Special Section: Taking the Bench

The bus driver's daughter

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

Navi Pillay
Judith Dekker

Navanethem (Navi) Pillay in her office at the International Criminal Court in The Hague

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.

"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.


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