November 23, 2016
In Blog News
By Michael Brull on
One of the leading opponents to apartheid, and later a prominent critic of Israel, John Dugard spoke with New Matilda’s Michael Brull recently.
When John Dugard came to Sydney, I was excited. I have a lot of respect for him, and was going to not only meet him, but interview him at length. Dugard has a tremendous record of advocating for principles of human rights and anti-racism, first in apartheid South Africa, then in Palestine.
Most people I know haven’t heard of Dugard. It was only in law school that I learned about his record. I conducted some research into law and apartheid in South Africa, reading through back issues of law journals, to see what legal academics had to say at the time. Aside from those praising Dugard, and what Dugard himself wrote, much of the literature came back to Dugard in some way or other.
In legal circles in South Africa, Dugard’s contributions are widely known, and are treated with something approaching reverence. From the early 1970s, Dugard wrote scathing critiques of judges and legal academics in apartheid South Africa. He argued that whilst judges claimed to be merely impartial upholders of the law, in fact they were actively making choices to defend infringements on civil liberties and injustice.
Dugard also acted as lawyer, or legal consultant, in numerous cases challenging apartheid law and practices. In 1978, Dugard was the founding director of the University of Witwatersrand’s Centre for Applied Legal Studies. This innocuous name masked its agenda: it was a human rights centre.
Edwin Cameron – who worked at the Centre for Applied Legal Studies in the ’80s, and later became a Justice of the Constitutional Court – reviewed Dugard’s record in the South African Journal on Human Rights.
Cameron noted that “Dugard wrote at a time when the norm for academic critics was deference to the courts, sometimes unctuous. By contrast, his writing was candid, honest and outspoken.”
For voicing his critiques, Dugard “faced opprobrium and even prosecution (for quoting Dr Nthatho Motlana, a banned person), but he did not waver.” Cameron concluded that “the clear voice of Dugard’s denunciation of apartheid collusion by lawyers and judges deserves credit as one of the reasons why today we have a law-based constitutional order whose legitimacy is politically unquestioned.”
In the 1980s, there was a famous debate between Raymond Wacks and John Dugard. Wacks argued that the moral judge should resign from the apartheid bench. Dugard thought it was better for them to do their best to make whatever humane rulings they could.
Despite their disagreement, Wacks had nothing but respect for Dugard:
“Few students who have passed through the University of the Witwatersrand School of Law in the last twenty years will have failed to have been deeply inspired by Professor John Dugard. As a teacher, he has encouraged almost a generation of future lawyers to recognize the potential of law as a means of attaining justice and, at the same time, to examine the extent to which the law of South Africa subverts that very objective. His influence on the practice and teaching of law is, I believe, considerable. He has, almost single-handedly, developed an important jurisprudence of the erosion of human rights in this country and, in the process, won international recognition and respect as a tenacious champion of liberty in a society in which it is under relentless siege.”
Ismail Mohamed was appointed by Nelson Mandela as the Chief Justice of South Africa in 1996. In 1998, Mohamed said that one
“clear truth needs vigorously to be recognised: the contribution of John Dugard and the small coterie of young and vigorous academics whom he attracted, in chiselling away at the very foundations of orthodox jurisprudential perspectives in South Africa and in restructuring the moral and jurisprudential values of generations of lawyers who began to permeate the practice and teaching of the law, has been among the most crucial, the most profound and the most decisive even if not the most visible of the influences which have impacted and which will continue to impact on the structure of our legal universe.”
More simply, legal academic Max Du Plessis observed that “Dugard is regarded by many as the father of human rights in South Africa”.
Du Plessis observed that though Dugard was among the final 10 candidates considered for the Constitutional Court by Mandela, he was “not appointed despite his towering stature”. Dugard went on to receive a prestigious Chair in international law at Cambridge University, and served as a judge on the International Court of Justice.
In 2000, Dugard was appointed to a United Nations Commission to investigate human rights violations in Palestine during the outbreak of the Second Intifada. In 2001, he was appointed the UN Human Rights Council’s Special Rapporteur on human rights in the Occupied Palestinian Territories.
I met Dugard in the lobby of his hotel in the Sydney CBD in the early afternoon. I had no idea where a quiet place to talk would be, and so I dragged him to a pub which I hoped would be empty and quiet.
Dugard was friendly, if not particularly warm. His manner was unassuming and modest. Despite his considerable accomplishments and stature, Dugard has none of the self-importance I’ve found to be common among eminent jurists.
Over the course of the interview, he is restrained and measured. He doesn’t use strong language on anything, or exude any particular emotions. When discussing injustice, Dugard rarely rises to the level of indignation. If I were to summarise Dugard in three words, they would be humble, earnest, and humane.
I asked Dugard if he knew much about the issues when he was appointed to investigate Palestine for the UN. He said that he visited Israel and Palestine in the 1980s, and “already had the sense of déjà vu, seeing what happened in the Palestinian territories, thinking that I’d already seen it all before in South Africa”. I noted that Dugard had seemingly become more critical of Israel, only comparing its practices to apartheid in 2006.
