Tjitske Lingsma

Profile | John Dugard: “The taboo has died, Israel commits genocide.”

Respected South African jurist John Dugard chose law as a weapon against apartheid and genocide. At an age when most people retire, he became UN Special Rapporteur on Palestine. “Meanwhile, racism in Israel has reached a level I have never seen in South Africa.” 

It is a grey Monday morning as the Peace Palace in The Hague gears up for a historic affair. At the gate, international media have set up their cameras. Expensive cars drive through the front yard to the steps, where ambassadors, diplomats and lawyers get out. It is February 19, 2024. The monumental building is off limits to journalists these days. Still, they manage to slip through the high door into the stately hall and corridors with inlaid marble floors and vaulted ceilings. There stands John Dugard (87), an unassuming figure, leaning lightly on his cane. On the lapel of his suit is a small red button: the Star of Jerusalem, a prestigious Palestinian award. Behind him, light falls through the stained-glass windows of the grand courtroom of the International Court of Justice.

“We worked through the weekend and connected the dots,” says Dugard, a lawyer and a member of the Palestinian delegation. The sessions organised by the International Court of Justice in the coming days are part of the proceedings that began more than a year ago, when the United Nations General Assembly adopted Resolution 77/247 by 87 votes on December 30, 2022. The UN member states asked the court to issue an advisory opinion on the legal consequences of Israel's violation of the Palestinian right to self-determination, particularly the occupation, settlements and annexation of Palestinian territory, demographic changes, and discriminatory legislation and measures against Palestinians. As many as 49 countries and three international organisations will give their views on the matter in the coming days. Never before have so many countries participated in hearings. Although the opinion the judges will give is not binding, it is of great significance for the UN’s highest legal body to give an opinion on Israel’s 57-year occupation of the Palestinian Territories and violations of international law.

Dugard takes a seat in the first row of benches for official delegations. Next to him sits the Palestinian ambassador to the Netherlands. “So, just putting on the wig,” Philippe Sands laughs, covering his balding head with grey fake curls. The renowned lawyer and author, many of whose relatives were murdered during the Holocaust, is among the top experts assisting the Palestinian government. Israel does not attend. “La Cour!” sounds loudly. Everyone stands up as the fifteen judges enter in lockstep.

***

In the kitchenette of his spacious apartment in The Hague, Dugard makes two cappuccinos. When he has served the coffee, with a bowl of cookies for the visitor, he takes a seat on the salmon-orange couch. A quiet, amiable man with grey-blue eyes, dressed in a light blue wool sweater and dark blue rib pants; underneath, socks with a striking red check. His smartphone is within reach.

Each day, Dugard and his Dutch wife Ietje start with the news. First Al Jazeera, then they switch to the BBC and Dutch news. “Those do cover the main issues, so viewers know what is happening in Gaza. They try to be balanced. But I think they lean toward a pro-Israel perspective,” Dugard observes. He emphasises that Israel suffered greatly during the Hamas attacks on October 7, which slaughtered 1,200 civilians, policemen, and soldiers. The fate of the kidnapped hostages is terrible. “But sometimes there is a suggestion among media that what Israel is doing now is therefore justified,” Dugard said in the calm tone that characterises him. Always keeping a straight face, barely wrinkled.

Israel has killed more than 38,000 Palestinians in the past eight months, including many children, women, aid workers, and journalists. More than 10,000 people are missing. The Israeli army has destroyed entire residential areas, infrastructure, hospitals, ambulances, schools, and universities. Thousands of Palestinians have been rounded up, suffering abuse and torture in detention. The Israeli government is accused of using hunger as a weapon against the Palestinian population in Gaza, who are denied food, water, healthcare, and other essentials for living. Adults and even children undergo surgeries and amputations without anaesthesia. “It's horrifying. Every day there is shocking news that is disturbing,” says Dugard, who was UN special rapporteur for the Palestinian territories.

Dugard, born in 1936, spent his early childhood in Healdtown, where his parents, who had come to South Africa as British teachers, taught black children. None other than Nelson Mandela was a student at this Methodist school. It was a rare place in South Africa where black children could receive higher education. Dugard himself went to a white school and had white friends. “Yet my environment was different from that of most white South Africans who grew up in a racist situation where blacks were treated as inferior beings. My parents were devout Christians. Never did I hear them make racist remarks. I grew up thinking blacks would be just like I was.”

