The bus driver’s daughter

A child at the time of the Nuremberg Trials, Navanethem Pillay now carries their legacy forward

Navi Pillay LL.M. ’82 S.J.D. ’88 first came across the Nuremberg Trials on a shelf in the library at the University of Natal in apartheid South Africa. A student enrolled in classes for nonwhites, Pillay spent hours reading the trial transcripts, transfixed by the ideal of justice represented in the account of countries coming together to hold individuals responsible for the most heinous acts.

It’s a chapter from history that stayed with her over the next three decades. But as she represented her clients, including anti-apartheid activists and battered women, against a system that enforced injustice, it often seemed as remote as the end of apartheid itself.

Today, at age 64, Pillay is helping to write subsequent chapters. She is one of 18 judges from around the world elected to the International Criminal Court in The Hague, the first-ever permanent independent court set up to punish individuals for genocide, war crimes and crimes against humanity (including apartheid).

The idea for the court was raised at the U.N. in 1948, when Pillay was 7 years old. It became a reality more than 50 years and a Cold War later, after “ethnic cleansing” in the former Yugoslavia and a genocide in Rwanda. The international community’s response to the massacres–the establishment of ad hoc tribunals involving judges from all over the world–lay the groundwork.

A member of the appeals chamber, Pillay sits on the court as a seasoned advocate and a trailblazer. A bus driver’s daughter from a poor Indian section of Durban, she was the first woman of color in Natal province to start her own firm, winning victories for apartheid’s prisoners (including her husband) and becoming an advocate for women. She applied international precedents in her cases and was the first South African to receive an S.J.D. from Harvard Law School, studying human rights and international law to fight unjust laws at home. But she is also one of the most experienced international criminal law judges on the court, having served eight and a half years on the International Criminal Tribunal for Rwanda.

Pillay was elected to that tribunal in 1995. It was the same year she’d been appointed a High Court judge in South Africa, the first woman of color in the country to hold that post. During 28 years as a “colored” lawyer, she had not been allowed to set foot in a judge’s chambers.

She says it was a hard time to leave South Africa and admits it was difficult to imagine staying four years in Arusha, Tanzania, where the U.N. had established the tribunal. But that changed once she began the work and saw how important it was for the victims of Rwanda–and for Africa itself, where there was so much injustice in domestic legal systems.

Credit: Judith Dekker

“Your own personal ambitions and interests and discomforts fell away,” she said. “The accused must have fair trials, and we have to be impeccable in our procedures so that these kinds of institutions will have credibility.”

Pillay ended up staying for two terms, contributing to rulings that have shaped international criminal law.

Within her first term, Jean-Paul Akayesu, the mayor of the Rwandan town of Taba, was tried for inciting fellow Hutus to murder, rape and torture thousands of Tutsis. He was found guilty and became the first person to be convicted of genocide in an international court. The tribunal also held that rape was a crime against humanity and constituted genocide when it was meant to destroy a targeted group.

“Rape had always been regarded as one of the spoils of war,” Pillay said in a statement after the verdict. “Now it is a war crime, no longer a trophy.”

The case also introduced a broader definition of rape into international law. The precedent has since been followed by the International Criminal Tribunal for the former Yugoslavia–established by the U.N. in 1993–and is reflected in the law of the International Criminal Court, which recognizes a range of acts of sexual violence as among the most serious crimes under international law, and which was set up to defend the rights of women and children, so often targeted during warfare.

The Akayesu judgment was “a real turning point for criminal law, especially when it comes to crimes committed against women in armed conflicts,” said Elizabeth Odio Benito, who served as a judge on the tribunal for the former Yugoslavia and is now Pillay’s colleague on the International Criminal Court. “Before, they were totally hidden, never mentioned in any international jurisdiction.”

Although Pillay was one of three judges who signed their names to the Akayesu judgment, she is credited with shaping and articulating its arguments. The only woman on the Rwanda tribunal during her first term, she’d been an early advocate for women’s rights in South Africa and later co-founded the international women’s rights group Equality Now with Jessica Neuwirth ’85.

“My impression is that if [Pillay] hadn’t been there at the time, nothing would have changed,” said Odio Benito. “And for us, the judges on the ICTY, it was very, very important to have this precedent.”