Dugard explained that he was
“aware of the similarities between the South African apartheid system, and the system in Israel, well before 2006. But I deliberately refrained from drawing the comparison, because my reports were already highly controversial, and I felt that to draw the comparison with apartheid would distract from other features of my reports. The Western states in particular were very critical of my reports. I felt quite rightly in retrospect that they would be so annoyed with the fact that I compared the situation in the Palestinian territories to that of apartheid South Africa that they would not take my report seriously. So that’s why I deliberately refrained from drawing the comparison until 2006.”
I asked, “So what changed in 2006?”
“Well it became very obvious what was happening in the Occupied Territories was a form of apartheid, that the settlements continued to grow, that the construction of the wall resulted in the seizure of more and more land, there was more political repression. So, I just felt that it was wrong not to make the comparison.”
I noted that some, such as Israeli scholar Uri Davis, and Palestinian scholar Saree Makdisi, have argued that Israel doesn’t just practice Apartheid in the Occupied Territories, but also within Israel proper, within the borders of the Green Line. I asked Dugard for his response:
“I think it’s very clear that apartheid is practiced within the Occupied Palestinian Territories. Because you have two racial groups, you have the Jewish settlers, and the Palestinians. The law discriminates very, very clearly against Palestinians. Also you have systematic repression of Palestinians, which resembles the kind of repression that blacks were subjected to in South Africa. And thirdly, you have the territorial fragmentation, which resembles the old Bantustan system. Now these are features which are peculiar largely to the Occupied Palestinian Territories…
Also, if I look at the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid. It’s very easy to judge the system that applies in the Occupied Territories to be apartheid in terms of that Convention.
But when it comes to Israel itself – the position is more difficult, because Palestinians do have a franchise, they do have representation in the legislature, in the Knesset. They are able to, and do in fact sometimes hold high office. There are discriminatory laws, there is some repression, but it’s not on the same scale as in the Occupied Palestinian Territories. And of course there’s no territorial fragmentation of the kind one finds in Occupied Palestinian Territories.
Also, strategically, I think it’s wiser to focus more on the Occupied Palestinian Territories, because it’s so clear there. Israelis who dispute the analogy always come back to arguing that it doesn’t apply within the Green Line. And it is an arguable case.“
Dugard concluded that when it comes to the Occupied Palestinian Territories, “I think the case for apartheid is… so convincing… You cannot dispute it. It’s just so clear.”
Over the course of the interview, Dugard repeatedly stressed that he faced more vilification for his views on Palestine than for his opposition to apartheid in South Africa. He said
“I faced much more opprobrium for my views on Palestine than I ever did on my views on apartheid in South Africa. In the community in which I moved, which was the predominantly white liberal community, but also liberal black community, my views were shared and admired, and so there was very little opprobrium.”
Dugard said that
“You can’t underestimate the power of labelling a person as anti-Semitic. It’s a very powerful weapon. Politicians can be destroyed overnight by being labelled as anti-Semitic. People are socially ostracised… I do experience, I have felt social ostracism because of my views on Palestine, in a way which I never felt because of my views on apartheid.”
I asked Dugard to elaborate on his experiences of being called anti-Semitic for his criticisms of Israel.
“When I used to go to the United States during the apartheid years, I was always welcomed as some sort of folk hero, involved in the struggle. Now when I go to the United States and I express views critical of Israel, I’m simply rejected, and not taken seriously. And of course, one is inevitably excluded from opportunities. I realise that in the academic world and the professional world I have been excluded to some extent for my views on Palestine. I’m at the stage where it doesn’t really matter much, I’m at the end of my career. But young lawyers, or young scholars have to take account for the fact that if they do express views in favour of Palestine they are likely to suffer.”
I asked Dugard about the role of boycotts, divestment and sanctions in the struggle against South African apartheid. Dugard said that he was affected by it.
“Like other South Africans, I had limited access to cultural life and sporting life as a result of those sanctions. I was legal adviser to Bishop Desmond Tutu who advocated sanctions. In theory it was unlawful to advocate sanctions abroad. And every time Tutu went abroad, he did advocate sanctions abroad, and every time he returned, I would meet with him and warn him that ‘you might be prosecuted’ but in fact he was never prosecuted.”
Dugard was particularly affected by the academic boycott.
“We always felt the academic boycott was unfair, because in South Africa there were universities, predominantly Afrikaans language universities that supported apartheid, and English language universities that did not. But we were all subjected to the same academic boycott.
For instance, my university, the University of Witwatersrand institutionally proclaimed its opposition to apartheid every year. We held a university assembly of all staff and students, at which we declared our opposition to apartheid and committed ourselves to ending apartheid and opening the university to all races. So we felt that we were doing all that we could to oppose apartheid and it was therefore unfair that we should be subjected to the academic boycott.