He was 11 years old when the National Party won the election in 1948. South Africa became a brutal apartheid state, enshrining racial segregation in law. Whites enjoyed power and freedoms, while blacks and people of colour were denied basic rights – by force. During his teenage years, a fierce debate raged over taking away the voting rights of people of colour and the “defiance campaign” launched by leaders like Mandela in 1952 to protest the apartheid laws.

Dugard, who loved history and Latin, went to Stellenbosch University to study law. He immersed himself in Roman-Dutch law, which the Dutch had introduced during their colonisation and still has significance in South Africa today. “At the time, it was one of the most progressive legal systems in Europe,” he says. Added to that law were the apartheid laws that intervened deeply in the private sphere. It was even forbidden to have sex with someone of another race.

One time Dugard came home early. “There was a black woman standing outside the apartment where I lived. She asked: please, can you give me a ride home? She smelled of alcohol. It was clear that she too had been to a party. I thought: this is really dangerous. To take a black woman home, ten kilometres together in the car, in the early morning, is not wise. I took her away. But I was pretty anxious.”

Dugard chose to operate within the law, but he respected those who made a different choice.

Almost everywhere, “racial mixing” was prohibited, including hotels, restaurants, and theatres. “Except in the workplace, but there the good jobs were reserved for whites.” Parties like the ANC and the Communist Party were banned. Peaceful protests were brutally crushed, as in Sharpeville when police shot 69 people. “Mandela was a freedom fighter, who saw armed resistance as the very last option where everything had to be done to prevent innocent casualties. But he was seen as a terrorist by the regime.” Dugard himself chose to operate within the law, but he respected those who made a different choice. “I have white and black friends who were sent to prison for long periods of time. Not only because they had used violence, but also because they had participated in meetings of illegal organisations like the ANC. Of course, I visited them in prison,” he says.

Even as a young lawyer, Dugard defended civilians. “The threat of the death penalty was always present, because that was the mandatory punishment for crimes such as murder or robbery. Without extenuating circumstances, it was the end of the story. It was horrible to go to court and know that if you failed, that person would die,” he says.

***

A life takes one by surprise. In 1963, Dugard’s then-wife, with whom he had a daughter and a son, received a fellowship at Cambridge. It offered him the chance to continue his studies at the world-famous university. “Mostly traditional international law was taught there. But it was also the beginning of the development of the human rights system. I was greatly inspired by that. When I went back to South Africa, I saw it as my role to promote racial equality through international law.”

As an international lawyer, he spent more than a decade working for the independence of Namibia, a country occupied by South Africa. Although he had not wanted to become a teacher like his parents, in 1965 he became a lecturer in law at the predominantly white University of the Witwatersrand near Johannesburg. In 1978, he founded the Centre for Applied Legal Studies (CALS), which still exists at Wits. It was funded by the U.S. Ford Foundation, which felt South Africa needed a law firm committed to justice through litigation and research. Top lawyers did pro-bono cases there, including for political activists.

“We were very creative,” Dugard says. He derived arguments from the Universal Declaration of Human Rights and human rights treaties, which the violent apartheid system violated at all levels. “The judges made little objection to that. But the prosecutors  went bezerk when I referred to international treaties.” He also invoked Roman-Dutch law. “I found support there for freedom of speech and racial equality.” It was also an exciting time, he says as his eyes light up. “You had to think sharply.”

As the director of CALS, he had contact with other organisations fighting apartheid. Bishop Desmond Tutu asked him to become his legal adviser, after which they became close friends. “Tutu was the conscience of South Africa,” Dugard says. In 1990, President Frederik Willem de Klerk suddenly announced the end of apartheid. Dugard would co-write the civil rights section of the new 1996 constitution, which was “one of the most progressive in the world.” But he also realised that his role as a white man was partly played out. Disappointed that he was not elected to positions as a Constitutional Court judge and at the Human Rights Commission, Dugard turned to his love of international law. In 1997, he became the first South African to join the prestigious International Law Commission in Geneva, established by the UN to draft international treaties. He was now 62, and divorced: “I had no desire to retire.” He accepted the offer from Leiden University to teach international law.

