Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
8 March 2024

The case for an academic boycott of Israeli universities complicit in the Gaza onslaught

Apart from the odd statement demanding a ceasefire in Gaza, South African universities have, by and large, remained silent about the ongoing killing of Palestinian civilians, an onslaught that the International Court of Justice recently found could plausibly amount to genocide.

Confronted with what Pankaj Mishra rightly describes in the most recent London Review of Books as the Israeli “liquidation of Gaza”, an onslaught “whose victims, as Blinne Ní Ghrálaigh, an Irish lawyer who is South Africa’s representative at the International Court of Justice in The Hague, put it, ‘are broadcasting their own destruction in real-time in the desperate, so far vain, hope that the world might do something’’, no university has, to my knowledge, imposed an academic boycott on Israeli universities, or even on such universities with close ties to the Israeli military, a military whose soldiers regularly post videos of themselves committing war crimes in Gaza.

Leaving aside for the moment colleagues who cloak themselves in a veil of ignorance, essentially claiming that because we cannot know everything that is happening in Gaza from afar, we cannot know anything that is happening there (despite what we witness every day with our own eyes), I will assume that this failure to act stems, at least in part, from the noble concern that imposing an academic boycott on Israeli institutions will impermissibly infringe on the right of South African academics to academic freedom guaranteed by section 16(1)(d) of the Constitution.

Of course, some academics and university administrators from Global South universities also rightly fear that they will be severely financially punished, especially by US institutions, if they dare to take a principled stance against the Israeli onslaught on civilians in Gaza. Regrettably, I can’t claim to be immune to such threats, or that I would never — for purely self-serving reasons — give in to them.

But this is not such a case.

As Mishra argues, “Gaza has become for countless powerless people the essential condition of political and ethical consciousness in the 21st century.” For many, the sense of outrage is animated by the unconscionable hypocrisy of political elites and their governments in Global North countries allied to Israel, and (perhaps naively) by the hope that drastic action may put pressure on their governments consistently to uphold the ideals they claim to embrace; ideals, as Mishra puts it, such as “respect for freedom, tolerance for the otherness of beliefs and ways of life; solidarity with human suffering; and a sense of moral responsibility for the weak and persecuted”.

Put differently, for many of us Gaza has become a test case for the proposition that “if there is any … lesson to be drawn from the Shoah [Holocaust], it is ‘Never Again for Anyone’ ”.

Saying nothing and doing nothing is not an option.

Nevertheless, as the right to academic freedom is a profoundly important right worthy of vigorous protection, and as academic boycotts could easily be abused to pursue partisan political ends and to silence dissent, it is important to ask difficult questions about whether the imposition of an academic boycott against Israeli institution complicit in what appears to be a genocide could ever be justified.

To do so, it would be helpful to consider the possible scope and content of the right to academic freedom guaranteed in section 18(1)(d) of the Constitution. South Africa’s Constitutional Court has not yet considered this issue, but I find the 1997 Unesco definition of academic freedom helpful. Unesco defines academic freedom as:

The right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.

Defined purely as a negative right, it has been argued that the right protects academic staff from being punished for the content of their research, teaching and/or opinions. But in South Africa, rights sometimes also impose positive obligations on the state to ensure full enjoyment of these rights, which means the right to academic freedom in section 16(2)(d) might be broader in scope than the Unesco definition envisages.

It would nevertheless be hard to argue that the right prohibits universities from adopting any rules or policies that may make it more difficult for some academics to do the kind of research they wish to do. I am thinking, for example, of rules guiding the funding of research activities or the attendance of academic conferences, or rules that regulate ethical conduct in research.

When I cannot obtain funding from UCT to attend the annual conference of the International Society of Public Law because I have used up all my conference funding for the cycle, I would be hard-pressed to argue that this limits my right to academic freedom because it deprives me of the opportunity to meet and learn from colleagues elsewhere in the world.

(As the conference happens to be held in Madrid this year, it does deprive me of an opportunity to visit the Prado museum, but it would be preposterous for me to argue that this limits my right to academic freedom, despite the fact that I am working on a book chapter on queer art.)

