Apartheid Legacy Haunts ICC Appeals Judge

Navanethem Pillay from South Africa is used to firsts. She was the first woman of colour to set up her own law firm in the apartheid-era Natal Province, now KwaZulu-Natal, to take on cases of people arrested under the country's race laws.



She was the first South African to gain a doctorate in juridical science in human rights from Harvard University, and the first non-white woman to be appointed a High Court judge in South Africa.



Pillay was the only female judge during the first four years of the International Criminal Tribunal for Rwanda, ICTR, and now is the first woman judge - and the only African - alongside four male judges at the Appeals Division of the International Criminal Court, ICC.



The 64-year-old – with her penetrating brown eyes and small frame – is a third-generation South African of Indian origin. Her father was a bus driver, and she was brought up in a poor Indian section of Durban in the Forties. Her mother was a housewife who had not been allowed to go to school, as her father believed that would only enable her to write unsuitable letters to boys. She said her mother "dedicated herself to ensuring the education and financial independence of her four daughters".



LEGACY OF APARTHEID



Judge Pillay got her law degree at Durban's University of Natal in a class for non-whites. During 28 years as a "coloured" lawyer, before being appointed a judge in 1995, Pillay was not allowed to enter a judge's chambers. She said her background gave her and other black lawyers of the apartheid era “the impetus of applying human rights laws to our cases".



What she fought against in South Africa has also made Judge Pillay adamant that the norms of a fair trial should never be sacrificed, particularly to the pressure to conduct cases with excessive speed.



Whilst publicly criticising the lengthy pre-trial periods for cases tried at the International Criminal Tribunal for Yugoslavia in The Hague, she has a staunch belief that the judicial process must be thorough and maintains that "individuals have the right to challenge issues like jurisdiction and the very admissibility of their case".



Justice Kate O'Regan, a South African Constitutional Court judge, who has known Judge Pillay since the Nineties, told IWPR that all anti-apartheid South Africans lawyers have a heightened sensitivity to the circumstances in which people can be unfairly imprisoned.



O’Regan believes Judge Pillay will bring the sensitivities and values gained through her experience in South Africa to the ICC. This is crucially important, she said, because once an accused is in front of an international court, the danger is that the international community may automatically presume guilt. However, O'Regan is certain that Judge Pillay will "ensure accused are treated fairly, and justice is done and seen to be done".



AN INTERNATIONAL PERSPECTIVE



Judge Pillay, who opened her law practice in Durban in 1967, told IWPR that that there were "huge gaps" in the way law was taught in South Africa under apartheid. She worried that the judges of that era – including herself – were unaware of international laws such as the Geneva conventions. This deep-rooted concern influenced her decision to go to the United States and study international humanitarian law at Harvard Law School in the Eighties.



At the time, she felt she was deluding her clients into thinking justice could be achieved in the courts of South Africa.



"I saw great injustices and immorality in South African law," she said. “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,” she said.



Deva Govindsamy, from the Office of Public Diplomacy at the United States Consulate General in Durban, told IWPR that armed with her Harvard education, Pillay returned to play a crucial role in mobilising collective legal challenges to "harsh judgments by the white magistrates and judges against people of colour" – long before the apartheid era ended.



All the while, according to Govindsamy, Pillay and other black female lawyers were practicing law in a profession that was not only racially polarised but also male-dominated. "These women had to work doubly hard to get acknowledgement for their legal talents," said Govindsamy.



He said Pillay confronted the "racial and gender-related challenges and demonstrated, during her many trial hearings, that she would fearlessly defend the best interests of her clients".



When acting for her late husband, Gaby Pillay, an apartheid prisoner, she secured an interdict against his unlawful interrogation under the Terrorism Act. She also fought hard to gain rights and privileges for political prisoners on Robben Island; exposed poor conditions in the prison; and won the right for inmates to have access to lawyers and the right to a trial when accused of breaching prison regulations.



Outside court, she became a civil society campaigner for the vulnerable and was a founder of the Advice Desk for Abused Women in Durban and of the international women's rights group Equality Now.



RAPE AS CRIME AGAINST HUMANITY



Judge Pillay spent eight-and-a-half years as a judge at the court set up by the United Nations in 1994 to try those responsible for Rwanda's genocide, and became ICTR President in 1999.



The South African international war crimes prosecutor Justice Richard Goldstone described Judge Pillay's role on the ICTR as "seminal", referring to her judgement in the Jean-Paul Akayesu case, in which the former Mayor of Taba in central Rwanda was found guilty of inciting Hutus to murder and rape Tutsis and in 1998 became the first person convicted of genocide in an international court.



Justice Goldstone said Judge Pillay's greatest contribution was her definition of rape as a crime against humanity under international law. Before the judgment, rape was regarded as one of the spoils of war, but under Pillay's watch the ICTR held that rape constituted genocide when it was meant to destroy a targeted group. "It was not the judgement that a male judge would and even could have written," said Goldstone.