The phone call he received from the UN Human Rights Council in 2000 gave a whole new twist. Would he want to join the Commission of Inquiry that had just been established to investigate Israeli violations of human rights and the law of war in the occupied Palestinian territories? Dugard was familiar with the conflict because he had visited Israel and Palestine several times since 1982. “It was also an issue that worried friends and students. Johannesburg was a very Jewish city. The Jewish community was the most progressive part of the white population. Also, most of the lawyers in Johannesburg were Jewish, as were the students at Wits,” says Dugard. Many Jewish friends and colleagues had fought in the Six Day War in 1967, during which Israel occupied the West Bank, East Jerusalem and Gaza.

Visiting Israel, Dugard felt he had seen it all before, this system of racial oppression.

During those past visits to Israel, he saw the situation “from a Jewish perspective.” He stayed in West Jerusalem, going to conferences with mostly Jewish participants. But the parallels with South Africa forced themselves on him. “I always felt I had seen it all before, this system of racial oppression,” he says. He would come to see it even more sharply as a member of the UN Commission of Inquiry. He met Palestinian leader Yasser Arafat, who was not the “militant terrorist” as media described him, but “a sensitive man” who listened and engaged in conversation.

It was Dugard’s mandate to scrutinise the Israeli occupation of the Palestinian territories – and that has remained his focus to this day. He spoke to Palestinian victims of excessive violence by the Israeli military. With his own eyes, he saw how bulldozers, then already an “essential weapon” of the Israeli army, had destroyed homes and agricultural land. The committee had to take cover when Israelis opened fire on Palestinians who had shelled an illegal settlement in Gaza. In their report, the committee members described the disproportionate number of Palestinian deaths and injuries, particularly involving children. They noted that fundamental rights of Palestinians, such as the rights to life, assembly, and a family life, were being violated. They also stated that Jewish settlements in the occupied territories were illegal. Although it was not their job, they also criticised Palestinian suicide bombings, lynching of Israeli reservists, and attacks on ambulances. At the same time, they stressed that Palestinians and Israelis wanted peace.

***

In the summer of 2001, Dugard was appointed UN special rapporteur for the Palestinian Territories. His wife Ietje thought he was actually too busy for this in addition to his other duties. “But I convinced her to join me on a mission to Palestine before making a decision. After seeing the situation on the ground, she said, ‘You can't quit this work as a rapporteur. It’s too important.’”

Dugard visited Palestine twice a year for research. With his team, he travelled to all corners – cities, villages, the countryside, and the mountains. “My predecessors were diplomats, who were very careful not to antagonise Israel. But I had a different background. I had learned to criticise the regime in South Africa. And I saw it as my job to continue that tradition.” He is silent for a moment, and then continues: “Which I did.”

He saw how Israel’s policies in the occupied territories reflected South African apartheid. “Only Israel is worse than South Africa,” he observes. As an occupying power, Israel applies a dual system. Palestinians are subject to Israeli military law, Israelis to civil law. While Palestinians are discriminated against when it comes to justice, freedom of movement, housing, water supply, and other basic freedoms, Israelis in the occupied territories enjoy preferential treatment on all fronts. Israeli security policy toward Palestinians consists of repression, murder, torture, and detention without trial. The fragmentation of Palestinian territory – the Jewish settlements now number 700,000 settlers – reminds Dugard of South Africa, where the black majority was driven out to bantustans covering a fraction of the country. “You even have separate roads for Israelis and Palestinians. You didn’t even have that in South Africa,” he says.

Dugard, however, is not a rough-and-tumble but a lawyer with strategic insight, and decided not to speak right away of apartheid, which is a crime against humanity. “I knew my credibility would suffer greatly and my reports would be ignored. As the end of my term approached, I declared in 2005 that Israel practices apartheid. Inevitably, my credibility suffered.”

He always remained connected to Palestine. “Israelis speak of ‘mowing the lawn.’ Every few years, Israel decides to curtail the population of Gaza. Then they kill a few thousand people.” These Israeli violent offensives represent another difference from his homeland. “South Africa never waged such wars against the black population.”

