John Dugard Research Articles

Confronting Apartheid: A Personal History of South Africa, Namibia and Palestine. By John Dugard. Auckland Park, South Africa: Jacana Media, 2018. Pp. 312. Index.

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Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

I accept the authors' premise in their article entitled Apartheid, International Law, and the Occupied Palestinian Territory that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel�s actions cannot be considered a basis for the crime of apartheid.

Chantal Meloni and Gianni Tognoni (eds). Is There a Court for Gaza? A Test Bench for International Justice

Is There a Court for Gaza? is an edited collection of essays that grew out of a conference held in Rome in May 2009. The book has five parts and a foreword written by Professor William Schabas. Part I contains selected excerpts from the conference in Rome. Part II consists of articles on the Goldstone Report and Part III addresses the debate on Palestinian statehood with regard to the Article 12(3) declaration lodged at the International Criminal Court (ICC) in January 2009. Part IV looks at the Russell Tribunal for Palestine and Part V ends with some concluding remarks by John Dugard, the former UN Special Rapporteur for Human Rights in the Occupied Palestinian Territory. This collection of articles stands out from most books on the Israeli�Palestinian conflict because it is concerned with seeking justice for Israeli and Palestinian victims of human rights violations at an international court which has the ability to enforce its judgments against individuals. This is a new development in this long-running conflict, which has seen many high-ranking officials on both sides accused of committing war crimes and crimes against humanity escape the long arm of the law. With the exception of the advisory opinion of the International Court of Justice (ICJ) on the wall in 2004, for much of the conflict's history infringements of international law have been largely left to political institutions such as the UN Security Council (where the US has usually exercised its veto), the UN General Assembly, and the Human Rights Council in Geneva. This review focuses on Parts II and III of the book which contain academic commentary on the Goldstone Report, and the controversy over whether Palestine was a state at the time when its Minister of Justice lodged a declaration under Article 12(3) of the Rome Statute �

ABALONE POACHING: A PHILOSOPHICAL APPROACH

The question that I raise is whether one’s judgment, in other words, knowing the difference between right and wrong, can be clouded by monetary rewards, especially with regard to criminal activity. I take a philosophical approach with specific focus on the environmental concern of abalone poaching. I draw parallels and theoretical answers from Karl E Klare’s ‘Legal culture and transformative constitutionalism’, James Boyd White’s ‘Justice in tension: an expression of law and the legal mind’, John Dugard’s ‘The judicial process, positivism and civil liberty’ and the theories of judgment of Hannah Arendt. Environmental crime is a rising epidemic, especially in South Africa. I argue that not enough attention is paid to such crimes. Sensational crimes seem to have an increased popularity in the press and environmental crimes seem to go deprioritised. There appears to be very few viable solutions for crimes that yield great economic returns. In the mind of the offender, the motivation of great economic returns can be said to override the sense of morality or judgment.

John Dugard’s Legacy to Human Rights Activism and Litigation

The first day of the conference was dedicated to John Dugard's work and legacy in human rights law in South Africa. This day addressed John's extensive academic contributions, as well as his more practical and strategic interventions in relation to human rights advocacy and litigation. One of the highlights of the day was a panel of past and present human rights lawyers and advocates, all of whom had had been influenced and inspired by John both directly and indirectly. Gilbert Marcus and Halton Cheadle both worked at the Centre for Applied Legal Studies (CALS), founded by John Dugard at the Wits School of Law in 1978. Jody Kollapen, outgoing chairperson of the SA Human Rights Commission, met John as a young law student. Their contributions attest to John's enormous influence on anti-apartheid legal work in the 1980s and beyond. Fatima Hassan, Stuart Wilson and Jackie Dugard all worked at CALS after John's departure in 1979, and speak to its continuing tradition of human rights work, and John's legacy. The panel was chaired by Dennis Davis, who succeeded John Dugard as CALS director in 1979.

Palestine as a Matter of International Community Concern: John Dugard’s Work as Special Rapporteur

This article reviews Professor John Dugard’s contribution as Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories, aiming to show how a sound international law analysis is essential for an understanding of the problem of Palestine and for countering efforts to shift perceptions from one of occupation in which the occupying power has legal and moral constraints to one of a state of belligerency in the context of a ‘war on terror’. John Dugard’s constantly reiterated position that Palestine is a matter of concern for the international community as a whole then leads to an examination of the international status of Palestine and to the responsibility of the United Nations, as well as that of all states, flowing from the erga omnes obligations and peremptory norms involved. This is done in light of the International Court of Justice’s quasi-unanimous Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory handed down in 2004 in which the Court has demonstrated how the political aspects of the Palestinian problem are tightly intertwined with its legal dimension.

The Warning Voice from Heidelberg: Radbruch, Dugard and the Prosecution of State Injustice

This article explores the relationship between John Dugard and Gustav Radbruch. Drawing on the legal philosophy of Gustav Radbruch and John Dugard’s work on international criminal law the article addresses the complex question of whether retroactive punishment is legally and morally justifiable. The article discusses Dugard’s views on the question of retroactivity in three contexts: firstly, in his opinion on the legality of extraterritorial prosecution of torture in the Bouterse case; secondly, through his criticism of the Constitutional Court’s decision in Azapo; and thirdly, by his support for ius cogens norms as expressed in his separate opinion in the Congo v Rwanda decision. The article concludes that Dugard’s support for retroactive punishment in the specific context of serious international crimes is another example of his lifelong dedication to ‘higher law’ and his faith in the normative evolution of international law.