And certainly it was very strict, I was able to travel the United States to speak at American universities, and also English universities, but I was completely excluded from university life in Europe during that period, the Western European states were very, very strong in their opposition to apartheid.”
Dugard headed his own mission to investigate war crimes during Israel’s war on Gaza from 2008-2009, and wrote a lengthy report on it. I asked him how he thought his report compared to the one prepared by the Human Rights Council mission, led by his fellow South African jurist, Richard Goldstone. Dugard said he is “great friends” with Goldstone. He said that there “was very little difference between our reports”, describing Goldstone’s report as “excellent”. Dugard thought that it was “a pity that it was discarded”.
“It’s interesting, Richard Goldstone withdrew one small section of the report. He said that on second thought he had doubts about whether Israel had acted deliberately in targeting civilian targets. That was a small section of the report, but that allowed the international community to discard the report as a whole. I think that it’s very interesting, that Hillary Clinton, in the present election, has secured Jewish funding for her presidential bid, inter alia on the basis of killing the Goldstone report, and she certainly did, when she was Secretary of State, go out of her way to destroy it.”
I commented that Goldstone walked back the report in a famous op ed, though I didn’t think there was any new evidence to justify his claims. Dugard agreed, “Yes I’m not satisfied with his explanations at all.” I asked him if he had any speculation as to why Goldstone had done so.
“I’ve had discussions with him, and this remains a mystery to me. He hasn’t given any satisfactory explanation for his change. But I can understand the kind of pressure to which he was subjected. He was subjected to pressure from the Jewish community in Johannesburg. But I don’t think that was the reason. I think there was pressure from other sources, and I do not know. But I do know [as]someone who had been on the receiving end of hate mail and accusations of anti-Semitism that it’s not a very pleasant situation.”
I asked Dugard what he thought of the Human Rights Council’s report on the war on Gaza in 2014, known as the McGowan Davis Report. He replied that:
“It’s certainly not as good as the Goldstone report. It’s not as comprehensive, and it’s not as insightful, and it’s not as strong in its criticisms. It does make the point that serious crimes were committed, but it lacks the force of the Goldstone report.”
As readers may know, I thought the report was dreadful. I said “I guess I thought that it was very equivocal in that it didn’t necessarily take in all of the evidence, and that when it had the evidence it reached very, very weak conclusions, from the evidence it cited.” Dugard replied,
“Yes I think you’re right. The conclusions were weak, the evidence was there. But I think in the case of the Goldstone report, they took account of the evidence and they drew firm conclusions. The McGowan Davis report was weak on conclusions. So I found it a slightly disappointing report.”
I commented to Dugard that the American scholar Norman Finkelstein has argued that the human rights literature on the 2014 war was a lot thinner than the many quality reports on the war in 2008-2009. I asked why Dugard thought that was.
He told me to “read [Finkelstein’s] book on the subject, which is still to appear.” Dugard had “read it in proof… Norman Finkelstein has written an excellent book on the Gaza conflicts, not only on Protective Edge, but also on Operation Cast Lead. And I know he’s having difficulty in finding a publisher, but it’s really an excellent book.”
Dugard said that the book is “quite brutal, but it’s good.” He says that Finkelstein is a “very serious scholar, and he’s been unfortunately discredited by people like Dershowitz.”
I asked Dugard what he thought of Finkelstein’s work more generally.
“Well, as I’ve said, he’s a very serious scholar. He has strong views, he has an independent mind. For instance, he’s been critical of certain aspects of BDS. He’s not afraid to speak his mind on all subjects. I really do think that he should be recognised as probably the most serious scholar on the conflict in the Middle East. And it’s unfortunate he has difficulty in finding publishers for much of his work.”
Dugard had a debate with Dershowitz in August 2014 about the war in Gaza. Neither of them were present in person at the debate, but they were both beamed in via Skype. Due to technical difficulties, Dugard’s voice was broadcast, but his face was not. I asked Dugard about the experience. He acknowledged of Dershowitz that “there was a time when he was a very distinguished academic”. However, “today he’s become very much a political figure and he’s a skilled debater, but he also engages in extravagant…” Dugard paused for a moment… “falsehoods. So I didn’t enjoy it.”
I asked Dugard if he supported a two-state solution to the conflict.
“I always have been, and I would like to see a two-state solution materialise, because I do think that’s the best way to secure peace in the region, because I really don’t see a single state being a peaceful state. Because initially there will be a Jewish minority that controls the state, and that will lead to the kind of tension that we had in apartheid South Africa. And later I suspect that when the Palestinian Arab majority becomes the government, they will be discriminating against the Jewish minority.
So I think those who believe that a single state will be a peaceful democratic state in which Jews and Arabs will live peacefully together are being very naïve. I do think that a two state solution offers the best solution for a peaceful resolution of the dispute. But as I’ve indicated, I think that Israel is making a two-state solution virtually impossible, so we have to come to terms with the possibility of a single state.”