Dugard v Law and Evidence

Prof. Dugard’s anti-Israel diatribe in the Cape Argus was met with a powerful response from international Professor of Law, Prof. Gregory Rose. Read the response from Prof. Rose here:

The opinion of John Dugard in the Cape Argus, Friday, 27 November 2020, was both sad and surprising. Sad because so predictable in its anti-Israel diatribe. Surprising because of its disregard of international law.

One does not build a career that ascends to the heights of UN special rapporteur for anti-Israelism without exceptional efforts to demonise Israel, so it is sadly unsurprising. Exceptional disregard of international law when it flows from the pen of an erstwhile professor of law is surprising nevertheless. There were so many glaring conceptual inconsistencies and factual errors in this legal opinion that it could be used as a teaching tool for fallacious argument and poor legal research.

Beginning with the first sentence, asserting that much of the world will commemorate the UN Day of Solidarity with the Palestinian People, it is worth noting that the day is much ignored. The UN created no such day for any other people, of whom there are many, from Ainu, Balochi, Chechnyan, Dalit, to Kurds, Kanaks, to Yazidis. The UN day only for the Palestinian people, like the special division of the UN Secretariat and the special rapporteur UN job that John Dugard held, are specialised political tools. Their intended political function is well known to support the annual bundle of UN resolutions driven forward by the 56 UN members of the  Organisation for Islamic Cooperation and designed to demoralise, delegitimise and weaken the Middle East’s Jewish state. Hence, the Dugard opinion’s sad predictability.

The main issue, however, is international law. In the second sentence, Dugard asserts that Israel occupies Palestine but in the third sentence says that the Palestinians have no State. Logical thinkers will note the inconsistency: international law applies to occupation of a foreign State, yet he says that there isn’t one. The occupied territory was in fact never an Arab Palestinian State, but occupied by Jordan as its West Bank for 19 years after its attack on Israel in 1948. When Jordan’s attack on Israel in 1967 was defeated, Israel came into control of the West Bank, which was then legally ceded by Jordan about another 19 years later. So, is a State of Palestine there or not?

Dugard asserts that the Israeli occupation is permanent. He disregards the generous territorial offers often made by Israel beginning in 1967, only to have the peace negotiations rejected by the other side. Furthermore, while noting that the West Bank is under Israeli military administration, it is obvious that Israel would bring the West Bank under civilian administration, as it has done for Jerusalem, if it intended permanent rule. Yet, even there, Israeli negotiators offered the Palestinians a joint capital in exchange for peace, three times in the last 20 years.

There is no mention or comprehension by Dugard of the Oslo Accords of 1993, the central peace agreement legally binding between Israel and the Palestine Liberation Organisation, instituting the Palestinian Authority as a government with civil jurisdiction for specified areas of the West Bank. This pivotal agreement was an interim step with a view to continued negotiations concerning peace, normalisation and sovereign institutions. Extending his legal errors, Dugard incorrectly asserts that Israel has no sovereignty claims in the West Bank, while in fact Israel has sovereignty claims withheld ‘in abeyance’ in favour of peace negotiations. Hence, some areas should be described as disputed.

It gets even worse as the opinion slides from legal error into hints of anti-Semitism. Was there any logically or morally relevant reason for him to denigrate the Holocaust? Of course, it was a form of genocide as a legal category as he says, but it remains unique in its industrialisation, scope and horror.

In addition, how in good conscience could he completely ignore any mention of Arab war or Palestinian terrorism against Israel and the necessity of self-defence in the legal context? Do Jews in Israel have no right to defend themselves against war crimes and crimes against humanity perpetrated against them? The separation barrier he condemns has helpfully reduced around 90% of terror attacks originating from the West Bank coming into Israel.

Finally, the essence of his comment is the false allegation that Israel is an apartheid country. He incorrectly makes the legal assertion that the International Criminal Court is considering this charge against Israel. In fact, the Court is considering the legality of Jewish settlement in the West Bank. He claims that it is discriminatory for Israel to require Palestinians to carry identity documents, yet he disregards the well-known fact that Israelis are similarly required to carry identity documents. He incorrectly asserts that that Israeli legal procedures governing detention are arbitrary, yet they exceed international standards. He laments territorial fragmentation in the West Bank, yet disregards the peace agreement that created separate geographical zones of cooperative jurisdiction that are geographically outside of Israel. There are too many legal errors to mention them all.

Sadly predictable as his allegations of apartheid against Israel are, nevertheless, Prof John Dugard’s sloppy disregard of international law and plain evidence are very surprising.

Gregory Rose is Prof of Law at the University of Wollongong Australia.

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