John Dugard

Dealing With Crimes of a Past Regime. Is Amnesty Still an Option

From time immemorial amnesty has been employed as a means of promoting a political settlement and advancing reconciliation in societies that have emerged from repression. At present there is a trend in support of prosecution of those who have committed international crimes, such as torture and crimes against humanity, which excludes the possibility of amnesty. That amnesty is no longer favored is illustrated by the failure of the Rome Statute of the International Criminal Court to recognize amnesty as a defence to prosecution. While there is no place for unconditional amnesty in the contemporary international legal order an intermediate solution such as a Truth and Reconciliation Commission with power to grant amnesty after investigation, of the South African kind, may contribute to the achievement of peace and justice in a society in transition more effectively than mandatory prosecution.

The Secession of States and Their Recognition in the Wake of Kosovo

Also available as an e-book The secession of States is subject to legal regulation. The arguments presented by States in the advisory proceedings on Kosovo confirm that there are rules of international law that determine whether the secession of a State in the post-colonial world is permissible. These rules derive from the competing principles of self-determination and territorial integrity. In deciding whether to recognize a secessionist entity as a State, or to admit it to the United Nations, States must balance these competing principles, with due regard to precedent and State practice. These lectures examine cases in which secession has succeeded (such as Israel and Bangladesh), in which it has failed (such as Biafra and Chechnya) and in which a determination is still to be made (Kosovo, Abkhazia and South Ossetia).

Twenty years of human rights scholarship and ten years of democracy

Today I will talk about the past, the present and the future of human rights in South Africa.

The Future of International Law: A Human Rights Perspective – With Some Comments on the Leiden School of International Law

In the past fifty years there have been changes in relation to the nature and sources of international law. Academic lawyers have welcomed these changes, which show a movement away from strict consent as the basis of international law. States and government law advisers have adopted a more conservative approach and emphasize the importance of consent as a basis for international law. Different approaches are apparent in the practice of the Human Rights Council. The Council has focused on the Occupied Palestinian Territory, much to the annoyance of Western states. The developing world sees the Occupied Palestinian Territory in much the same way as the United Nations saw apartheid in South Africa. The International Court of Justice has responded wisely to both these phenomena. It has given cautious approval to new notions of international law, encapsulated in the doctrines of obligations erga omnes and jus cogens. On the subject of Palestine the Court has given an Advisory Opinion which should form the basis for a peaceful settlement of the conflict in the Middle East. Unfortunately the international community has failed to give effect to this opinion.

Lifting the Guise of Occupation and Recourse to Action before the ICJ and ICC

There is much debate about how Israel’s occupation of the occupied Palxad estinian territory (oPt) and, more strictly, the occupation of the West Bank and East Jerusalem,1 are to be characterized. Is it purely a system of belligerent occuxad pation of foreign territory—along the lines of Nazi Germany’s occupation of the Netherlands during World War II—as argued by those who deny the apartheid analogy?2 Does the prolonged nature of the occupation give it a special status?3 Do the illegal acts committed by the occupying power negate its status as belligerent occupation and instead render it a case of illegal occupation?4

Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa

The relationship between international crimes and sovereign immunities has bedevilled judicial practice and legal scholarship and created an apparently irreconcilable tension between the two notions. Part of the difficulty in addressing this tension derives from the approach to resolving it. This paper proposes a novel approach, viewing the relationship specifically from the perspective of international criminal law and looking at the three core functions of immunities in that context. The authors conclude that customary international law excludes immunities as defence or bar to jurisdiction for core international crimes regardless of the nature of the jurisdiction concerned, the position of the accused, or the capacity in which the accused acted. When interpreted within that framework, the ICC Statute provides for clear limitations to the role of immunities in ICC proceedings and avoids the pitfalls that have thus far marred the ICC ’s approach to the law of immunities.

What’s Wrong with International Lawyers?

I was pleased to be able to pay tribute to Fred Soons at the farewell seminar to honor him on his retirement. At this seminar I was asked to address the question “What’s wrong with international law?” I had no hesitation in replying that there is nothing seriously wrong with international law and that it was necessary to look elsewhere for an answer to the question. International law is as developed as most national systems of law in terms of its substantive rules and its institutions for dispute settlement and change. Most branches of international law have clear rules. There are treaties, buttressed by custom, that regulate treaties, state responsibility, territory, jurisdiction, the sea, airspace, immunities, international organizations, human rights, humanitarian law, trade, economic relations, the use of force etc. There are a plethora of international courts, monitoring bodies and arbitration tribunals to settle disputes. There are bodies for the codification and progressive development of international law. There are some black holes. The law of recognition of states, for instance, is uncharted territory but states refuse to submit it to codification, and the International Law Commission has acquiesced in this determination.1 There are other black holes but no more than in many national legal systems. The main problem facing international law is enforcement. It is weak and characterized by double standards. But there are enforcement mechanisms and dispute settlement mechanisms. The Security Council is the ultimate enforcement mechanism, but its composition and veto power renders it largely

The Elusive Allocation of Responsibility to Informal Organizations: The Case of the Quartet on the Middle East

This paper considers the question of responsibility for omissions of the Quartet on the Middle East. The Quartet was created to assist in the peace process between Israel and Palestine. Its core document is the Roadmap, but in recent years it has failed to live up to its expectations and arguably this constituted a breach of obligations to prevent. The ensuing questions of attribution of conduct and allocation of responsibility are highly complex, as this paper’s analysis has demonstrated. The members of the Quartet, the US, the UN, the EU and Russia, have created an entity that is not an international organisation with separate legal personality, so it cannot be held responsible. Holding the individual members responsible, which would be the obvious alternative, is highly problematic due to the requirement of individualised conduct for attribution, the diversity of the obligations binding on the members of the Quartet and the difficulty in distinguishing each contribution to the Quartet’s omissions.

A Tale of Two Sacred Trusts: Namibia and Palestine

Kader Asmal is be best remembered for his tireless dedication to the advancement of democracy and human rights in South Africa. But during his long sojourn in exile he espoused other liberation causes, particularly those of Namibia and Palestine. In the 1971 Advisory Opinion on Namibia the International Court of Justice stressed that the concepts embodied in Article 22 of the League Covenant, such as the sacred trust and the concern for the well-being and development of the peoples concerned, were evolutionary and not static, with the result that they are to be interpreted to take account of subsequent changes to the law through the Charter of the United Nations and customary international law. Palestine is a member of the League of Arab States. In 2011 Palestine was admitted to membership of UNESCO, by a vote of 107 to 14 with 52 abstentions. Keywords: human rights in South Africa; Kader Asmal; Namibia; Palestine

International (In)Justice and Palestine

In the bleakest days of apartheid in South Africa one could always turn to the international community and its institutions for support. There were international standards and norms that apartheid violated and the international community was not afraid to assert such standards and to condemn South Africa for violating them. The West led the way in this condemnation of apartheid. But it is not so with Palestine. Despite the fact that the violation of international legal norms is much clearer in the case of Israel’s relations with Palestine, the response of the international community’s institutions (as contrasted with that of civil society) has been very different. This is particularly apparent in the response to the wall Israel is presently constructing in Palestinian territory, the invasion of Gaza in 2008/2009 and the attack on the high seas on the humanitarian aid flotilla bound for Gaza in May 2010.