Other precedent-setting cases Pillay participated in include the conviction of Jean Kambanda, the former prime minister of Rwanda, who pleaded guilty to genocide. It was the first time an international criminal tribunal held ahead of government accountable for atrocities committed during his regime. And during her last year at the tribunal, in the first case of its kind since the Nuremberg Trials, Pillay and two other judges convicted three Rwandans for using media reports to incite genocide.

Pillay earned a reputation as a tough but fair-minded judge. Rosemary Byrne ’92, director of the International Process and Justice Project at Trinity College in Dublin, Ireland, who observed the proceedings in Arusha for several years, says this is a boon for an international trial, where one of the challenges is control from the bench. “[Pillay] exercised her authority, but she did it with graciousness and humor,” Byrne recalled.

The other thing that was distinctive about Pillay’s style, says Byrne, was the way she treated the many victims and witnesses who traveled from Rwanda to testify about atrocities. “At the end of an examination, judges routinely thank witnesses and victims,” she said. “But [Pillay] would also recognize that it is often very difficult for people to testify about these kinds of experiences, and that recognition was actually something quite unique.”

Neuwirth, who served as a consultant to the tribunal, said that in addition to being an adept lawyer, Pillay proved to be a skilled diplomat: “She knows how to get people to come together toward a common vision. She really has a unique talent.” It was all the more valuable considering the international nature of the tribunal, with judges and attorneys from all over the world. Although the proceedings are adversarial, the trials meld common and civil law practices.

At first I thought it’s just not going to work because each one of us is loyal to the system under which we were trained,” said Pillay. “In internal deliberations, one judge would say, ‘That is the right way of doing it,’ and another would say, ‘You mean that’s the way you do it in your country.'”

Sometimes there were misunderstandings. She cites the day one of her colleagues suddenly banged his gavel to clear the court. When asked why, he pointed to the empty public gallery. Another judge explained that the requirement that trials be public means only that the doors be open to spectators. “It was a learning experience every step of the way,” Pillay recalled. But looking back, she says, it was the least of their difficulties.

Pillay became president of the court in 1999, and one of her greatest challenges was untangling the U.N. bureaucracy that had hamstrung the tribunal since its creation in 1994. Trials would be postponed for weeks because there were no ink cartridges to print briefs, or because translators who’d worked the maximum number of hours set by the U.N. had to quit before a witness was done giving evidence. “Every step of the way it was like that,” said Pillay. “Courts don’t run that way.”

Pillay did everything she could to expedite the trials, including imposing heavier caseloads on judges and streamlining the pretrial process. But as she reported in 2002 in her last appearance before the U.N. General Assembly, “Trials continue to be drawn out and often defy our plans to expedite proceedings.”

A big part of Pillay’s challenge was the highly political nature of the presidency. In addition to wading through an administrative quagmire, reporting to the Security Council and being constantly monitored by NGOs, the head of the tribunal must balance extremely sensitive diplomatic relations with Rwanda, which controls access to most of the witnesses; for much of 2002, it made it nearly impossible for witnesses to travel to Arusha.

“Even presidents of the Supreme Courts in national jurisdictions don’t have the same kind of profile and widely spread expectations directed against them as Judge Pillay had to deal with,” said Byrne.

Pillay knows the Rwanda tribunal has its flaws and its critics. Many complain that its remove from most Rwandans diminishes the impact of its sentences on their lives. She appreciates the need for healing and is interested in the Rwandan gacaca courts, in which lesser crimes are tried by the community, and apology and reparations lead to a lightened sentence.

Credit: Judith Dekker

But Pillay believes that what the tribunal has achieved–jailing and trying the “big fish,” high-level Hutus deemed responsible for the genocide–has been crucial for Rwanda and could not have been accomplished in-country. After the genocide, Rwanda didn’t have the resources and, she says, couldn’t have obtained the suspects arrested in 24 countries around the world. “Other governments would not have transferred them because of [Rwanda’s] death penalty and political tensions,” she explained.

Other countries’ cooperation is in itself a breakthrough, Pillay adds. “Before, leading criminals in Africa always had refuge.”

The tribunal’s biggest achievement, she said, is “showing that international criminal justice is possible…. It was just a concept and an idea, and we turned it into a reality”–the sort of thing Pillay might have dreamed of more than 40 years ago as she read through the Nuremberg Trial transcripts.

