John Dugard: The world has no judicial remedy to hold Israel accountable – hence the need for the Russell Tribunal

by Prof John Dugard

MEMO – Middle East Monitor

1 November 2011

 

In November 2011 the Russell Tribunal on Palestine will hold a session in

Cape Town on the question of whether or not Israel is guilty of committing

the international crime of apartheid in its treatment of the Palestinians. I

have agreed to testify before the Tribunal. In this article I will explain

why I believe that the Russell Tribunal has a role to play in advancing

accountability in the Middle East. I will also describe the nature of my

testimony.

Israel has violated many fundamental rules of international law. It has

seized Palestinian land by constructing settlements in the occupied West

Bank and East Jerusalem, and by building a security Wall within Palestinian

territory. It has violated the basic human rights of Palestinians through a

repressive regime of occupation which disregards the rules contained in

international human rights covenants and international humanitarian law

instruments. It has refused to recognise its responsibility for several

million Palestinian refugees in the West Bank, Gaza Strip and the diaspora.

There is, however, no international court of law capable of assessing

Israel’s responsibility or holding it accountable for its wrongs. The

International Court of Justice has given an excellent advisory opinion on

the subject but the United Nations is powerless to implement it in the face

of US opposition. The International Criminal Court has been requested to

investigate Israel’s conduct in the course of Operation Cast Lead but for

nearly three years the prosecutor of the ICC has refused to respond to this

request – probably because of US and EU opposition. Domestic courts have

been precluded from holding Israeli politicians and soldiers accountable for

their crimes in the exercise of universal jurisdiction by government

intervention. There is, therefore, no competent court of law which is able

to pronounce on Israel’s conduct or to hold it accountable.

International public opinion, outraged at the failure to hold Israel

accountable for its crimes, therefore has no available judicial remedy. This

is where the Russell Tribunal for Palestine comes in. It seeks to give

expression to international public opinion by examining Israel’s actions

through the medium of a process resembling that of a court of law. Witnesses

testify on the illegality of Israel’s conduct before a jury of distinguished

persons representing public opinion in many countries.

The Cape Town session of the Russell Tribunal will focus on the question of

whether or not Israel’s policies and practices in the Occupied Palestinian

Territory constitute the crime of apartheid within the meaning of the 1973

International Convention on the Suppression and Punishment of the Crime of

Apartheid. Lawyers will present arguments about the scope of this Convention

and witnesses will testify about apartheid in South Africa and Israel’s

practices in the occupied territory. Comparisons will be made. Resemblances

will be examined.

My testimony will focus on resemblances between the South African and

Israeli systems based on my personal knowledge and experience of apartheid

and Israel’s conduct in occupied Palestine. I will make no attempt to

compare apartheid with the treatment of Arab Israelis within Israel itself.

I claim no expertise on this subject.

In my testimony I will first establish my expertise and then turn to what I

believe to be resemblances or similarities in the two systems.

My Life in South Africa

 

I spent most of my adult life in South Africa as a witness to apartheid. I

opposed apartheid, as an ordinary citizen, advocate, scholar and NGO leader.

I had wide experience and knowledge of the three pillars of the apartheid

state – racial discrimination, repression and territorial fragmentation.

Writing prolifically on apartheid, I published a major work on the subject –

Human Rights and the South African Legal Order (1978) – which provides the

most comprehensive account of the apartheid legal system published to-date.

In the book I examined the injustices of apartheid and compared apartheid

with international human rights standards.

I participated actively in the work of NGOs opposed to apartheid, such as

the South African Institute of Race Relations and Lawyers for Human Rights.

From 1978 to 1990 I was Director of the Centre for Applied Legal Studies

(CALS) attached to the University of the Witwatersrand, which engaged in

advocacy and litigation in the field of human rights. As an advocate I

represented famous opponents of apartheid, such as Robert Sobukwe and

Archbishop Desmond Tutu, and the unknown victims of the system; I lead

lawyers’ campaigns against the eviction of black persons from neighbourhoods

set aside for exclusive white occupation by the Group Areas Act, and against

the notorious “pass laws”, which made it an offence for blacks to be in

so-called “white areas” without the correct documentation. These campaigns

took the form of free legal defence 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 my

writings, in the courts and on public platforms. If I was an expert on

anything, it was on the law of apartheid.