It would also be difficult to argue that a decision by a university not to enter into a formal agreement with another university because that university has a bad academic reputation or a lamentable track record on human rights limits my right to academic freedom by depriving me of the benefits of such an agreement.

While universities, regrettably, are not always consistent when they make such decisions — the decision by my university to enter into an agreement with a Chinese university to establish the Confucius Institute being a case in point — few people would argue in other contexts that decisions not to enter into formal agreements with other universities because of their bad reputation or abhorrent policies or practices, would impermissibly infringe on academic freedom.

It is for this reason that I believe it is not tenable to argue that a decision by a university to sever all formal ties with Israeli institutions as part of a boycott of Israeli academic institutions complicit in the liquidation of Gaza and other crimes associated with (or necessitated by) its occupation of Gaza and the West Bank infringes on academic freedom.

What appears to be a more difficult question is whether a decision to prohibit individual South African academics from having any ties with another institution or participating in the activities of that institution because that institution is complicit in genocide or war crimes committed by the government of the host country implicates academic freedom. More difficult, perhaps, because this restriction would be imposed directly on individual academics in South Africa, which could have an impact on their ability to carry out their research as they see fit.

Of course, in other contexts, rules that prohibit academics and other researchers from working with specific researchers or institutions may not cause similar uneasiness, because the purpose of those prohibitions would manifestly not be to censor what academics can think or write or say, but rather to pursue an entirely legitimate, pressing aim to safeguard and protect the academic enterprise as a whole.

An extreme example: I would support a ban on academics from the Health Sciences Department at my university working with colleagues from another institution that conducts experiments similar to the infamous and unconscionable Tuskegee Study of Untreated Syphilis in the Negro Male done in the US until the early 1970s. The same holds true for a ban on working with colleagues advising an authoritarian regime on the most efficient or cost-effective manner to extract confessions through torture from opponents of that regime, or on the most cost-effective and fastest way to kill off all LGBTQ+ people (or all LGBTQ+ academics) in that country.

I am not using these examples to be provocative, but rather to get to a larger truth about the scope and content of academic freedom, and about the permissible limits that may be imposed on it. It is this: the purpose and intended effect of all the measures I cited in the examples above (on funding, on formal agreements between universities, and on other restrictions placed on individual academics) are pivotal when assessing whether the measure places unjustifiable limits on the right to academic freedom.

It is for this reason that I strongly support an academic boycott of Israeli universities complicit in the current Israeli onslaught in Gaza which, I believe, constitutes the crime of genocide.

As is the case with all other states that have signed and ratified the Convention on the Prevention and Punishment of the Crime of Genocide, the South African state has a duty under Article 1 of the convention to “prevent and to punish” the crime of genocide, “whether committed in time of peace or in time of war”.

Although South African universities are organs of state, they cannot intervene directly to stop Israel from continuing with its genocidal campaign in Gaza, but they can honour this obligation (and the principle that “never again” means “never again for anyone”) by refusing to work with Israeli academic institutions complicit in the genocide.

Of course, such a boycott will harm Israeli academic institutions and in all likelihood limit the academic freedom of academics affiliated to those institutions.  While this is self-evidently not a Constitutional Law question (as Israeli academics are not protected by our Bill of Rights), it is not a course of action to be taken lightly, because — in my view at least — academic boycotts raise profound questions about freedom of scholarship of the “slippery slope” variety.

But this is one of the few cases in which such qualms look, at best, heartless, and at worse, deranged and profoundly immoral. Israel, the occupying force, has destroyed or partly destroyed all universities in Gaza and has killed scores of Palestinian academics. It is almost certainly committing what is sometimes called the crime of crimes — genocide — and perpetrating this crime against a civilian population that is largely Palestinian, and thus a population that elites in countries of the Global North tend to view as “non-white”, as “Other”, as “dangerous”, and not worthy of equal concern and respect.

Academics at South African universities cannot do much to honour the spirit of Article 1 of the Genocide Convention, but we can demand and support actions by our universities that would at least send a signal to Israeli elites that when your government commits a genocide, you should at least expect to suffer some consequences, even if it is only the minor inconvenience of not being able to collaborate with a South African University and its academics.

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