As far as I know there is no one on the planet who is more juridically authoritative and existentially informed about the policies, practices, and politics of apartheid than John Dugard. From the age of eleven, when his family lived in a Black African tribal region of South Africa because his father was appointed the chief inspector of schools in the Eastern Cape until today, Dugard's professional life has been dominated by experiencing and non-violently opposing apartheid as a lawyer, jurist, and international expert in three countries—South Africa, South West Africa/Namibia, and occupied Palestine. On the basis of such deep and extended experience, this book deserves to be required reading for anyone concerned with the roles played by law and lawyers in the leading struggles against racism, and specifically apartheid, during the last one hundred years. Yet it is much more than this.

This superbly written book is an enlightening read from two quite different angles. First, Confronting Apartheid can be read as an autobiographical account of the long, exemplary career of Dugard as he evolved to become the leading scholar/practitioner of international law and human rights law in South Africa, as well as an internationally highly respected and influential academic specialist in these fields. This prominence has made Dugard a natural choice for decades to head international commissions of inquiry, to be selected as a UN special rapporteur on human rights, to be three times elected to five-year terms on the International Law Commission, to be appointed judge ad hoc at the International Court of Justice, and to lead several notable civil society initiatives devoted to the protection of human rights in South Africa. Despite the focus of the book and Dugard's career on apartheid, Dugard mentions in passing many additional facets of his remarkable ongoing career now in its sixth decade that touched on a wide range of issues bearing on the development of international law and the advancement of a variety of human rights concerns. Few international lawyers have compiled such an impressive record of professional versatility in the service of knowledge, justice, and the public good.

Dugard enjoyed a distinguished law career in South Africa as well as in international settings where he came to be widely appreciated as a lucid and influential participant in the global dialogue on human rights, and a respected expert entrusted with often delicate diplomatic undertakings of the UN system. Dugard describes these many activities in the course of narrating his life in a calm, yet self-assured manner that leads this reader to come away with a single overriding impression—“a life well spent.” Perhaps, one dividend of this autobiographical exposition of Dugard's professional life is to give law students and young lawyers a model of how to craft a professional career in law without losing touch with the ethics of compassion and service to the public good. Dugard tells us that his decision to go to law school was not driven by lofty motives. His own words are both an honest reflection on his past and his self-ironic modesty about his life choices: “I still find it difficult to understand why I chose to study law. Probably it was because I realized even then that I needed a qualification for a profession that might allow me to earn a living” (p. 8).

Confronting Apartheid can also be read as an extremely thoughtful and documented impersonal account of how law can serve as a vehicle by which to mitigate and challenge injustice in the formally constitutional structure that existed in apartheid South Africa, mandate South West Africa, and Israeli-occupied Palestine. In these differing national settings, law functions as the one permissible, although limited and somewhat contested, site of struggle that not only lays down the norms that frame the legal order but also by its constitutionalist pretensions of legitimacy provides an arena by which to mount opposition, admittedly within rather narrow limits, to the implementation of such an oppressive framework. With impressive rigor, Dugard manages to show how this dynamic operated in illuminating detail, especially in his comprehensive exposition of how apartheid worked in South Africa. By depicting the legal order of South African apartheid in separate chapters relating to tribal Bantustans, race discrimination, security laws and repression, police practices, reliance on the death penalty, reliance on censorship, restrictions on mobility, compliant role of the judiciary, and internal constitutional debate, Dugard gives us a valuable operational overview of how apartheid as a regime of racial domination was legally implemented by the procedures and practices of the government. While focusing on law and lawyering, Dugard takes note of the complementary coercive sides of apartheid by his discussion of the deployment of the government's elaborate police, intelligence, and paramilitary capabilities in the course of imposing apartheid policies on the population, including harsh treatment of opponents.

While relying on law's oppositional potential, Dugard is equally sensitive to the role of law in sustaining a morally and politically illegitimate governmental process. Indeed, Dugard's life's struggle and professional career unfolded in relation to this lawfare dialectic, whether he was lawyering and teaching in South Africa, engaged in scholarly interpretations of developments in Namibia, or handling a sensitive mandate in occupied Palestine on behalf of the UN Human Rights Council.

