Few people are as well positioned to discuss the legal nature of apartheid in the South African, Namibian and Israeli/Palestinian contexts as John Dugard. A highly regarded legal scholar and human rights activist, Dugard played an important role in the struggle against apartheid in South Africa before 1994. For much of the first decade of the twenty-first century, he acted as a UN Special Rapporteur on human rights in the Palestinian territories occupied by Israel since 1967. Frequent field visits and extensive investigations made him a renowned authority about the subject.
His book, Confronting Apartheid, tells a story of personal involvement in all three cases, albeit on an uneven basis. Being born and educated in South Africa, with a decades-long career as a teacher, scholar and activist there, has formed the core centre of his professional and personal career. Palestine has been a passion of his for the last two decades so naturally occupies a central place in the book. But Namibia is marginal to his story and he dedicates only fifteen pages of the book to discussing a couple of legal issues that were addressed in the 1960s; very little of more recent developments is mentioned.
Entitled ‘a personal history’, Dugard starts with his childhood in the rural Eastern Cape before the rise of formal apartheid in 1948, continues with the decision (unusual for White English-speakers) to study law at the University of Stellenbosch, the intellectual centre of Afrikaner nationalism, and his early academic career in the 1960s. He proceeds to discuss his growing involvement in teaching and writing about international law and human rights – topics that were largely excluded from the mainstream legal and scholarly fields at the time, the height of the apartheid period.
In the 1970s and 1980s, he played a crucial role in the rise of a group of human rights lawyers and activists who increasingly challenged the apartheid system on a range of issues. Although the system was fundamentally unjust, enshrining discrimination and oppression politically and legally, human rights activists believed that it could be undermined from within by taking advantage of its adherence to formal legal procedures and its quest for legitimacy.
Combining legal discussions, presented in a concise, informative and accessible manner, Dugard takes the reader systematically through the main aspects of apartheid: the division of the country into White and ‘native’ areas (the Bantustans or Homelands); the creation of urban group areas, based on a rigid system of racial classification; pass laws to control the movement and residence rights of Black people; and security legislation and tight political control through the operation of the police, press censorship and draconian punishment of offenders, including the death penalty. How the legal system adapted to the rule of a police state is a major feature of this section, condemning the collaboration of many judges and lawyers, but also praising the brave minority who resisted and occasionally won against the odds.
These brief summaries of key legal features of the system offer a superb introduction to it, of use to scholars and laypersons alike. A bit less useful perhaps is the absence of more socially and politically grounded analysis of apartheid – a result of the narrow disciplinary focus of the book. Dugard's obvious concern is with issues with which he is familiar and has dealt with throughout his career, but his discussion would have been enriched by including or even merely alluding to issues that were central to debates among scholars and activists: land as an economic and cultural resource, race consciousness, religion and nationalism, capitalism and cheap labour power, and the relation between White supremacy and White prosperity. This would have allowed the reader to grasp better the overall function of apartheid for White people and its impact on Black people. It would have helped set the global context for the system and explain why many of its social and economic features survived the demise of apartheid as a legal system and continue to shape South Africa today.
Most questions related to South African society and politics under apartheid are no longer in much dispute but that is not the case for Dugard's other main concern: the question of Palestine. His analogy between South African apartheid and Israel's occupation regime in the 1967 territories is central to ongoing debate about the issue.
His starting point is a distinction between ‘Israel itself’ and its occupation of Palestinian territories: Palestinians in Israel, he says, are enfranchised and entitled to hold public office, unlike their Black counterparts in apartheid South Africa. He goes on to outline the conditions that led him to define the 1967 occupation as a form of apartheid: the dual system that grants Jewish settlers legal rights and privileged access to resources and services while denying the same to Palestinian residents of the territories, severe restrictions on the ability of the latter to move freely, express themselves politically, work and trade, and generally control their own lives. A policy of systematic land confiscation for the benefit of the Israeli state, its military forces and civilian settlers has resulted in massive dispossession of people, widespread house demolitions, arrests (800,000 Palestinians have spent time in Israeli prisons over the years) and denial of basic human, civil and political rights.
Dugard makes a strong case for regarding the Israeli occupation as an apartheid regime. The only argument that can be raised against it is the temporary nature of the occupation, meant to be in place only until a settlement between Israelis and Palestinians is reached. But fifty-two years of entrenched Israeli control make that argument a mere disguise for permanent domination. Is he correct though in making a distinction between Israel and the occupied territories? Yes, because his UN mandate was restricted to the 1967 occupation. But there are two other reasons why the answer is ‘No’.
The first concerns Palestinian citizens of Israel who reside within the Green Line (the pre-1967 boundaries). They can vote in elections indeed but are denied equality and membership in the national community. As recently as March 2019, Prime Minister Netanyahu wrote: ‘Israel is not a state of all its citizens. According to the basic nationality law we passed, Israel is the nation state of the Jewish people – and its alone.’
The 2018 Nation-State law enshrines Israel as an exclusive Jewish state with regard to its ethos, symbols, language and mission: to encourage Jewish immigration and settlement, and to reserve the right to national self-determination to Jews only. In its entirety, the law is about Jewish identity and ownership of the country. The only right accorded to non-Jews, indeed the only mention of them, is that of informally keeping their own days of rest and holidays.
The Nation-State law was enacted in 2018 but it entrenches practices that had seen the state of Israel confiscating 90 percent of the land held by Palestinian citizens in 1948, constructing hundreds of settlements for Jews and none for Arabs, subjecting local Palestinians to military rule until 1966 and subtler forms of political restriction after that, and allocating resources in a sharply unequal manner, benefiting Jewish citizens and municipalities in access to grants, services and facilities in the fields of health, education, employment and infrastructure.
The second reason why a focus on the 1967 occupation is not enough concerns another group that serves as a reminder of the price paid for the creation of Israel at the expense of ‘native’ people: these are the 1948 refugees who were subject to an ethnic-cleansing campaign known as the Nakba. It saw 725,000 people (more than half of the Palestinian-Arab population at the time) expelled or forced to flee across the border into neighbouring countries, prohibited from returning to their homes, land and homeland. These refugees, by now living through a fourth generation in exile, experience dispossession worse than anything known under apartheid in South Africa. Not only are they set apart from their basic rights; they are unable to set foot in their ancestral homes, villages and towns, even as short-term visitors, let alone fully fledged citizens.
For a complete picture of the Israeli state as an apartheid regime, then, the three dimensions above must be considered: the ethnic cleansing of 1948, the occupation of 1967 (on which Dugard focuses) and the marginalised status of Palestinian citizens. In fact, this challenges the very notion of ‘Israel itself’ as a distinct entity that can be examined in isolation from the other aspects of the overall system of Israeli domination over Palestinians.
These critical comments notwithstanding, Dugard's book offers a highly informative and valuable discussion of apartheid in South Africa and beyond, and it provides a solid basis for ongoing debates about the legal and historical issues with which it engages.
