Earlier this year former UN High Commissioner for Human Rights and judge Navi Pillay delivered the prestigious Annual International Development Public Lecture for Warwick University’s Global Research Priority on International Development. Madhu Mehra, visiting international fellow at the Warwick Institute of Advanced Studies, and feminist lawyer working in India and founder of Partners for Law in Development, interviewed Pillay about her life and work. The interview touches upon Navi Pillay’s work as a grassroots activist early on in her career as well as her work as a judge at the International Criminal Court.
A refusal to shrink from difficult confrontations is a recurring theme in Navi Pillay’s career. During her six years as UN High Commissioner for Human Rights she took on the then Sri Lankan president Mahinda Rajapaksa for failing to investigate the deaths of over 100,000 people in the last weeks and months of the country’s civil war, which ended in 2009 after 26 years. In response, the Sri Lankan government said that South African-born Pillay lacked objectivity because of her Tamil ancestry. An Indian diplomat told Pillay that her campaign to end caste discrimination was unfair because it humiliated India on a world stage. A Syrian ambassador called her a “lunatic”. Some western countries (including the UK) complained when she pointed out their failures to uphold certain human rights. “They said I should be focusing on distant countries where thousands of people are killed,” she said. “In other words, developing countries.”
When recounting these stories, Pillay smiles, almost flippant. “It is true I have been called terrible names. Someone asked me to look at my pictures on Google images; many were super imposed with the face of Osama bin Laden. There are a lot of people who don’t understand human rights.”
Pillay’s steadfastness in the face of detractors is unsurprising when you consider her background. Apartheid shaped her formative experiences and her early practice as a lawyer.
Navanethem Pillay was born in 1941 to a poor family in Durban, South Africa. Her grandfather was brought to South Africa from India to work in “semi-slavery” on the country’s sugar plantations. In South Africa Pillay experienced discrimination three times over: as a woman, as a South African of Indian heritage, and as someone from a working class background. She credits her parents for encouraging her to stay in school when friends from primary school “suddenly dropped out” because they were forced into arranged marriages. That Pillay went to secondary school and university was unusual for the time. “I got to university because my community, a poor community of Clairwood, was told by the school principal, ‘We have a girl with potential and she should go to university.’ The community of Clairwood collected funds to send her to University.”
Once at university she would face different battles. In a recent interview with the Diplomatic Courier she said: “My own work as a human rights lawyer was shaped by what I had experienced under apartheid. I could not enter parks or beaches reserved for whites. I attended Natal University and, because the schedule was developed to help white students who were working in law firms, classes were in the early morning and in the night. I often did not have the money to take the bus home between classes, so I sat in the library and read the Nuremberg cases.”
Early on, Pillay knew pursing a legal career would be difficult. Aged 10 or 11, when she told a teacher that she wanted to be a lawyer, he replied: “You must have a wealthy father, you need a lot of money to study law.” Pillay’s father was a bus driver. It was crushing for young Pillay to hear, it suggested that social structures were immovable.
“Everything is interconnected, the way society is structured and what adults say to you. It is such a struggle for children to overcome these barriers,” she says.
After graduating Pillay began applying for work. Most law firms were all white. “Firstly they said, ‘no we can’t take you on because we cannot have a situation where a white secretary has to take instructions from a black person. So that is race.
“And class discrimination … they said, ‘Well, what kind of business will you bring? Do you have a father who is in business?’ But the most hurtful was, I was newly married and they said, ‘What if you fall pregnant?’”
So she went it alone. Her male peers called her presumptuous. “A woman starting a law firm? She’s not going to last,” they said. “But I had little choice.”
Soon Pillay had built up expertise in domestic violence work and began to defend anti-apartheid activists, including her husband Gaby Pillay. The cases she fought would help secure rights for prisoners at Robben Island including allowing them access to lawyers and a fair trial when accused of breaching prison regulations.
It was when fighting these cases and interrogating the prejudices within South African law that Pillay began to consider the role of international law in protecting the human rights of citizens within a particular country. In a 2006 interview with the Institute for War and Peace Reporting Pillay said that she, “worried that the judges of that era – including herself – were unaware of international laws such as the Geneva conventions”. She told the magazine: “I saw great injustices and immorality in South African law. There was little opportunity to get a fair trial when there were presumptions [of guilt] under apartheid laws. For example, if someone was charged with conspiracy the onus was on the accused to prove otherwise.”