The emphasis on South African apartheid reflects Dugard's life experience, resulting in an unequal page count given to three embodiments of apartheid that are addressed in the book: Namibia (formerly South West Africa) is treated in eighteen pages; Palestine in eighty-eight pages; and South Africa in 129 pages. At the same time, each instance of apartheid is presented in ways that accurately depict its distinctiveness in the wider legal narrative of national struggles for human rights and international campaigns against racism. For instance, the initial international law challenges to apartheid were, not surprisingly, directed at the extension of apartheid to South West Africa (now Namibia), a territory placed under the Mandates System in the Versailles peace diplomacy after World War I. South Africa was designated as the mandatory power with unrestricted administrative authority over the country that amounted to total control except for reporting obligations to the League of Nations. True, the mandate system technically considered South Africa's administering role as temporary as it was tied to an obligation of the mandatory power to prepare the population for self-government “as a ‘sacred trust of civilization,’” but no deadline was given (p. 2). Considering the post-1945 normative atmosphere, which included a growing ambivalence toward colonial rule and a corresponding affirmation of national sovereignty, there was an initial international reluctance to challenge directly South Africa's internal laws and political arrangements out of deference to its status as a member state of the UN, but this inhibition did not exist with respect to South West Africa, which was linked to the organization by its formally dependent status.

And hence, it is not surprising that the only binding decision directly challenging apartheid, as differentiated from earlier advisory opinions, occurred because Ethiopia and Liberia as members of the League were entitled to invoke a compromissory provision in the Mandate to resolve “legal disputes” by recourse to the International Court of Justice (ICJ).Footnote ¹ It was surprising that as late as 1966, South Africa's vigorous and skillful defense of its extension of apartheid to South West Africa was upheld by the ICJ. The decision resulted from a close vote, 7–7, with the tie broken by the casting second vote of the president of the ICJ, who accepted the South African argument. However, this judicial outcome was strikingly at odds with the near unanimity of condemnation of apartheid by the UN General Assembly.Footnote ² The main South African argument was that its administrative authority was unrestricted and that its good faith compliance was demonstrated by applying to South West Africa the doctrine of “separate development” (a political euphemism preferred in South Africa's official circles) of distinct races, which demonstrated Pretoria's good faith as these were the policies chosen by the South African government as the most beneficial way to govern its own population.

In keeping with his overall demeanor, Dugard praises the professionalism of South Africa's defense of apartheid at the ICJ, even to the extent of granting that their arguments were legally plausible as well as ably presented, as was their refutation by the complainant governments.Footnote ³ This exposes the jurisprudential gap in positivist approaches to law as a decisionmaker is often forced to choose between contradictory, legally plausible arguments, yet this is rarely acknowledged. In a case like this, the gap is necessarily filled by ideological orientations although this is generally not acknowledged. This fundamental issue of the inescapable relevance of ideological bias and value preferences of the decisionmaker is unfortunately not discussed by Dugard.

Within South Africa as well, an important political trial was held involving the administration of law in South West Africa. But unlike the ICJ case, it was brought against opponents of apartheid rather than its governmental sponsor. It was a criminal case charging anti-apartheid leaders of South West Africa's independence movement with crimes under South Africa's anti-terrorism laws used to crush militant forms of opposition to apartheid.Footnote ⁴ The anomaly was to hold the trial in the South African capital of Pretoria in a language the defendants did not understand rather than in their native country.

To interject a personal note, I first encountered John Dugard in Johannesburg over fifty years ago when he was a young law professor at the University of Witwatersrand and I was in the country to attend the Tuhadeleni show trial as an official observer of the International Commission of Jurists. His extralegal commitment to telling the world about racism in South Africa was expressed by taking the time to expose me to the cruelties of everyday apartheid by shepherding visits to the townships, courts, and activist friends. Since this visit in 1968, we have shared to a great extent similar human rights concerns and involvements, despite our somewhat different views of law and lawyering that resulted from divergent jurisprudential traditions. Although labels are at best rough approximations, I think it helpful to think of Dugard as adhering to jurisprudential outlook and discipline of legal positivism, and of myself as following an American variant of the legal realist approach, given an elaborate social science framework in the unusual collaboration between Myres McDougal and Harold Lasswell at Yale Law School. As a practical matter, Dugard regards the proper use of law as consisting of its formal enactments as legislation, judicial decisions, and administrative/executive decrees, without according explicit attention to the social, moral, and political context. Dugard is not an absolute positivist as he observes that when law loses a minimum connection with justice, as happened in Nazi Germany, it ceases to be law. Although Dugard is unsparing in his criticisms of the practice and policies of apartheid South Africa, he never openly breaks with legal professionalism or with an acceptance of the systemic legitimacy of the South African legal order, but rather wages the good fight from within its confines and patiently waited until unexpected developments led to the voluntary abandonment of apartheid as the legal basis for governing race relations in South Africa.

