senate’s part, either to the violence in Gaza or to the sexual violence of 7 October. On the contrary, they are reasons for Senate not to say or do anything in response to that violence, even if Senate feels very strongly that that violence is or was morally unacceptable, and that its perpetrators are or were committing egregious moral wrongs.

Of course, Senate has said and done something in response to the violence in Gaza. It has done so by adopting the London and Cairncross resolutions, And that changes everything. It means that Senate can justifiably be accused of indifference towards the victims of the sexual violence of 7 October – if and as long as it does not also say and do something in response to this violence. And it means that Senate could justifiably be asked about the reason for this indifference.

Is it because Senate believes that the victims, being mainly Israeli Jews, brought their misfortune upon themselves and are therefore less deserving of its concern? If so, how much less deserving are they? This question can be put less abstractly. How many more women needed to be raped on 7 October, or needed to have wooden boards and iron rods rammed up their vaginas, or needed to have their breasts cut off, before Senate would have considered them worthy of its concern: fifty, five hundred, a few thousand? How many more hostages needed to be taken, kept, and raped – and how often: once a week, once a day, several times a day?

To be clear, the point here is not that Senate ought to have adopted a resolution condemning the sexual violence against Israeli Jews on 7 October and expressing its support for the hostages who continue to be subjected to such violence. Nor is it that Senate ought to have adopted a resolution prohibiting relations with research groups or networks that include members of Hamas, or supporters of Hamas, or people who have not condemned Hamas’s actions on 7 October. It was right that Senate did not adopt these resolutions, for the four reasons mentioned above.

The point is a different one. Senate adopted the London and Cairncross resolutions, notwithstanding the four reasons against doing so set out above. This must mean that Senate believed either that those four reasons are invalid or that, though valid, they are outweighed by the reasons for it to adopt the London and Cairncross resolutions. The following question then arises. Why, if Senate thought those four reasons invalid or of less weight than the reasons for it to adopt the London and Cairncross resolutions, did it not adopt two similar resolutions concerning the rapes and other acts of sexual violence committed against Jewish-Israeli women on 7 October?

A possible answer is that Senate did not do so because some, maybe many, of its members place a lower value on the lives of Israeli Jews than they do on the lives of others. But I am not convinced that this is the right, or at any rate a complete, answer. To place a lower value on the lives of Israeli Jews than of others is antisemitic. Though there probably are some antisemites in Senate, they are surely too few to account for the fact that a majority of Senate did not think it problematic for it to adopt the London and Cairncross resolutions while remaining silent about the sexual violence of 7 October.

A better answer is suggested by the work of Paul Bloom, Professor Emeritus of Psychology and Cognitive Science at Yale, and Professor of Psychology at Toronto. In his book Against Empathy, Bloom explains that, for a variety of reasons, empathy is a poor moral guide. One of those reasons is that empathy is ‘influenced by the group to which the other individual belongs – whether the person you are looking at or thinking about is one of Us or one of Them.’ Bloom goes on to describe a European study which tested male soccer fans:

‘The fan would receive a shock on the back of his hand and then watch another man receive the same shock. When the other man was described as a fan of the subject’s team, the empathic neural response – the overlap in self-other pain – was strong. But when the man was described as a fan of the opposing team, it wasn’t.’

There is little doubt that many members of Senate see Israeli Jews in general, and therefore also the Jewish-Israeli victims of the sexual violence of 7 October, as ‘the Other’: as belonging to ‘Them’ rather than to ‘Us’. It may seem that to say this is to try to sneak an accusation of antisemitism in by the backdoor. But that is not the case. It may well be that the ‘othering’ of Israeli Jews by some Senate members is attributable to antisemitism. But, in the case of most Senate members, the explanation for this othering lies elsewhere.

The conflict between Israeli Jews and Palestinians is a complex one. It has a complex history. But it has been reduced to a simple morality tale, in which good confronts evil, the oppressed battle against their oppressors, and the colonised wage war against the colonisers. In this tale, Israeli Jews play the villains and Palestinians the innocent victims. Some may object (with more than a little justification) that this tale purchases simplicity at the price of veracity. But, to the role this tale plays in the othering of Israeli Jews by many Senate members, it is not its accuracy that matters, but its acceptance.

