John Dugard: Apartheid and Occupation under International Law, Palestine Center, March 26, 2009.
Editor Note: Richard Goldstone has just published a new Op-Ed in today’s New York Times titled “Israel and the Apartheid Slander.” This recent article by South African international law expert John Dugard provides an interesting counter argument.
I spent most of my adult life in South Africa opposing apartheid, as an advocate, legal academic and, from 1978-1990, director of the Centre for Applied Legal Studies( a research institute engaged in human rights advocacy and litigation). In my work I compared and contrasted apartheid with international human rights standards and advocated a Constitution with a Bill of Rights in a democratic South Africa. Unlike many other South Africans, I was never imprisoned but I was prosecuted, arrested and threatened by the security police. My major book, Human Rights and the South African Legal Order (1978), the most comprehensive account of the law and practice of apartheid, was initially banned.
I had wide experience and knowledge of the three pillars of the apartheid state – racial discrimination, repression and territorial fragmentation. I lead lawyers campaigns against the eviction of black persons from neighborhoods set aside for exclusive white occupation by the Group Areas Act, and against the notorious “pass laws”, which made it an offense for blacks to be in so-called “white areas” without the correct documentation. These campaigns took the form of free legal defense to all those arrested which made the systems unmanageable. Through the Centre for Applied Legal Studies I engaged in legal challenges to the implementation of the security laws and emergency laws, which allowed detention without trial and house arrest – and, in practice, torture. I also challenged the establishment of Bantustans in the courts.
After South Africa became a democracy, I was appointed to a small committee of experts charged with the task of drafting a Bill of Rights for the 1996 South African Constitution.
I visited Israel and the OPT in 1982, 1984, 1988 and 1998 to participate in conferences on issues affecting the region. In 2001 I was appointed as Chair of a Commission of Enquiry established by the Commission on Human Rights to investigate human rights violations during the Second Intifada. In 2001 I was appointed as Special Rapporteur to the Commission on Human Rights (later Human Rights Council) on the human rights situation in the OPT. In this capacity I visited the OPT twice a year and reported to the Commission and the Third Committee of the General Assembly. My mandate expired in 2008. In February 2009 I lead a Fact-Finding Mission established by the League of Arab States to investigate and report on violations of human rights and humanitarian law in the course of Operation Cast Lead.
From my first visit to Israel/OPT I was struck by the similarities between apartheid in South Africa and the practices and policies of Israel in the OPT. These similarities became more obvious as I became better informed about the situation. As Special Rapporteur I deliberately refrained from making such comparisons until 2005 as I feared that such comparisons would prevent many governments in the West from taking my reports seriously. However, after 2005 I decided that I could not in good conscience refrain from making such comparisons.
Of course the two regimes are very different. Apartheid South Africa was a state that practiced discrimination and repression against its own people. Israel is an occupying power that controls a foreign territory and its people under a regime recognized by international humanitarian law. But in practice there is little difference. Both regimes were/are characterized by discrimination, repression and territorial fragmentation. The main difference is that the apartheid regime was more honest. The law of apartheid was openly legislated in Parliament and was clear for all to see, whereas the law governing Palestinians in the OPT is largely contained in obscure military decrees and inherited emergency regulations that are virtually inaccessible.
In my work as Commissioner and Special Rapporteur I saw every aspect of the occupation of the OPT. I witnessed the humiliating check points, which reminded me of the implementation of the pass laws (but worse), separate roads (unknown in apartheid South Africa) and the administrative demolition of houses, which reminded me of the demolition of houses in “black areas” set aside for exclusive white occupation. I visited Jenin in 2003 shortly after it had been devastated by the IDF. I spoke to families whose houses had been raided, and vandalized by the IDF; I spoke to young and old who had been tortured by the IDF; and I visited hospitals to see those who had been wounded by the IDF. I saw and, on occasion, visited settlements; I saw most of the Wall and spoke to farmers whose lands had been seized for the construction of the Wall; and I traveled through the Jordan Valley viewing destroyed Bedouin camps and check points designed to serve the interests of the settlers.
A final comment based on my personal experience. There was an altruistic element to the apartheid regime, albeit motivated by the ideology of separate development, which aimed to make the Bantustans viable states. Although not in law obliged to do so, it built schools, hospitals and roads for black South Africans. It established industries in the Bantustans to provide employment for blacks. Israel even fails to do this for Palestinians. Although in law it is obliged to cater for the material needs of the occupied people, it leaves this all to foreign donors and international agencies. Israel practices the worst kind of colonialism in the OPT. Land and water are exploited by an aggressive settler community that has no interest in the welfare of the Palestinian people – with the blessing of the state of Israel.