Dugard was able to craft such a role for himself as influential critic in apartheid South Africa and yet managed to stay out of jail, and even earn the respect, and friendship, of some advocates of apartheid among the lawyers and judges that served the government. It is instructive to take account of his way of deploying law in a country that regarded overt opposition to apartheid as a crime, potentially punishable by lengthy prison sentences. On all occasions, Dugard presents himself as a person of the law, who acted respectfully within its constraints, seeking to persuade by his presentations of facts and law in courts. Although his sympathies were with the anti-apartheid advocates in South Africa, concretely expressed by his close ties with Archbishop Desmond Tutu and Nelson Mandela, he supported discussions and even organized gatherings that included proponents of apartheid who were judges, professors, and legal practitioners. As he acknowledges in the book, this caused friction with some activists who felt that anyone who participated in such an evil system was to an extent complicit, arguing specifically that liberally minded judges should resign rather than to lend an aura of legitimacy to the governing process.

My own views would have been with those who urged non-cooperation with the apartheid regime, believing that when official wrongs are systemic in nature, then participation in its procedures and institutions sends a message of qualified legitimacy and normalcy that is implied by fostering work from within. This is to some extent a tactical matter, and also a question of temperament. As this autobiography convincingly argues, given the situation in South Africa, Dugard played an honorable role by doing his best, which was far from free of personal risk, to defend and protect the most militant opponents of apartheid while depicting in his scholarly work and academic roles an abhorrence to apartheid. Such a role also suits his liberal temperament, which is to do what you can by way of law, taking advantage of professional skills and credibility, to mitigate and minimize injustice, while leaving it to others to shake the foundations of the overall system by way of non-violent forms of resistance and armed struggle. Dugard's exposition of his role is not judgmental toward others inside and outside of South Africa who sought to pull up the roots of racism, and end apartheid thereby.

His close relations with Mandela and Tutu are expressive of this happy combination of personally crafting a special rather unique role for himself and a capacity to celebrate the divergent choices of others. Movingly, Dugard tells of a meeting in Mandela's home in the African township of Soweto shortly after his unexpected release from prison in which the great leader muses about whether he made the right decision by giving his life over to political struggle at the cost of absenting himself from family life, including the rearing of his two daughters. Mandela tells Dugard that while in prison he frequently asked himself whether “he had made the right decision.” It humanizes a historical figure of Mandela's stature to learn that even he, the epitome of a liberation leader, was at times tormented by self-doubt (p. 140). With a touch of wit and self-irony Dugard comments on the occasion when Mandela received an honorary degree from the University of Leiden at which Dugard was sitting on the stage as a faculty member. Upon recognizing his countryman and comrade the great man breaks ranks of the formal academic procession to embrace his friend: “This small gesture did much for my reputation at Leiden” (p. 141).

Dugard, to his credit, does not shrink from proclaiming his identity as a liberal. This means in effect that he is personally horrified by the racism and injustice of apartheid, yet still finds it useful to mitigate its grossest abuses by acting at the margins in the hope of softening the roughest edges of apartheid. In this spirit he describes his role as a defense lawyer arguing on behalf of clients against the imposition of capital punishment for the violation of apartheid laws. In this sense, the liberal characteristically adheres to the law, shows respect for the genuineness of advocates of an apartheid approach to interethnic relations, and foregoes any formal involvement in unlawful forms of opposition, such as defiance of enacted racist laws that are deplored in scholarly contexts or support for recourse to armed struggle. In this sense, although Dugard went to the ambiguous edges of unlawful opposition, endangering himself and risking his career by socially befriending radical elements, he mostly held back when it came to taking part in active extralegal opposition. In apartheid South Africa, there was a rather fluid interface between the lawful and unlawful, which meant that the government could clamp down on the “legal” by insisting on its inevitable “illegal” aspects.

As Dugard explains, when the historic breakthrough occurred that led to the dismantling of apartheid in South Africa, he was not rewarded for his long oppositional role by being appointed to the South African Constitutional Court or supported as a candidate to the International Court of Justice. Others seem perplexed by these seeming professional slights because Dugard had been such a dedicated opponent of apartheid, as evidenced by being appointed legal advisor to Tutu and his leading intellectual role in developing a critique of apartheid. Dugard, without bitterness, suggests that given the atmosphere after apartheid it became politically incorrect to choose white men for such high-profile positions.