Throughout her career under apartheid Pillay fought injustice using the law even though it shackled her. Under the apartheid regime, due to the colour of her skin, she was banned from entering a judge’s chamber. The first chamber she entered was her own, she said, when Nelson Mandela appointed her to the Supreme Court in 1995. She became the first non-white female judge in South Africa.
“Throughout my life I found myself doing many things that were done for the first time,” she says. In well-established democracies, she adds, little change happens. “But in South Africa we had an opportunity, a new democracy to make that change.”
All my lessons in life were learnt when other women opened my eyes
In 1996 a young lawyer named Lisa Priutt spent two months gathering evidence for the International Criminal Tribunal for Rwanda. Priutt was the ICTR gender consultant, a role created to improve the investigation of sexual assault, sexual mutilation and rape that took place during the Rwandan genocide in 1994. During her two-month investigation, she uncovered harrowing details of rape suffered by hundreds of women, raped because they were of Tutsi ethnicity or Hutu ethnic women married to Tutsi men. Priutt discovered that those investigating the cases were often men and few were trained to deal with rape survivors.
A Human Rights Watch report written at the time noted similar problems and said that during its investigation (conducted by an all women team) rape survivors said they felt uncomfortable recounting their experiences to men. The report, Shattered Lives, called for the cases of rape, sexual slavery and sexual mutilation to be prosecuted as crimes against humanity, genocide or war crimes. Priutt agreed and produced a memo to that effect. But the reaction from fellow UN staff members was muted. “Mostly I heard the ‘boys-will-be-boys’ mentality – a real resistance to seeing the widespread (sexual assaults) as part and parcel of the genocide,” Priutt said in a recent interview. “It is sort of summed up by ‘We had a genocide down here; we can’t be concerned about some women who got raped.’”
Navi Pillay made it her business to listen to people like Lisa Priutt and the researchers at Human Rights Watch. In 1996 she was elected to serve at the International Criminal Tribunal for Rwanda where she was the only female judge. At the time rape was recognised as a war crime, but had never been prosecuted except in the Military Tribunal for Japan. “Let’s just give these women a sentence or two,” Pillay remembers a member of the judgement writing team saying, which made it difficult to get sexual violence on the charge sheet. The thinking at the time was that rape simply wasn’t as serious as the killing that had taken place.
One of the first cases to appear before the tribunal was that of Jean-Paul Akayesu, a former schoolteacher and mayor of the Tabu commune during the genocide. At least 2,000 Tutsi Rwandans were killed under his watch. His was a regime where torture and murder of Tutsi people was routine, and repeated sexual violence towards women widespread and systematic. However, rape as a weapon of genocide or crime against humanity was omitted from the original charges.
It was the witnesses, says Pillay, and the researchers gathering hundreds of testimonies that provided ammunition needed to challenge the exclusion of sexual violence from the charge sheet. Pillay and her fellow judges asked for information on what had happened. Listening to the women, she says, meant adopting a clear definition of rape in international law for the first time. Akayesu’s charge sheet was amended to include:
Crimes Against Humanity (Rape), Crimes Against Humanity (Other inhuman acts), Violations of Article 3 Common to the Geneva Conventions and of Article3 4(2)(e) of Additional Protocol II (Outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault)
In 1998 Akayesu was found guilty of nine counts of genocide and crimes against humanity, including rape. “A conviction of rape as genocide,” says Pillay, “much more serious. Nobody can go back on that.” The case was a turning point. From then on the definition of sexual violence during conflict as a weapon, a way of destroying a particular group or community, was accepted, making it easier to include with other charges of crimes against humanity.
Though Pillay is widely credited as having played a major part in this change, she places the credit solely with the women who came forward to testify.
“All my lessons in life were learnt when other women opened my eyes,” she says. Pillay first learned this as a “super confident” young lawyer working on her first cases in 1960s South Africa. “I was very hard on the women who came to me in tears,” she said. “They explained their domestic violence, how they were being treated at home, arranged marriages, a whole range of issues. At first I was really impatient and thought they were weak because they were shedding tears. Look at me, I got over many things.”