Many who were in Senate on 19 April remember their own oppression under the South African apartheid regime. Others know that they continue to be disadvantaged by that regime’s oppression of their parents. Among the members of Senate who were neither oppressed nor disadvantaged by the apartheid regime, there are some who did much to oppose it. Even those who neither were oppressed by or are disadvantaged because of the apartheid regime, nor actively opposed it, are unlikely to identify themselves as members of the group responsible for the apartheid regime’s oppression of others.

Given the fact that so many Senate members (a) accept the reductivist morality tale described above and (b) identify themselves with the victims rather than perpetrators of oppression, it is not surprising that a majority of Senate should view Israeli Jews as belonging to Them rather than to Us. Nor, given what Bloom has taught us about empathy’s workings, is it therefore surprising that a majority of Senate does not feel, indeed is incapable of feeling, empathy for the Jewish-Israeli women who were raped, tortured, and mutilated on (and, in the case of those still held hostage, since) 7 October.

To recognise the fact that Senate’s uneven treatment of the violence in Gaza and the sexual violence on 7 October was caused by the distorting effect of empathy is not to justify it. Nothing can do that. It therefore is incumbent on Council to eliminate this uneven treatment. One way for Council to do so would be by accepting the London and Cairncross resolutions but supplementing them with further resolutions condemning the sexual violence of 7 October, expressing support for the hostages who continue to be subjected to sexual violence, and forbidding certain interactions and relations with those who support Hamas or have not distanced themselves from its actions on 7 October.

But there is another, far simpler, way for Council to undo Senate’s uneven treatment of the violence in Gaza and the sexual violence on 7 October. It could reject the London and Cairncross resolutions. For the four reasons mentioned above, which are discussed in greater detail below, this is what Council should do.

3. The Cairncross Resolution Unlawfully Violates Academic Freedom

That Senate unlawfully violated the right to academic freedom of UCT academics by adopting the Cairncross resolution is demonstrated by the following argument:

(a) A professor in UCT’s Faculty of Law decides to write an article explaining why, in waging the war in Gaza, Israel is not committing genocide.

(b) Were Senate to prohibit the professor from writing and publishing this article, it would unlawfully violate his right to academic freedom.

(c) However, Senate would unlawfully violate the professor’s right to academic freedom also if it deliberately put obstacles in the way of his writing and publishing this article.

(d) Senate would deliberately be putting an obstacle in the way of the professor’s writing and publishing this article if it were to prohibit him from entering into or continuing a relationship with the Israel Defence Forces or with a research group or research network that includes one or more of its members, even though his doing so is necessary for him to write, or will assist him in writing, his article.

(e) The Cairncross resolution prohibits exactly this.

(f) It follows that, by adopting the Cairncross resolution, Senate unlawfully violated the professor’s right to academic freedom (and that of other similarly situated UCT academics).

Of course, if the Cairncross resolution is to have any teeth, it must be that those who do what it prohibits will be subject to sanctions of some kind. Worryingly, the resolution does not specify what those sanctions are to be. Will those of us who do what it prohibits be denied promotion, have our pay docked, or be refused admission to the staff common room? Will we, if we are repeat offenders, be fired? And who will sit on the tribunal that is to determine our punishment? Perhaps it will be Professor Cairncross and Associate Professor Chaturvedi (they will surely volunteer). But, in that event, one appearing before the tribunal could hardly be blamed if he wonders whether his case will be impartially adjudicated.

4. The Cairncross Resolution Exceeds Senate’s Authority

The Cairncross resolution presupposes that Senate has the authority to impose, upon UCT academics, the prohibition it describes. But Senate does not have that authority, no more than it has the authority to prohibit UCT academics from eating avocados grown in Israel, or wearing spectacles made in Israel, or using software developed in Israel, in their UCT offices (at least not if the reason for these prohibitions is the fact that those avocados or spectacles were, or that software was, grown, made, or developed in Israel).