How does he view the fact that Israelis, after centuries of persecution and genocide, finally have their own country, but feel surrounded by enmity and live in existential fear? “I think the fear was greater among white South Africans. White South Africans were always afraid of the black majority,” he answers calmly.

What is hardly discussed is that Palestinians have the right to resist the violent occupation.

It is a sensitive issue. Among legal experts, the debate rages over whether Israel, as an occupying power, has the right to self-defence. What is hardly discussed, however, is that Palestinians have the right to resist the violent Israeli occupation. “But in doing so, they must abide by international law. For example, civilians should never be targeted,” he says. There is no question that Hamas and other Palestinian groups violated the law on October 7 and were guilty of war crimes with their attacks.

Dugard explains that the right to resistance is recognised for peoples defending themselves against colonial powers and the racist regimes of then South Africa and Rhodesia. “Resistance in militarily occupied countries such as France and the Netherlands during World War II is still highly praised. Palestinians suffer from both a racist colonial regime and military occupation. Why are they not considered in the same way as the oppressed in African colonies, South Africa during apartheid, and occupied France and the Netherlands?”

***

In his autobiography, Confronting Apartheid, Dugard describes how he and his wife were on holiday in San Francisco when they heard on December 27, 2008 that Israel was invading Gaza with massive air, sea, and ground attacks. Things had been relatively calm the months before. Operation Cast Lead was ostensibly a response to rocket attacks by Hamas and other groups. He argued that the operation may have been prepared since Hamas seized power in Gaza in 2007. Israel said its goal was to destroy the military infrastructure and smuggling tunnels of Palestinian groups.

Within days, Dugard received a phone call from the Arab League. On February 22, 2009, he and a team of top Western European experts went to Gaza on a fact-finding mission. Shocked, he saw the immense devastation, which reminded him of World War II. 3,000 homes had been pulverised; at least 11,000 had been damaged. Hospitals, schools, and mosques had been hit. As much as eighty percent of farmland and crops had been bulldozed flat. Israel had shelled residential areas with white phosphorus. 200,000 Palestinians had had to flee their homes. The survey team found that 1,400 Palestinian deaths, including at least 850 civilians (300 children and 110 women), had occurred. Over 5,000 Palestinians had been wounded. Looking back, it was like a dress rehearsal for the current war.

At the end of the mission, Dugard asked his team members: what crimes do you think were committed? “Unanimously, they said: genocide. I replied, ‘My God, you cannot accuse Israel of genocide.’” For a long time, they discussed the issue. Genocide requires proof of “intent”: the deliberate extermination of a people. “In the end, we decided to call it ‘collective punishment,’ as a war crime and crime against humanity.” The investigation team also ruled that Palestinian militants were guilty of war crimes for firing rockets from Gaza into southern Israel that killed four civilians and wounded 148.

“It’s a relief to say what it is: genocide.”

Dugard recalls the discussions at the Russell Tribunal, founded by great names as Jean-Paul Sartre, James Baldwin, and Simone de Beauvoir, as a court where civilians would administer justice. In 2014, the tribunal ruled on Israel’s Operation Protective Edge, which that year had lasted from July 8 to August 26. It was even more devastating than previous operations, with 2,200 Palestinians dead (1,492 civilians), over 10,000 wounded, even more destruction, and a third of the population forcibly displaced. Dugard was on the panel. “There was a lot of support for accusing Israel of genocide. But that was still so taboo. Again, I was trying to persuade people to refrain from that.” But in the last year, that has changed. “It a relief,” he says with a sigh, “to say what it is: Israel is committing genocide.”

Over the past two decades, Dugard saw the situation only get worse. “Just as the apartheid regime in South Africa became increasingly repressive, the same thing happened to Israel. Meanwhile, racism in Israel has reached a level I have never seen in South Africa. The Palestinians are considered the Untermensch.”

“Gaza today is today a land of despair,” he wrote in his 2018 autobiography. “Imprisoned” by Israel and Egypt, “battered” by Israeli military offensives, reduced to poverty by the economic blockade, without adequate medical care, where the occupying forces deny people safe drinking water and electricity, and the population is ruled by “a repressive Islamist regime.”

***

A major difference with South Africa is the attitude of the international community. “The South African apartheid regime was seen as a pariah state. It received some support from the UK and the US, which did make it clear they were against apartheid. Israel, however, is still presented by most Western countries as the only democracy in the Middle East and a bastion of freedom.”