John Dugard is a South African international lawyer who headed the Centre for Applied Legal Studies in Johannesburg during the Apartheid era. In 1995 he assisted in the drafting of the Bill of Rights in the South African Constitution. For seven years he was Special Rapporteur on the human rights situation in the Occupied Palestinian Territory to the UN Human Rights Council and Commission on Human Rights. This article originally appeared in the Autumn 2011 issue of Al-Majdal.
Welcome to MW John Dugard. Your observations are most interesting.
Apartheid is probably the best analogy to what the Israelis are doing in the WB, but they do have armies of lawyers splitting hairs and claiming that the OT and the Bantusans are not exactly congruent, hence it is false to call the Israeli occupation of the WB an apartheid situation. Your experience and observations will go far to refute that dissembling.
Of course it’s Apartheid, within and without Israel and it’s also Genocide.
JERUSALEM (Reuters) – Israel is forcing Palestinians out of East Jerusalem as part of a deliberate policy that might constitute a war crime, a prominent Israeli non-governmental organisation said on Monday, a charge rejected by Jerusalem’s mayor.
The Israeli Committee Against House Demolitions (ICAHD) has presented the United Nations with its findings and demanded an inquiry, saying Israel targeted Palestinians by demolishing homes, revoking residency and eroding quality of life.
“We are witnessing a process of ethnic displacement,” said Michael Sfard, a lawyer who helped draw up a 73-page report into the issue. “Israel is manifestly and seriously violating international law … and the motivation is demographic.”
Stephan Miller, a spokesman for Israel’s mayor of Jerusalem, Nir Barkat, dismissed the report. He said in a statement it was based on “misleading facts, blatant lies and political spin about Jerusalem, so I’m sure the UN will enjoy it.”
Israel seized East Jerusalem, including the Old City, in the 1967 Middle East war. It later annexed the area and surrounding West Bank villages into a Jerusalem municipality that it declared the united and eternal capital of Israel.
Palestinians want East Jerusalem as the capital of a future state and world powers have not recognised the annexation.
There are some 300,000 Palestinians residents in East Jerusalem, representing about 35 percent of the city’s total population, but ICAHD said that since Israel took control of largely Arab areas it had systematically prevented their development.
One third of land in East Jerusalem was taken for the construction of Jewish neighbourhoods, while only nine percent of the remaining land is legally available for housing. This has all been built on, making expansion impossible.
ICAHD said it was virtually impossible for Palestinians to obtain building permits to house their growing families.
“They have no other option than to leave East Jerusalem, build illegally or live in appalling, cramped conditions,” said Emily Schaeffer, who authored the report.
DEMOLITIONS AND RESIDENCY
Those who leave lose residency rights if they are gone for seven or more years and cannot return. Some 14,000 Palestinians lost their residency between 1967 and 2010, with half of those revocations taking place after 2006, ICAHD said.
Residency entitles you to Israeli health care and national insurance benefits.
Those who built houses illegally, lived in fear of having their property demolished and also faced hefty fines.
Israel demolished more than 2,000 homes in East Jerusalem since 1967, with 771 being pulled down between 2000-2011. A further 1,500 demolition orders are pending execution.
“Palestinians will de facto be deported from East Jerusalem, not by using guns or trucks, but by not allowing them to live a decent, normal life,” Sfard said.
Because the annexation of East Jerusalem was not recognised, Palestinians living there should be considered as a people under occupation, ICAHD said. As such, Israel had no right to strip them of residency or demolish their homes.
“There is a suspicion that a war crime is taking place and that is why an investigation should take place,” said Sfard
Is this your response to the Goldstone op-ed? or is it just a coincidence it was posted today.
LOL John Dugard. fits right in here @- MW.
It’s always an eyeopening experience to see the occupation through the eyes of an outsider, someone who witnessed the grim and vicious of it all.
After reading your great article, I am left with two questions about some of the information that piqued my interest.
1. You mentioned that after 2005, “I decided that I could not in good conscience refrain from making such comparisons.”
What happened in 2005 that changed your opinion, that pushed you to say to yourself, enough is enough?
2.
As you may know by now, within Israeli society there are groups on both the so-called right and left that call for the establishment of a Palestinian state, or for some form of Palestinian autonomy. And they espouse such opinions not because they are concerned about the welfare of Palestinians, but because they simply wish to push Palestinians behind the walls; as if to say, Take a couple of dollars from the US or your Arab oil brothers and go build yourself a lousy hospital or two, or a couple of schools. Just stay on your side of the fence and don’t bother us with your pesky rights, your stolen property from 1948 or your confiscated lands.
To a degree, that’s what the Oslo Accords accomplished. It is for that reason that self-styled ‘liberal’ Israelis support the two-state solution, but don’t mind taking over the house of a Palestinian if doing so happens to be convenient.
So were such sentiments dominant within the South African government that which implemented the programs you described? If you were to estimate or characterize South African society of the time, would you say there was more support for separate development? I’m simply trying to quantify or gauge the impetus that brought about such initiatives.
Thank you for your time and for your writing.