But the women continued to come to her and Pillay began to listen, realising that domestic abuse was widespread and went beyond individual cases. Using whatever means she could, Pillay campaigned to raise awareness of the issue. At a time when it was frowned upon, she went public with the most shocking cases where justice proved elusive. “I was the first to put on TV my client who had been beaten up very badly. She came to me because he wasn’t paying child support. She had these huge gashes across her face. The husband had slashed her and when her six year old daughter picked up a tissue to wipe the blood off her face, the father said to the daughter, ‘just leave her alone, let her die.’”
These experiences and conversations with women informed Pillay’s work in the final days of apartheid. When negotiations for a constitutional democracy began in the 1990s, Pillay was part of the Women’s National Coalition and contributed to the gender equality provision. She co-founded Equality Now, an international women’s rights organisation. And before that, in 1986 Pillay co-founded one of the first domestic violence NGOs in South Africa, Advice Desk for the Abused. The group’s work initially focused on the gaps in the law where the protection of abused women was concerned. The NGO has since lobbied for better implementation of South Africa’s Domestic Violence Act through education and training for enforcement officials and for more work on confronting the societal problems that lead to male violence against women, and the recognition of less obvious abuse such as controlling and coercive behaviour. All of which echoes Pillay’s own thinking on the importance of public education alongside legal change.
Human Rights is Everybody’s business
“How did I make the switch from being a judge who thinks he or she is almighty and tell people what to do?” Pillays says with a wry smile. “I had to become an advocate and I think it took me two years to learn. The first thing I did was to look at this mandate and realised this is a very special mandate. This mandate given to the United Nations High Commissioner for Human Rights is to promote and protect all rights of all people all over the world. I looked at the mandate and did the maximum I could.”
Pillay was high commissioner for human rights for six years and during that time challenged international blindness to crimes against humanity in places like Gaza, Sri Lanka and Syria. She took up the causes which in 60 years had never been on the UN’s human rights agenda, the caste system, for example, and gender equality for trans people and other non-binary genders, forcing her colleagues to “learn the words LGBTQI”. She raised issues around economic and social rights.
But when Pillay sat and looked at her mandate, she realised that to get things done she would need to challenge the way international human rights worked as well as tackling the issues. Top of the list was navigating the unwieldy UN mechanisms for monitoring and managing international human rights, and how to convince non-human rights departments to think about human rights. “When I first became high commissioner for human rights I started attending the treaty bodies, addressed them and you know what they said to me? This is the first time a high commissioner had attended,” she says.
The problem was, Pillay says, that groups within the UN acted in silos. What she wanted to do was encourage human rights thinking at all levels of the UN. When she raised this, colleagues told her to restrict the criticisms to Geneva. In other words, that’s not our problem. And so internally she pushed for the secretary general to adopt a human rights action plan which “meant that human rights is everybody’s business”.
The idea was, Pillay says, “to get the UN divisions after 60-plus years to accept that human rights is one of the three pillars, together with peace and security, and development, of the UN, and that human rights is everyone’s responsibility, whether you are working on development or political affairs. It meant that the UN no longer followed the policy, when there was a problem, of seeing how fast they could get out. It meant staying and protecting people.”
Change will always come from the ground from the collective actions of civil society and by listening to the victims of human rights abuses is the running theme of Pillay’s reflections. Once the legal structures are in place to challenge human rights abuses and protect rights, the hard work of implementation begins. This involves an array of actors, and judges and lawyers aren’t necessarily at the forefront of that action. There are times when a judge’s role to interpret the law collides with the protection of the human rights of a particular group. “This is what my doctoral thesis was about: the political role of judges who imposed apartheid legislation when it was declared a crime against humanity. They still imposed it.”
But the existence of international treaties and standards, the expertise of special rapporteurs and their research, the work of civil society and academics can all be bought to bear on judgments, and influence the lens judges look through when making decisions. “There are one or two on every bench who are ready to do that. Those are the people we zero in on, to help them.”
This was after all how she was able to challenge the law on sexual violence in conflict, by listening to the testimony of rape survivors and drawing on the work of experts.
“I got a great deal of help from academics on creating this new jurisprudence, the gender jurisprudence. I felt in my heart that we have to render justice. That is what we are there for, to render justice and so if a woman complains about a brutal rape, we have to pay attention.”
Banner photo by Christopher Sanders-Jolliffe and Joe Horsey.