chapter 18 Fighting Apartheid on a Second Front: Dugard’s Work on the Occupied Palestinian Territories
Mia Swart
I, like virtually every South African who visits the occupied territory, have a terrible sense of déjà vu.* ⸪ i Introduction1
Not many people understand the full implications of the idea that the depri- vation of the freedom of one is the deprivation of the freedom of all. Nelson Mandela powerfully conveyed this idea when he said:
We know too well that our freedom is incomplete without the freedom of the Palestinians; without the resolution of conflicts in East Timor, the Sudan and other parts of the world.2
John Dugard is the personification of this principle of the integrated and in- terdependent nature of freedoms, near and far. Dugard’s work as human rights campaigner for the Occupied Palestinian Territories (opt) will be among his most powerful and enduring legacies. For many decades to come he will be known not only as the leading international law academic in the South African context and activist against Apartheid but also as an effective and highly
* John Dugard, “Israel’s crimes are infinitely worse than Apartheid South Africa,” Democracy Now, 6 May 2015, available at http://www.democracynow.org/blog/2015/5/6/ex_un_official _john_dugard_israel. Dugard was the un Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 from 2001 to 2008. 1 This chapter is dedicated to the late Vera Gowlland-Debbas for her dedication to the fight for human rights in Palestine, and who was a close friend of John’s. 2 Address by President Nelson Mandela at the International Day of Solidarity with the Palestinian People, Pretoria, 4 December 1997.
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influential advocate for Palestinian statehood and the liberation of the Pales- tinian people. He has not only worked tirelessly in his capacity as un Special Rapporteur on the situation of human rights in the Palestinian territories oc- cupied by Israel since 1967 but also helped create the language used to describe the effect of the Israeli Occupation. In doing so, Dugard is one of very few South Africans who have successfully turned their activism against Apartheid into effective international activism. Whereas many South Africans who fought Apartheid in the courts and in their scholarship had taken up ad hoc international roles such as mediators and ad- visors in transitional contexts, none have been as active, fearless and prolific and very few have made the concrete difference made by John Dugard. As an intellectual and an activist, Dugard is one of the few South African lawyers who have made the transition between the national and the international in a natural and highly effective way.3 A contribution such as this cannot do justice to Dugard’s extensive contri- bution to raising international awareness of the situation in the opt. Whereas the Palestinian political and legal situation is rife with examples of human rights violations and instances of the breach of various principles fundamental to the rule of law, the present chapter will not traverse the entire spectrum of these violations in Palestine. The chapter will focus on only two aspects of this work: the impact of Dugard’s employment of language in his un reports and advocacy and the role he played in initiating the Advisory Opinion of the In- ternational Court of Justice (icj) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter “the Wall Opinion”).4 It will be shown that Dugard’s faith in international adjudication was a powerful force behind bringing the Wall Opinion to the icj. It will further be argued that the fact that the Advisory Opinion of the icj in the Wall Opinion was not recognised or implemented by Israel does not mean that the Opinion did not have tremendous value for those advocates for Palestinian rights that seek a legal framework and a judgement to hook their work onto. By making the Wall dispute the subject matter of icj advisory jurisdiction, Dugard helped legalize and justicialize the Apartheid analogy as applicable to Israel’s actions. In the introduction to their joint article on the use of the Apartheid analogy, Dugard and Reynolds describe their article as “a doctrinal legal enquiry con- ducted in the language of international law and in the context of contemporary
3 See C. Albertyn and M. Swart, “Editors’ Introduction to Special Issue” (2010) 26 South African Journal on Human Rights 179. 4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 2004 icj Reports, p. 190.