John Dugard and the Continuing Struggle for International Human Rights

This article focuses on John Dugard’s important and continuing work done in the ongoing struggle for international human rights. It considers two apparently unrelated areas of Dugard’s work. The first is his contribution to the field of diplomatic protection; the second is his work in the field of international criminal law. The author demonstrates that they are indeed related, at least insofar as they are both fields in which Professor Dugard’s real concern – a concern for the rights of the individual – is on open display. They are also both fields in which Professor Dugard has excelled – indeed led – at an international level with work in Geneva, Cambridge and Leiden. The article demonstrates how, in both the fields of diplomatic protection and international criminal justice, Professor Dugard’s work has most appropriately come to resonate at a professional and personal level back home in South Africa.

Keynote Address: A tribute to John Dugard — teacher, academic colleague, outstanding jurist and friend

John Dugard needs no introduction. So why do I stand here? I have been thinking about that for some weeks, and have concluded that it is not to introduce John but to pay tribute to him, as a teacher, an academic colleague, an outstanding jurist and a friend. John, over some 50 years, has had an enormous impact in South Africa and internationally in the field of international law, and just as great an impact, in South Africa and elsewhere, in bringing human rights to the fore.

Editors’ Introduction to Special Issue. ‘John Dugard: A Life in Pursuit of Higher Law’

This edition of the South African Journal on Human Rights is dedicated to one of its founders, and South Africa's leading human rights and international law scholar, Professor John Dugard. Its dual themes of 'human rights and social justice in South Africa' and 'international law' reflect Dugard's character as both irretrievably South African and intensely international in his way of thinking and his work.

Dugard’s Moral Critique of Apartheid Judges: Lessons for Today

John Dugard became a professor of law at the University of the Witwatersrand (Wits) School of Law exactly four decades ago, in 1969. It was a brave appointment - an academic lawyer of unflinchingly liberal commitment at a time of acute illiberal oppression. It was a promotion that was to garner Wits no favour with the authorities, for Dugard soon showed that his concept of professorial research did not involve quietly burrowing away in the Wits law library.

Word of Tribute to Professor John Dugard by Professor Nico Schrijver, his Successor at Leiden University

"Word of Tribute to Professor John Dugard by Professor Nico Schrijver, his Successor at Leiden University." South African Journal on Human Rights, 26(2), pp. 354–355

Legal Realism, Transformation and the Legacy of Dugard

John Dugard’s courageous inaugural lecture drew on American realism, modern natural law and South Africa’s liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law – especially under apartheid – this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another.

A4. UN Special Rapporteur on Human Rights John Dugard, Comments of the Status of Human Rights in Palestine, Geneva, 21 January 2008 (excerpts).

A4. UN Special Rapporteur on Human Rights John Dugard, Comments of the Status of Human Rights in Palestine, Geneva, 21 January 2008 (excerpts).

A1. John Dugard, Report of the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Occupied Territories, Geneva, 17 August 2007 (excerpts)

A1. John Dugard, Report of the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Occupied Territories, Geneva, 17 August 2007 (excerpts)

State Recognition: Admission (Im)Possible

This article focuses on state recognition in the European context and on the admission of states to the Council of Europe after the end of the Cold War. It argues that two global trends identified by John Dugard in the 1980s have continued since then: a common approach to state recognition has been adopted and the criteria for state recognition have increasingly been given normative content. This reflects that the constitutive theory of state recognition continued to be popular. The two trends have not automatically resulted in a more legal approach to the issues, as the case study of Bosnia and Herzegovina illustrates.

Professor John Dugard: A South African Perspective

This article considers the work of John Dugard in the field of human rights and international law and the impact thereof on the South African legal landscape. After tracing the importance of Dugard's early work in South Africa in the fields of legal philosophy, human rights, and international law, the article turns to consider the later achievements in Dugard's prestigious career. The author highlights the numerous cases in which Dugard appeared as counsel before the South African courts, and considers the impact that Dugard had on the drafting of the South African Constitution in relation to international law and its use in interpreting the South African Bill of Rights. The final section of the article considers the shameful failure of the South African government to support Dugard in his bid to be appointed as a judge of the International Court of Justice. The author concludes that notwithstanding the fact that the government has not accorded him the recognition he deserves, Dugard's pioneering human rights work continues unabated in his various positions, including in his role as the UN Special Rapporteur on human rights abuses in occupied Palestine.

John Dugard's Contribution to the Topic of Diplomatic Protection

An overview of the Draft Articles on Diplomatic Protection is followed by an assessment of the role of the Special Rapporteur, Professor John Dugard. It is concluded that the Special Rapporteur played a crucial role in the Commission's achievement on the topic.

Editors' Introduction: John Dugard and the Protection of the Individual in International Law

This special issue of the Leiden Journal of International Law is presented as a tribute to John Dugard, a grand international lawyer of our time. It is a collection of essays written by former students, colleagues, and friends, who have had the privilege of working with him over the years.

Israel's Settlement-Policy Stumbling-Block in the Middle East Peace Process

According to Israel's Guide to the Mideast Peace Process, charges regarding the illegality of Israeli settlements in the 1967 Occupied Palestinian Territory (OPT) have no foundation in international law. Peace efforts between Israel and Palestine will have no chance of success as long as Israel uses its prolonged military occupation to promote and protect its annexation-in-disguise of the West Bank and East Jerusalem. John Dugard has passed on this hard truth consistently as Special Rapporteur on the situation of human rights in the OPT. The international community should take the same hard line towards the Guide as it has done towards the Hamas Charter. If it wants to establish a just and lasting peace in the Middle East, it should not allow Israel to bend the truth any more in respect of the legality of the Israeli settlements in the OPT as Hamas has done in respect of the illegality of Israel.