Senate is a creature of statute. As such, it has only as much authority over UCT academics as is given to it by, or has been conferred upon it in terms of, the Higher Education Act and UCT’s Institutional Statute. According to the former, Senate is accountable to Council for the ‘academic and research functions’ of UCT. According to the latter, Senate, more specifically, ‘must organise and control the teaching, curricula, syllabuses, examinations and research of the University’.

The notion of ‘control’ in UCT’s Institutional Statute could, of course, be given the all-encompassing (and chilling) Stalinist meaning that the Cairncross resolution requires. But, notwithstanding their zealotry, even Professor Cairncross and Associate Professor Chaturvedi should be able to recognise that, in the context of UCT’s Institutional Statute, ‘control’ must be narrowly construed.

In the broad Stalinist sense of ‘control’ required by the Cairncross resolution, Senate would be acting within the scope of its authority to ‘control’ research at UCT were it to prohibit UCT academics from writing articles claiming that Israel is not committing genocide in Gaza. But Senate would also be acting within the scope of that authority were it to prohibit UCT academics from writing articles claiming that race-based affirmative action and cadre deployment have done South Africa more harm than good, or that DA-run municipalities are more pro-poor than ANC-run ones.

Indeed, if ‘control’ in UCT’s Institutional Statute were understood in the broad Stalinist sense required by the Cairncross resolution, there would be no research that Senate could not stop from being published: because it does not line up with Senate’s political or moral views (or, more accurately, the political or moral views of fifty per cent plus one of the one third of Senate’s membership that is required for Senate to be quorate).

It is, I suppose, within the realm of possibility that Professor Cairncross and Associate Professor Chaturvedi are sufficiently self-righteous that they would believe it a jolly good thing if Senate were to prohibit UCT academics from writing articles claiming that Israel is not committing genocide. Perhaps they would believe likewise about articles questioning the value of race-based affirmative action or cadre deployment. However, sensible UCT academics – in fact sensible people generally – would think otherwise.

It will sometimes happen that a UCT academic has a view of the world (or an aspect of it) that differs from the way most members of Senate view the world (or that aspect of it). What is more, the fact that the academic has that view may upset, even greatly, the majority of Senate that disagrees with it. It may upset the majority of Senate that disagrees with it so much that that majority would rather the academic never expressed that view.

However, as academics, we have not only a right, but also a duty, to write about the world as we see it. The notion of ‘control’ in UCT’s Institutional Statute therefore cannot be so widely construed that it would give a majority of Senate (or of a Senate quorum) the power to prevent a UCT academic from exercising this right or discharging this duty. Nor, therefore, can it be so widely construed that it would give a majority of Senate the ability to prevent a UCT academic from writing an article expressing a view which the majority dislikes – or prevent the academic from creating or maintaining the relationships that would assist her in writing that article.

It is inappropriate for Council to interfere with the way in which Senate exercises its authority. However, it is appropriate – and necessary – for Council to intervene when Senate tries to exceed its authority. By adopting the Cairncross resolution, Senate is trying to do exactly that. It is attempting to exercise authority it does not possess. It is Council’s responsibility to ensure that this attempt fails.

5. The Cairncross Resolution Seeks to Coerce rather than Persuade

The fact that Professor Cairncross and Associate Professor Chaturvedi brought their resolution to Senate reflects an intellectual indolence on their part which has no place in the academy. The time-honoured way for academics to change the practices of others is by persuasion. Persuading others is hard work. It requires the painstaking gathering of evidence and the laborious construction of arguments. It requires that one build a case which no reasonable person could dismiss.

Professor Cairncross and Associate Professor Chaturvedi seek to avoid the effort that they would have to expend to try to persuade every one of their UCT colleagues to take the actions they (i.e., Professor Cairncross and Associate Professor Chaturvedi) think ought to be taken in response to the war in Gaza. Rather than try to persuade their colleagues, Professor Cairncross and Associate Professor Chaturvedi want to coerce them. They want to use the blunt instrument of a Senate-imposed rule to bludgeon those of their colleagues who do not share their view of the war or who, though sharing their view of the war, do not share their view as to how best to respond to it, into submission.