At the same time, these professional snubs had a life-changing effect leading Dugard to accept a previously rejected offer of a faculty appointment at Leiden University, and while residing in the Netherlands he was introduced by his good friend and professional colleague, Richard Goldstone, to a Dutch lady, named Iejte, who became his wife and life partner. Such a development added a peculiar element to his life story. Dugard remained in South Africa until midlife, in large part to carry on the difficult fight against racism, yet chose to become a voluntary expatriate when the country finally dismantled apartheid, becoming a pluralist democracy constitutionally affirming the equality of whites and Blacks.

This question of liberalism as it plays out in various national settings is quite fundamental to our understanding of international circumstances, ideology, and praxis. The liberal situates herself as opposed to extremisms of left or right, which poses a dilemma when an extremist orientation actually takes control of the governing process. At what point does this kind of situation, which existed in apartheid South Africa, contaminate the system? In my observations, based on acquaintance with the elite liberal community of Johannesburg, of which Dugard was the leading academic member, there were at least two kinds of liberals. There was the Dugard type of liberal who jeopardized their careers, even putting their life at risk, by defending the rights of the most militant opponents of apartheid and depicting through journalism, pedagogy, and scholarship the moral depravity of this form of systemic racism.

And then there was the hypocritical type of liberal, professing humane values in private but standing hidden on the sidelines when it came to action, controversy, and public criticism, protecting their careers and high standard of living above all else. I confess that I much enjoyed the hospitality graciously extended by such a family while in South Africa to report on the political trial mentioned above. Although affluent and successful, they were openly afraid that they or their children would become victims themselves of violent African pushback. This made them confused as to what guidance to offer their children, specifically, whether to make the best of career opportunities by shutting their eyes and mouths to the evils of apartheid or to exhibit a discreet but overt opposition. And within the sanctity of the home, these voices of liberal righteousness were frightened to venture onto their own driveway at night scared that they might be targeted by African criminals. They also worried that their African servants might take revenge at some point by slaughtering the family. A telling element of the liberal dilemma was that it was contrary to apartheid policy and sometimes the law to allow servants to reside in a white neighborhood, yet it was intolerably inconvenient to comply with these dictates by insisting that they return each night to their meager homes in inconveniently located Black townships. In other words, the liberal was at once a principled advocate of adherence to the dictates of the apartheid regime and yet as a wealthy citizen impelled to refuse to comply with these dictates so as to achieve a semblance of normalcy in daily life.

Undoubtedly, and initially unconsciously, Dugard became implicated in exposing Israeli violations of international humanitarian law and human rights standards in the administration of the Occupied Palestinian Territories (OPT). This became a central preoccupation for Dugard during his seven years as special rapporteur on the OPT on behalf of the UN Human Rights Council from 2001–2008. Subsequently, Dugard has been the most prominent and respected international law critic of Israel's policies and practices toward the Palestinian people, including participating in sessions of the civil society Russell Tribunal devoted to weighing the apartheid allegations and investigating Israel's attacks on Gaza.Footnote ⁵ As in his earlier work as special rapporteur, in this memoir Dugard gives a lucid portrayal of the features of the Israeli role in the OPT. As with the treatment of apartheid in South Africa, Dugard goes where the evidence takes him, and carefully correlates the facts with his legal interpretations. In a certain sense, while dealing with Palestine, Dugard departs from the liberal canon by his explicit consideration of the relevance of the colonialist origins of Israel in the Balfour Declaration (1917) more than a century ago, and by daring to charge Israel with the crime of apartheid.

As Dugard discovered, taking on Israel was a different experience than opposing apartheid in South Africa. Israel was a Jewish state brought into being in the aftermath of the Holocaust and benefitting from elaborate branding as a modern democratic state in the West European and North American sense. Additionally, the Zionist Movement struck back at its critics, irresponsibly contending that they were motivated by anti-Semitism. In Dugard's case there is utterly no justification for such shaming tactics. He indicates a sensitivity to the dangers of traversing this terrain, remarking, “The topic of Israel and apartheid is one that must be approached with caution and circumspection” (p. 206). Although Dugard does not explain why, it presumably refers to these contextual issues, and to the fact that Israel, unlike South Africa, does not defend what Dugard contends are its apartheid features, but on the contrary, refuses to admit that they exist.

He goes out of his way to document his treatment of the main categories of legal wrongdoing bearing on his internationally provocative conclusion that Israel's administration of the OPT satisfies the international law definition of apartheid. He sets forth detailed summaries of the policies and practice that substantiate this claim: curtailed freedom of movement and checkpoints; house demolitions as instances of collective punishment; Jewish settlements as violative of prohibition of population transfers during a period of belligerent occupation; and the unlawful construction of a separation wall on occupied Palestinian territory.