My association with Israel/Palestine

 

I have visited Israel and Palestine regularly after 1982. In 1984 I made a

comparative study of Israeli and South African attitudes towards

international law and in 1988 I participated in a conference organised by Al

Haq in East Jerusalem during the First Intifada. The Quakers asked me in

1992 to review a legal aid project in East Jerusalem during which I

travelled widely in the West Bank and Gaza Strip.

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 Occupied Palestinian Territory (OPT). In this capacity I

visited the OPT twice a year and reported to the Commission and the Third

Committee of the General Assembly both in writing and orally. My 2003

report, which alerted the international community to Israel’s de facto

annexation of Palestinian land under the guise of the “Wall”, led to the

request for an advisory opinion by the International Court of Justice and

was cited extensively by the Court in its 2004 Advisory Opinion. My mandate

expired in 2008. In February 2009, however, I led 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 Israel’s

“Operation Cast Lead” against Gaza.

From my first visit to Israel/Palestine I was struck by the similarities

between apartheid in South Africa, and the practices and policies of Israel

in the Occupied Palestinian Territory. 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 they 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.

Personal Observations

 

Of course the apartheid and occupation regimes are very different in that

apartheid South Africa practised discrimination against its own people; it

sought to fragment the country into white South Africa and black Bantustans

in order to avoid having to extend the franchise to black South Africans.

Its security laws were used to repress opposition to apartheid brutally.

Israel, on the other hand, is an occupying power which controls a foreign

territory and its people under a regime the nature of which is recognised by

international humanitarian law as one of belligerent occupation. In

practice, though, there is little difference. Both regimes were/are

characterised by discrimination, repression and territorial fragmentation.

The main difference is that the apartheid regime was more honest; apartheid

laws were legislated openly in Parliament and were clear for all to see,

whereas the laws governing Palestinians in the OPT are contained largely in

obscure military decrees and inherited emergency regulations that are

virtually inaccessible. Crude, racist signs indicated which amenities were

reserved for exclusive white use in apartheid South Africa. In the OPT there

are no such signs but the Israel Defence Forces (IDF) ensure the exclusive

rights of settlers to many areas. Nowhere is this more apparent than in the

case of “road apartheid”. The good roads in the West Bank are reserved for

exclusive settler use with no sign to indicate such reservation, but the IDF

ensures that Palestinians do not use these highways. (Incidentally, it

should be stressed that apartheid in South Africa never extended to roads!)

In my work as Commissioner (2001) and Special Rapporteur (2001 – 2008) I saw

every aspect of the occupation of the OPT; my position was very privileged.

Driven and guided by a Palestinian driver and accompanied by Palestinian

community leaders and UN experts I travelled widely in the West Bank and

Gaza, visiting every town, many villages, farms, schools, hospitals,

universities and factories. Over the years I also visited settlements such

as Ariel, Ma’ale Adummim, Betar Illit and Kirya Arba, which resemble the

South African luxury suburbs of Sandton and Constantia with their fine

homes, supermarkets, schools and hospitals.

I witnessed the humiliating check points, with long lines of Palestinians

waiting patiently in the sun and rain for IDF soldiers to scrutinise their

travel documents. Inevitably this brought back memories of the long lines in

the “pass offices” of apartheid and of the treatment of black South Africans

by police officers and bureaucrats. I visited houses that had been destroyed

by the IDF for “administrative reasons” (that is, they were built without a

permit from the Israeli occupying power, when permits to build are virtually

never granted). Memories of houses demolished in apartheid South Africa in

once “black areas” set aside for exclusive white occupation came flooding

back. I visited most of the Wall that stretches down the west side of

Palestine and I visited farms that had been confiscated by the construction

of the Wall and spoke to farmers who had lost their livelihoods. I also

spoke to factory owners whose premises had been destroyed by the IDF as

“collateral damage” in IDF raids, and fishermen in Gaza not permitted to

fish for “security” reasons.

