John Dugard, a South African international law professor and former anti-Apartheid activist, has taken strong if testy exception to Israel’s policies in the occupied Palestinian territory (oPt), as the UN Human Rights Council’s Special Rapporteur on the Human Rights Situation there.
So, it was a little surprising to see that the Jerusalem Post sought him out for an interview, which was published at the end of March.
And, it was a little more surprising to see Dugard being wary, and pulling his punches.
Here is the fully self-explanatory Jerusalem Post introduction to the interview: “Over the years, Dugard has become reviled by many in Israel who charge that he is biased in favor of the Palestinians and that his reports are unbalanced, unfair and prejudiced. His latest report is no exception. Indeed, many consider it his most biased and extreme. The Jerusalem Post asked Dugard in a telephone interview to explain some of the statements he made in that report”.
Here are a few excerpts from the Q & A:
“JPost Question: Why do you say that Israel cannot expect the end of violence as a precondition for ending the occupation? If the Palestinian leadership is effective enough to negotiate peace, should it not be effective enough to stop the terrorists?
John Dugard Answer: There are two answers. It’s quite clear that the Palestinian security forces lack the capacity to stop violence in the territories. That has been clear under both [former PLO head Yasser] Arafat and [PA President Mahmoud] Abbas. And so one cannot wait until that situation is achieved. But my second answer is that if one looks at other situations in which there has been conflict, negotiations started before the conflict came to an end. I could refer to the South African situation, for instance. We had intense violence during the early 1990s, when peace negotiations were taking place. This was one of the worst periods for urban terrorism in South Africa. The same applied in Namibia. But the end of violence was not set as a precondition for peace negotiations. In an ideal world, one would like to see that, but given the incapacity of the Palestinian Authority to end violence in Palestinian territory and given the fact that one needs to bring the violence to an end, I think it is necessary to negotiate, albeit in a state in which violence continues.
JPOst Question: Your report says, “in the present climate, it is easy for a state to justify its repressive measures as a response to terrorism – and to expect a sympathetic hearing. Israel exploits present international fear of terrorism to the full.” But do you not agree that the facts indicate that the repressive measures Israel has introduced in the past few years are a result of Palestinian violence aimed at it?
John Dugard Answer: I think one has to accept that any government in any situation of conflict will choose to call its opponents terrorists. Again, I’m sorry to return to the South African situation, but there, too, we had an anti-terrorism law, and opponents of the regime were criticized as terrorists. I was personally called a terrorist. Someone like Archbishop Tutu was labeled a terrorist. And in today’s climate, since 9/11, this has become worse. Governments do so repeatedly in order to get the support of the international community to condemn the acts of violence of their opponents. What I’m suggesting in the context of the Middle East is that, although some of the acts of the Palestinians, such as the firing of rockets into Sderot and Ashkelon are acts of terror, Israel is able to gain international sympathy for its responses in both the West Bank and Gaza in light of the war on terror. For instance, if one looks at the actions of the Israeli government in the West Bank, the construction of the wall in Palestinian territory, the increase in the number of settlements, checkpoints, roadblocks – all these actions are justified by Israel as part of the war against terror.
Quite frankly, I see the construction of the wall as part of an attempt on the part of Israel to enclose settlements within Israel. I think that some of the checkpoints are unnecessary and, of course there’s no justification for the expansion of settlements as an anti-terrorism measure. But nevertheless, Israel is able to get international sympathy for its actions because they are construed by many in the West as part of the war against terror.
JPost Question: You write that “the test for determining whether a territory is occupied under international law is effective control and not the permanent physical presence of the occupying power’s military forces in the territory in question.” From what I have been told by legal experts, there is no international precedent for the situation in Gaza. In your report, you provide facts to back up your argument. But it is easy to provide other facts to prove that the alleged occupation is ineffective – primarily the development of a military force by Hamas, and the import of heavy weapons which threaten to reach Israel’s most densely populated centers. Israel’s army of occupation, as you call it, is unable to prevent this.
John Dugard Answer: First of all, you suggest that opinion in Israel is united on the subject of whether or not Israel continues to occupy Gaza. But much of the scholarly writing in favor of the continued occupation has been done by Israeli scholars and if you look at the footnotes in my report, you will see that I do refer to Israeli writings and this is also the view expressed by many Israeli commentators. So, there is a vigorous and vibrant debate on the subject within Israel itself.
My second response is that “effective occupation” is a legal concept and one has to look at the extent to which the state exercises, or attempts to exercise, control over the territory, and I suggested that if one looked at the closure of Gaza’s borders, the control over air space and sea space, the control over the Palestinian population registry, the frequent military incursions into the territory, that Israel is ultimately in effective control. It has control over the territory. Gaza may be in a state of conflict but it is, in many respects, a prison and Israel has the key.
So despite the fact that there is opposition within Gaza, I think one must accept that Israel is in military occupation of the territory. If one looks at other cases of military occupation during the Second World War, for instance, Germany occupied western European countries and there was resistance in many of these countries. And so I don’t think the fact that there is resistance changes the nature of the occupation. In my view, it is a legal concept and Israel does meet the requirements for military occupation.
JPost Question: You compare the casualties on the Gaza side to those on the Israeli side. You seem to implying that the damage caused by Gaza terrorists is negligible in comparison to the damage inflicted on the Palestinians. But the people of Sderot and the surrounding area have been traumatized. The casualties in that sense are much higher. And the wider the range of terrorist rockets, the greater the physical and mental damage there will be.
John Dugard Answer: I certainly do not wish to minimize the terror to which the people of Sderot have been subjected. As my mandate doesn’t require me to go into it, I didn’t expand on it. But I have said categorically that the firing of rockets constitutes a war crime. And I’m aware of the traumatization of the people of Sderot and the impact it has had. So, if my report doesn’t express my condemnation sufficiently, I apologize”.
The full JPost interview with John Dugard can be read here .