For a long time, Dugard pondered the question of why Israel is not held in check. “I think Holocaust-guilt is one aspect. In the case of the Germans, it is so obvious that there is no debate about it. And the Dutch? Amsterdam must have been a bit like Johannesburg in the past. But during the war, too few people helped Jews survive.” He also notes “a sense of superiority” stemming from a “colonial mentality” toward Palestinians as indigenous people. “Israelis are seen as equals with a Biblical claim to the land, while Palestinians are considered inferior.”

There is another aspect that may explain why Israel receives preferential treatment. “Israelis are very adept at presenting criticism of Israel as anti-Semitism. People are quickly and easily called anti-Semites. And there is nothing worse for a person, especially if you are at the beginning of your career, to be accused of that. Probably you would be fired. It's a huge disadvantage to get that label.”

Dugard was heavily criticised. Some NGOs accused him of anti-Semitism, but not the Israeli government. “Maybe because it was somewhat known in Israel that I was close to the Jewish community in South Africa. Also, I have friends in Israel and good contacts with human rights organizations. But anyway, I wouldn’t take such an accusation seriously. Also, I am old enough not to be bothered with that.”

He did miss out on opportunities because he was seen as pro-Palestinian. He also received threats. “But in Apartheid South Africa it was much worse and death threats were very common. You got letters saying there was a price on your head, or phone calls. I shook it off,” he says, as if talking about raindrops. In 2012, he received the Golden Baobab, South Africa’s highest civilian award, for his commitment to human rights.

The screen of his smartphone lights up. “It's Liesbeth Zegveld,” he says, picking up. “First of all, my congratulations. Very well done,” Dugard tells the Dutch lawyer, who, like him, is a member of the advisory board of The Rights Forum, the expertise  centre on the Palestine/Israel issue set up by former Prime Minister Dries van Agt in The Netherlands. The Dutch court in The Hague has ruled on appeal that the Dutch government must stop exporting parts of F-35 fighter jets to Israel within a week. It is a major victory for Zegveld, Oxfam Novib, The Rights Forum, and PAX, who had brought the case. The Netherlands immediately appealed.

Messages come in continuously on Dugard’s phone. When he briefly checks, he sees that an Arabic TV station wants an interview with him. Dugard continues: “I think the end goal of Netanyahu and his cabinet is another Nakba. They want to get rid of the Palestinian people. The  offensive against Rafah, as I see it, is an attempt to drive people out of Gaza into Sinai. And then it’s Egypt’s problem.”

***

On a daily basis, Dugard is involved in the legal battle for justice for Palestinians, with more and more judicial bodies looking into the Israeli-Palestinian conflict. For some time, he has advised the Palestinian government on proceedings at the International Criminal Court (ICC) in The Hague, which prosecutes individuals suspected of genocide, crimes against humanity, war crimes, and aggression. After endless attempts, the Palestinians succeeded in becoming state members of the ICC in 2015, giving it jurisdiction over the West Bank, East Jerusalem, and Gaza.

“This means that the ICC has jurisdiction to prosecute both Israelis and Palestinians who commit international crimes within these territories,” Dugard says. Despite the accumulating evidence, the court remained silent for years. After the decision of the ICC pre-trial chamber that the court had jurisdiction, prosecutor Fatou Bensouda announced in March 2021 that she opened an investigation into Israel’s crimes. A few months later, her successor, Karim Khan, took office. “For over two years the Palestinian government and NGOs pressed Khan to initiate a prosecution. But he stubbornly refused to take action on Palestine, although he indicted the Russian president Putin,” Dugard says.

After the October 7 attacks, Khan visited the Rafah border crossing between Gaza and Egypt, and later Israel and the West Bank, and made impassioned speeches about justice. Only in May 2024 did Khan apply for the arrest of Israeli prime minister Benjamin Netanyahu, minister of defence Yoav Gallant, and three leaders of Hamas on the grounds that they had committed war crimes and crimes against humanity. “This was after the war in Gaza had been in progress for some seven months and the pressure for action on the part of the ICC became impossible to resist,” Dugard adds. The belief that Khan had failed to act earlier for fear of offending Western powers was confirmed when the decision to apply for arrest warrants met with strong condemnation from Western leaders, particularly US president Joe Biden and UK prime minister Rishi Sunak. This highlighted the determination of the West to protect Israel at all costs.