In 2003, I visited Jenin, shortly after it had been devastated by the IDF,

and saw houses bulldozed to the ground. I saw the damage caused to the

infrastructure of Rafah by Caterpillar bulldozers built especially for the

purpose of destroying roads and houses; I spoke to families in a refugee

camp near Nablus whose houses had been raided and vandalised by Israeli

soldiers using vicious dogs; 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 visited schools that had been rampaged through by the IDF with crude

anti-Palestinian graffiti written on the walls; I spoke to traumatised

children whose friends had been killed by random IDF fire and who were being

counselled by psychologists; I was exposed to assaults by settlers in Hebron

and I visited communities south of Hebron which lived in fear of the same

illegal settlers. I saw olive trees destroyed by settlers and travelled

through the Jordan Valley viewing destroyed Bedouin camps (which again

reminded me of the destruction of “black spots” in apartheid South Africa)

and check points designed to serve the interests of the settlers. I met with

members of the IDF at check points and “border” crossings and experienced a

strong sense of déjà vu; I had seen their sort before in a previous life.

When visiting Palestine, I stayed in occupied East Jerusalem. There I saw

Israeli settlements in the heart of the Old City and visited homes that had

been destroyed by Israel or designated for destruction (for example, in

Silwan). I spoke to families that had been separated by the administrative

mysteries of the Israeli occupation which allowed some Palestinians to live

in Jerusalem but confined others to the West Bank. I recalled the laws of

apartheid which separated families in this way.

I had first-hand experience of the “territorial fragmentation” of Palestine

– that is seizure, confiscation and appropriation of Palestinian land by

Israel. I explored the land de facto annexed by Israel between the Green

Line (the generally-accepted border of 1948/9 between Israel and Palestine)

and the Wall; I saw and visited the sprawling settlements which have seized

wide tracts of Palestinian land in the West Bank and East Jerusalem; and I

saw the large areas of land declared as Israeli military zones in the Jordan

Valley and elsewhere.

All I will say about my investigations in Gaza in February 2009, shortly

after Operation Cast Lead, is that I believe that the Gaza Strip remains

occupied and Operation Cast Lead was a policing operation designed to punish

collectively a rebellious occupied people – a view shared by the so-called

Goldstone Report commissioned by the Human Rights Council. I was appalled

and saddened by what I saw. I have no doubt that it was an act of collective

punishment in which the IDF intentionally attacked civilians and civilian

targets. The evidence provided no other explanation.

A final comment based on my personal experience. There was a positive

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, the apartheid regime built schools,

hospitals and good roads for black South Africans. It established industries

in the Bantustans to provide employment for blacks. Israel fails even to do

this for the Palestinians. Although in law, under the 1949 Geneva

Conventions, it is obliged to cater for the material needs of the occupied

people, it leaves this responsibility to foreign donors and international

agencies. Israel practises 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; all with the blessing of

the government of the state of Israel.

Israel’s practices in the OPT do resemble those of apartheid. Although there

are differences, these differences are outweighed by the similarities. Which

is/was worse: apartheid or Israel’s occupation of Palestine? It would be

wrong for me to judge. As a white South African I could not share the full

pain and humiliation of apartheid with my fellow black South Africans. I

understood their anger and frustration and I tried to identify with it and

oppose the system which relegated them to the status of sub-humans.

Likewise, I cannot fully feel the pain and humiliation that Palestinians

experience under Israel’s occupation. But I look at the system to which they

are subjected and I feel the same sense of anger that I experienced in

apartheid South Africa.

At the Russell Tribunal lawyers and jurors will examine, debate and consider

the question of whether or not Israel’s conduct in the OPT falls within the

conduct criminalised by the 1973 International Convention on the Suppression

and Punishment of the Crime of Apartheid. This is important for determining

Israel’s accountability. But, for me, there is a bigger question that

confronts the moral judgment of the people of the world, and particularly

those of the West. How can those – Jews and gentiles – who so vigorously

opposed apartheid on moral grounds refuse to oppose a similar system imposed

by Israel on the Palestinian people?

John Duggard is Chair of Independent Fact-Finding Committee on Gaza; and

Former Special Rapporteur to the Human Rights Council on Human Rights in

Palestine.

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