In a footnote, Dugard cites and distinguishes his treatment of the apartheid issue from my co-authored study with Virginia Tilley of these issues in a 2017 report for the UN Economic and Social Commission for West Asia.Footnote ⁶ Our inquiry was premised on whether the crime of apartheid as defined by international law could be extended to the Palestinian people rather than being confined to the territory comprising the OPT (pp. 206–09, 243). Dugard evaluates the apartheid allegation from the perspective of the legal grievances presented by the Palestinian Authority under the Rome Statute governing the International Criminal Court, whose jurisdictional authority was restricted to Occupied Palestinian Territory. Dugard's actual position as to scope of Israeli apartheid is wider in the sense of pertaining to Israel itself. This delimitation resembles the approach taken in two influential 2021 reports, one by the Israeli human rights non-governmental organization, B'Tselem, and the other by Human Rights Watch. These reports present elaborate analyses of international criminal law and South African racial policies to arrive at the conclusion that the whole of historic Palestine, that is, Israel plus the OPT, as being subjected to an apartheid regime.Footnote ⁷

I find Dugard's account of the relevance of Palestine to his lifetime preoccupation with apartheid to be engagingly set forth in Confronting Apartheid. The text is enlivened throughout by charming anecdotes, and none more enchanting than his comments comparing his experience of Yasir Arafat with that of Mandela. He prefaces the comparison with a certain distancing in the case of Arafat that he did not express when describing meetings with African National Congress leaders: “I learned little new from Arafat and I did not always agree with him.” He continues,

I also had personal meetings with both of these singular individuals, and share Dugard's impressions. Of course, looking back it is important to recognize that Arafat died without having achieved his goals and widely portrayed as a villain, while Mandela succeeded and was lionized the world over for his extraordinary leadership roles, especially for his bloodless management of the transition from apartheid South Africa to a constitutional order that embodied racial pluralism, a startling outcome that had it been proposed, much less predicted, a decade before it happened, would have been dismissed as a wild utopian fantasy.

Such a reflection sets the stage for considering Dugard's hopeful concluding lines of the last chapter entitled, “Is There Hope?,” to which his response is an eloquently hedged “yes.” When it comes to Palestine/Israel, his sentiment is noble and the language somewhat lyrical:

In many ways this passage conveys the underlying spirit of Confronting Apartheid. When Dugard writes of “coming to their senses,” he is expressing his faith in rationalism combined with his belief that we are all better off if guided by a constitutional order that treats all persons within its domain equally. And as is his habit, he gives credit to the Afrikaners for their embrace of rationality as implemented by way of their “wise leadership” in allowing apartheid to find its place in the dustbin of history. Such an ethos of inclusive respect for the humanity of the adversary is almost Gandhian in its historical unfolding. Dugard does not deal with the South African aftermath, which seems haunted by de facto patterns of racially differentiated social and economic inequality, bitter tribal rivalries, corruption, and mismanagement of the governing process. These concerns apparently are outside Dugard's endeavors of recent years, which while attentive to what transpires in South Africa and Namibia, has become more focused on the ongoing struggle against Israeli apartheid and his post-retirement academic activities issuing from his residence in the Netherlands.

There are few good examples of international lawyers taking the time and trouble to do what John Dugard has done so magnificently in Confronting Apartheid. Of course, it helps that Dugard's professional life was enmeshed from its outset in the historic role that law played in resolving the most daunting human rights issues that have dominated the conscience of humanity since 1945. He has produced a book that is at once illuminating and objective with respect to the legal dimensions of the struggles against apartheid in these three national settings and at the same time produced a text that is highly readable, even entertaining. We in the legal profession should be grateful to Dugard for avoiding the dreary prose that almost seems mandatory in the most influential venues of legal scholarship.

It is worth underscoring that despite Dugard's positivist jurisprudential outlook and liberal political stance, he depicts the academic life of an international law professor also engaged in lawyering as a vocational option that serves the public good while respecting the constraints of professionalism. The fact that most academicians and lawyers tend to follow the money, serve the powerful, and are guardians of the established order is a choice not a matter foreclosed by normal career ambitions. John Dugard's life story conveys to readers that it is possible to have the satisfactions of an extraordinary career yet “confront” (his word) the starkest evils of the day. I suspect that at some layer of consciousness, natural law precepts inform such a pattern of ethically accountable life choices. Why only a select few are so oriented remains a mystery of the human condition, perhaps attributable to the material lures of modernity, and maybe connected to the frustrating failure to meet other global challenges of our time.