The biggest challenge for the International Criminal Court is to make international criminal justice a reality in countries like Uganda and Sudan, where genocide is happening now. To succeed, it will take even more juggling and cooperation.

Unlike the ad hocs, the court is independent from the U.N. and deeply reliant on the 100 states that have agreed to its jurisdiction–with China and the U.S. conspicuously absent. (The U.S. has called that independence “a recipe for politicized prosecutions.”)

The court’s jurisdiction began on July 1, 2002. For crimes committed from then on, member states refer cases and assist with investigations. The court may prosecute only when states cannot or will not. And it then relies on members or the international community to apprehend those indicted.

In October 2005, the first five arrest warrants were unsealed, against leaders of a Ugandan rebel group who are accused of raping, enslaving and killing thousands in Northern Uganda, many of them children. The office of the prosecution has two other cases under way, including a referral from the U.N. Security Council to stop the killing in Darfur. But before the trials can begin, defendants must be in hand.

In the meantime, in a white metallic high-rise on the outskirts of The Hague, the judges prepare. They’ve drafted regulations for the court, trying to learn from the mistakes and the accomplishments of the ad hocs. Pillay and her colleagues from the International Criminal Tribunal for the former Yugoslavia had a lot to contribute as the judges looked ahead to streamlining proceedings, while protecting the rights of the defendants. As Slobodan Milosevic’s trial labored on a few miles away, a proposed allowance for the appointment of counsel against the will of the accused was vigorously debated, for example. (In the end, judges agreed that it would be allowed under certain circumstances.)

Other projects include helping to implement a reparations program, the first one set up by an international court. It’s one of the things Pillay pressed the Security Council to obtain for victims of the Rwanda genocide, albeit unsuccessfully, and she’s been part of a team helping to work out the details at the International Criminal Court, which can order those found guilty to make reparations to their victims.

There is a collegial bustle in the high-rise, a mix of languages in the elevators and by the metal detectors in the lobby and at the cafeteria coffee bar. Pillay brings her experience to this legal community, but it’s coupled with a lack of self-aggrandizement, which Neuwirth calls humility: “She’d be just as comfortable with activists in a mud hut as with heads of state at a dinner table.”

Pillay says Harvard Law School made an enormous difference in her career. For the first time, she studied human rights and, after focusing so long on the political struggle in South Africa, made space to develop arguments to defend women. HLS Professor Martha Minow says it’s Pillay who has made an enormous difference, citing the landmark Akayesu rape decision. And, looking ahead to Pillay’s role at the International Criminal Court, Minow added:

“As new and challenging as the ICTR has been, the ICC is even more uncharted, both in terms of powers of the courts and capacity to proceed across the globe while respecting the efforts by member nations to redress injustice. I think the world is lucky that someone with her talents, wisdom and experience is there as the uncharted becomes known.”

In Pillay’s office with its big windows looking out on changeable Dutch skies and an orderly landscape below, she has few mementos of her time in Arusha. But the voices of the survivors have stayed with her. You couldn’t listen to their testimony without being affected, she says, recalling a mother whose seven children were murdered, and another witness who lay oozing blood for days under a pile of corpses.

Hearing the accounts of barbarity affected her sleep, but hasn’t made her cynical about human nature: “The courage of all those witnesses inspires you.”

Hans-Peter Kaul, an international law scholar from Germany and Pillay’s colleague on the court, says he looks to her as his guide on many matters as trials approach, including the prospect of facing the facts of genocide from the bench. Despite all she heard in Arusha, “she has remained a gentle, balanced person,” Kaul said. When his turn comes at the International Criminal Court, he hopes to do as well.

Kaul believes the participation of judges such as Pillay should help allay concerns that the court will be dragged into politically motivated prosecutions.

After struggling for nearly 30 years against a judiciary that wasn’t fair and independent, and looking to Americans for guidance (her S.J.D. thesis at Harvard questioned the possibility of justice in South Africa when courts were used as political instruments), it saddens Pillay that the United States isn’t a party to the International Criminal Court. But she imagines that once the trials are under way, there will be greater faith. In the meantime, all judges can do is administer justice honestly, but that–she’s learned from personal experience–is not to be taken for granted.