As it happens, I disagree with the view of the war in Gaza, and of how UCT academics ought to respond to it, that is held by Professor Cairncross and Associate Professor Chaturvedi: see here, here, and here. So do some (even if not all) of my Law Faculty colleagues. Nonetheless, none of us ever dreamt of asking Senate to restrict Professor Cairncross’s and Associate Professor Chaturvedi’s ability to gather the information they need to support their view. We never dreamt of it mainly because, had Senate done so, it would have unlawfully limited Professor Cairncross’s and Associate Professor Chaturvedi’s fundamental right to academic freedom, but also because, had Senate done so, it would have exceeded the authority that the Higher Education Act and UCT’s Institutional Statute confer upon it.

Professor Cairncross and Associate Professor Chaturvedi did not see the need for them to exercise a reciprocal restraint. Not only did they dream of restricting the ability of UCT academics, who have a different view to theirs, to gather the information they need to support their contrary view. They also tried to turn that dream into a reality: a nightmarish reality in which Senate, in violation of a fundamental right and in excess of its statutory authority, will make it its business to prevent UCT academics from going about their business.

Senate should never have allowed itself to be used in this manner. It should have refused to give Professor Cairncross and Associate Professor Chaturvedi what they were asking for. Since Senate will not rectify this error on its part, Council needs to do so.

6. The London Resolution Abuses its Proposers’ Senate Membership

The third, fourth, and fifth reasons discussed above are reasons for Council to reject the Cairncross resolution. But they are not reasons for it to reject the London resolution. For Senate did not, by adopting the London resolution, violate any UCT academic’s right to academic freedom, or exceed its statutory authority, or enable some UCT academics to coerce others. However, this does not mean that Council should not nevertheless reject the London resolution. It should, for the reason explained below.

Most members of Senate (like most people), I am sure, have their pet hates and their hobby horses, issues that they feel very strongly about and would like others to feel very strongly about too. But, unlike Professor London and Associate Professor Seedat, most members of Senate do not seek to take advantage of, or exploit, their Senate membership to try to obtain Senate’s authoritative endorsement, its imprimatur, for their particular views about these issues.

Imagine it were otherwise. There would have to be a Senate meeting every day, to decide whether it should: ‘condemn’ the transport of live cattle by cargo ship from South America to the Middle East, ‘call’ for an end to governmental corruption in South Africa, ‘urge the international community’ to take greater steps to stop global warming, ‘reject’ the criminalisation of computer-generated child pornography, ‘express [its] support’ for Ukraine (or, contrariwise, for Russia), ‘express [its] concern’ over the impact that social media is having on young adolescents, and ‘express [its] solidarity’ with LGBTQ+ people in Uganda. The possibilities are endless.

There may be some issues of this kind on which Senate will be able to speak with one voice. But on most issues of this kind, there will be disagreement. When Senate, in respect of such an issue, expresses the view of the majority, as if it were the view of all, those who disagree are bound to feel disaffected.

There are many matters in respect of which Senate will have no choice but to take a decision, one way or the other. That would usually be because, otherwise, Senate would not be performing its core business of organising and controlling (in a narrow non-Stalinist sense) UCT’s teaching and research. But it could also be because Senate has to determine how it goes about performing its core business of organising and controlling UCT’s teaching and research.

Those who disagree with a decision which Senate has no choice but to make may also feel disaffected. But such disaffection, though regrettable, is unavoidable. The disaffection caused by Senate’s adoption of a resolution like the London resolution, by contrast, is avoidable. Senate did not need to adopt, or even to consider, the London resolution in order to carry out (or to determine how to go about carrying out) its core business of organising and controlling UCT’s teaching and research. Nor, therefore, should the London resolution have been adopted, or even considered, by Senate.

There is, unfortunately, no way for Council to unsay what Senate said by adopting the London resolution. However, Council can, and should, do the next best thing. It should, by refusing to adopt the London resolution as its own, make it clear that, in its view, it was an error for Senate to adopt it.

Anton Fagan, WP Schreiner Professor of Law: University of Cape Town, 17 May 2024