Echoing the sentiment, O'Regan said Pillay was a "fair but firm" judge who recognised that sexual violence is a serious war crime.



O'Regan added that one should not underestimate how difficult it is to listen to the testimonies of these "awful events". She said one of Judge Pillay's strengths in the Rwanda trials was her ability to "acknowledge and admit this emotional burden" while distancing herself and sitting as a judge to "determine whether convictions were given with sufficient evidence".



Norman Taku, assistant director of the Centre for Human Rights at the Faculty of Law in the University of Pretoria, told IWPR that Judge Pillay's experience at the ICTR makes her one of the most eminent and promising ICC judges.



"International criminal justice is a new phenomenon whose jurisprudence is nascent," said Taku. "There is no substitute for the few individuals who have contributed to what little collective experience there is – as judges, prosecutors and defence lawyers."



STRINGENT RULES



During the first two years of ICC operation the judges drew up a list of regulations and a judicial code of ethics. Pillay said they wanted to avoid "constantly amending rules and regulations", as happened at the ICTR, because "there must be certainty in the rules of this game. The accused and their lawyers must know what the rules are before a trial starts.



The ICC judges "wanted our own code of conduct because we are professional and come with ethical codes we subscribe to. We want to be fair and for the public to know we are accountable," she said. This was particularly important in the face of some high-profile criticism from those countries that chose not to ratify the Rome Statute and become signatories to the ICC. Judge Pillay told IWPR that US president George Bush damned the ICC judiciary as "foreign judges not accountable to anyone". "This is not true," she said.



INCORPORATING LOCAL JUSTICE?



One concern of trying Africans at the ICC is that victims of war crimes may not feel justice is being done if it is not in accordance with local indigenous traditions and custom.



Judge Pillay said the ICC has looked at practices of all "enlightened national jurisdictions" and adopted the best. "We are in the 21st century," she said, explaining that the court cannot act like the Nuremburg court – set up after the Second World War to try Nazi war criminals – which was ruled by “victors' justice”.



"This is not acceptable today by the international community, and we must presume the innocence of individuals and protect their rights which have evolved over the last 50 years," she said, adding that only then would the court gain credibility and acceptance and persuade sceptical non-signatory states, such as China and the United States, that it is viable.



Judge Pillay also underlined the need for international standards of justice. For example, under Islamic Sharia law if a woman complains of rape, she is obliged to produce four male eyewitnesses to validate her claim. "The ICC says that we must protect rape complainants from re-traumatisation, and rely on the single evidence of the woman complainant without corroboration," she said.



But these differences between systems pose difficulties for the ICC, as well as the ad hoc war crimes tribunals that preceded it. Pillay said there has been "some dissatisfaction” from Rwanda that the ICTR does not apply the death penalty, when inside the country it was used.



This becomes more of an issue for the ICC because of the “principle of complementarity”, which means that the court will only intervene if a country is unwilling or unable to handle genocide crimes, war crimes and crimes against humanity.



However, the principle also means that the country concerned will eventually be tasked with investigating and trying those suspected war criminals that are not sent to the ICC.



Even though the laws of the Rome Statute will be 'knitted' into the justice system of any country that is signatory to the ICC, there is some concern that suspects tried locally will be subject to local rules and procedures more so than those sent to the ICC.



Pillay told IWPR she has been participating in the training of judges from all over the world, speaking to them about whether local or ICC principles should be applied in national jurisdictions. She said the ICC will watch the process in any country tasked with trying war crimes suspects under the complementarity principle "to monitor whether it is a sham trial" or whether "disparate procedures" are applied.



ESSENTIAL AFRICAN KNOWLEDGE



All this is why Judge Pillay is such a valuable asset to the ICC, which so far is dealing only with African cases. She has an in-depth knowledge of the continent and its people. She understands, for example, why culturally an African witness would be offended if accused of lying by a forceful European-style interrogator. "I would also understand them testifying to something they did not witness and giving hearsay evidence – not distinguishing between what they have seen and what have heard," she said.



Judge Pillay knows how unsafe it is to assess a person by their demeanour and facial features. For example, she explained, "the witness who looks straight into the eyes is perceived as more truthful, and looking down is translated as evasiveness. However if you look at African culture, it might be disrespectful to look straight into the face of authority."



Judge Pillay is a widow and has two daughters. Her eyes lose some of their seriousness when talking about them, and a big smile spreads across her face. Isvari is 33 and works in the jewellery store Tiffany's in New York. Her younger daughter Kamini is 29 and an urban planner in Johannesburg.



This legal innovator and prosecutor of brutal war crimes has often been praised for her considerate treatment of witnesses and victims. She now offers her expertise to the newest actor on the stage of international justice – the International Criminal Court.



Katy Glassborow is a regular IWPR contributor in The Hague.