In addition, as many as three different cases on the Israeli-Palestinian conflict are pending at the International Court of Justice in The Hague, which administers justice in disputes between states. During the February hearings on Israel’s violation of the Palestinian right to self-determination, virtually all government delegations came out with scathing criticism of Israel as a brutal occupier who commits crimes. (Back in 2004, the International Court of Justice ruled that not only the wall that Israel built but also the Jewish settlements are illegal.) The Netherlands came to the sessions with a curious legal argument in which the words Israel and Palestine did not even appear. “It was as if they were giving students a general lecture on international law. In itself, international law is on the side of the Palestinians, but the Netherlands did not draw that conclusion,” Dugard argues. The handful of countries such as the US and UK that stood up for Israel and even asked the court to refrain from giving an advisory opinion were isolated.

The second case pending at the ICJ was brought by South Africa, which filed a complaint against Israel on December 29, 2023 for violating the Genocide Convention. Dressed in a red gown with pink trim, Dugard was one of the experts on the South African delegation addressing the judges at the hearing on January 11, 2024. “Many people in the West find it abhorrent that Israel is accused of genocide,” Dugard says. But the taboo has disappeared. “Israel, too, can be charged with genocide.” It could take years for the court to make a final ruling on that. But South Africa had simultaneously filed a request for interim measures to stop the genocide and extermination of Palestinians.

Until the last minute, Dugard had worried about what the court would decide. “When judges have a difficult political issue before them, they can let the case fall apart on a procedural point.” He was nervous when the judges ruled on January 26. “But the moment the president of the court started speaking, I knew we had won. Because I know her. Her voice sounded decisive. I could see she had a story to tell,” Dugard smiles.

The International Court of Justice found that it is “plausible” that Israel is committing genocide and announced a series of interim measures, ordering Israel to make every effort to prevent genocidal crimes. Israel must also punish those who call for genocide and provide basic services and humanitarian aid acutely to end the life-threatening situation faced by Palestinians.

“We were very happy with the decision. Many people had hoped the court would call for a ceasefire, but that was too much to expect. Yet the ruling actually came down to that,” Dugard says with relief. Since then, South Africa has asked the court three more times to take additional interim measures because of the extreme urgency. On March 28, the judges found that “catastrophic living conditions” in Gaza had further deteriorated and that there was famine. Among other things, the court demanded that Israel allow in “unhindered” the “urgently needed basic services”, humanitarian assistance, and medical supplies and care. Meanwhile, Nicaragua, Colombia, Libya, Mexico, and Palestine asked the court to be allowed to join the case.

On May 24, the International Court of Justice again decided to impose additional provisional measures stating that Israel “must immediately halt its military offensive” and other actions in Rafah; has to give “unimpeded access” to the Gaza Strip of any investigative or fact-finding commission of the United Nations to investigate allegations of genocide; and keep the Rafah crossing open to allow “unhindered provision at scale of urgently needed basic services and humanitarian assistance” to Gaza.

The third case at the International Court of Justice was brought by Nicaragua against Germany on March 1, 2024. The government in Berlin is accused of facilitating genocide in Palestine through its military, political, and financial aid to Israel, as well as by halting German aid to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) following unsubstantiated Israeli claims that 12 employees of the UN agency were involved in the October 7 attacks.

However, the court on April 30 rejected the interim measures requested by Nicaragua. Germany need not stop military and other aid to Israel. At the same time, the judges stressed the international legal duty of all states to prevent war crimes and genocide from being committed with the weapons they supply during a conflict. The judges also reiterated they remain “deeply concerned” about the situation in Gaza and underscored the provisional measures they previously promulgated. They are keeping the Nicaraguan complaint against Germany pending. 

“Increasingly, international law is being invoked to resolve the Israeli-Palestinian conflict before international and national courts,” Dugard says. “Surprisingly, many Western states, especially the US and UK, take offence at this. But it is the only way to secure a peaceful settlement. There can be no peace without justice.”

This article was first published in Dutch by De Groene Amsterdammer. © Tjitske Lingsma