This article was originally published by PassBlue.
Nations of the world have taken giant steps in recent decades to build international structures and strengthen institutions to deal with mass human rights abusers. At almost every stage, Navi Pillay, a South African lawyer, was there, advancing the rights of political detainees and the protection and status of women.
Pillay, 80, is a descendant of marginalized South Asian immigrants. She came to global public attention in her early 30s, when she won a legal case for recognizing the rights and better living conditions for South African dissidents jailed under apartheid’s Terrorism Act. Her work lightened some of the physical and psychological soul-destroying restrictions on Robben Island, where Nelson Mandela was a prisoner. The case was regarded as her first big legal victory.
“The curtain has been lifted for the very first time on Robben Island,” the Rand Daily Mail, South Africa’s most-prominent newspaper at the time, announced on its front page in 1973. Pillay recalled the moment in a recent interview with PassBlue from her home in Durban in July. The case was reported and printed in full, she added.
As she related the story of her legal and judicial career, Pillay would appear to have been formulating at an early stage a philosophy to guide her through the years ahead. She was a dedicated, angry opponent of apartheid but was not a publicity-seeking militant on the streets, she said, and she attracted criticism for that stance.
Rather, as a scholar who immersed herself in law books, she became expert in finding openings to exploit in South Africa’s constitution and legal institutions. She found she could argue successfully that although citizens’ rights existed, they were being ignored or violated by authorities. In the bottom rungs of authority, there was also brutality and torture not being addressed and denied by the government.
Poised, articulate and confident, as her public appearances show, she went to the courts, armed with not only her knowledge of the law but also the direct evidence of victims and witnesses, some of whom she had met personally. Case by case, she built a solid reputation. One experience led to another, sometimes with unexpected gains in its wake. Her effort in 1971 to save her husband, Gaby Pillay, from being tortured in detention under the Terrorism Act was one such case. (She tells the story in the Q&A below.)
With her legal prominence established by the mid-1990s, after South Africa abolished apartheid and held a democratic election, she was appointed to the International Criminal Tribunal for Rwanda in 1995 and was its president for four years. The tribunal, the first of its kind, adjudicated crimes from the 1994 Rwandan genocide.
She was the only woman on the judicial panel. As its president, her groundbreaking rulings included establishing rape as a crime of genocide, in the case of Jean Paul Akayesu, a local official who knew of gruesome sexual attacks and failed to stop them. She also ruled against media organizations run by businesses among Rwanda’s Hutu majority that spread hate messages, inflaming murderous attacks on the Tutsi ethnic group and moderates in the middle. It is estimated by human rights groups that at least half a million people were killed in the genocide. Others suggest the number may have been as high as 800,000.
In 2003, Pillay was appointed a judge on the appeals bench of the new International Criminal Court (from 2003-2008) and later United Nations high commissioner for human rights, from 2008 to 2014.
Personal firsts piled up for Pillay. She was the first woman of color—an ethnic South Asian Indian—to open her own law firm in Natal Province, where she was based, and the first South African nationally to be awarded a doctorate of juridical science by Harvard Law School.
As violence against women, especially domestic violence, was finally revealed as a growing global menace, South African women implored her to focus on their lack of rights against physical abuse and their extreme poverty. In 1992, she founded Equality Now with Jessica Neuwirth, a human rights leader based in New York City. The organization supported a worldwide network of local groups enhancing women’s rights and abolishing harmful practices, such as female genital mutilation and forced child marriages. Neuwirth now directs Donor Direct Action, which she created with other feminists to support women’s rights and assist women in crisis globally.
Five years ago, Pillay was elected the advisory council president of the International Nuremberg Principles Academy, a German foundation dedicated to promoting global criminal law. (More recently, on behalf of the State of Berlin, the German Society for the United Nations awarded Pillay the Otto Hahn Peace Medal.)
Navi (Navanethem) Pillay was born in Durban on Sept. 23, 1941, to descendants of Tamil immigrants from India’s deep south. Her parents, Santhama and Narrainsamy Naidoo, were poor, raising a family of eight children. An excellent student, Pillay enrolled in 1959 at the University of Natal’s campus for nonwhites. Later, under an exception, she entered and graduated from the university’s segregated law school. The university is now the fully integrated University of KwaZulu-Natal.
As a student, her personal life changed when she met Gaby Pillay, a young lawyer also of Indian descent, at a ball for new students. He asked her to dance, and it turned into a romance. They married in 1965. It was a marriage of choice, not a traditional Indian family-arranged union. Unable to have children on their own, they adopted two baby girls a few years apart, Isvari and Kamini. In a touching story, Pillay described to a South African TV interviewer how one day she took her two girls, one still a toddler, to a public park with swings, knowing painfully that Indian children were not allowed to use them because swings were reserved for whites.
The Pillays’ marriage lasted for three decades despite long periods of separation as Navi moved first to Arusha, Tanzania, where the Rwanda tribunal was based, and then to The Hague to work for the International Criminal Court. Pillay talks frankly about her husband’s broken career in the apartheid years, when he was detained for his strong opposition to the system, and the alcoholism that further strained the family. They divorced, and Gaby died in the late 1990s.
Here is Navi Pillay’s story in her own words, edited and condensed for space.
PassBlue: Your parents were not rich, but they were astute and cognizant of how to cope with life in apartheid South Africa. What advice did they give you?
Pillay: My mother was only 16, so there were as no choices when she was married to my father. My dad was a very oppressive father. But on racism, they both had worked with whites, so they had internalized the apartheid system, believing that somehow we cannot aspire to be the same. They would say, “Don’t try to be a European.” [In apartheid’s racial profiling, whites were classified as European]
But they tempered their own religion and tradition. It took my mother to say: “You are in this country; we are here now. You have to go to an English school. You have to learn English.” We were very grateful for that. She never had schooling. Her father wouldn’t let her go to school because, he said, if she learned to read and write she will write love letters to boys. So she was self-taught and taught by other women who would come by. She was very poor in English, of course, and unfortunately, she was at such a disadvantage that once we started speaking English, she couldn’t understand half the things we would say. Sometimes that upset her.
But in all their talk of whites, they were in awe of them. They were the master race, but we can do what we can by getting educated. Like most parents, mine were absolutely afraid of having their children involved in any opposition activity, because then we could be arrested and thrown into prison and that would be the worst.
That’s what they cautioned us against. A: You could advance in English, but B: Don’t try to be a European. Many people would say that to us. You might see that Mandela wrote in his book that when someone helped him to get a position in a white law firm, a partner told him, “Listen, if you want to succeed as a lawyer, then know your place in society.” And they also told him he was not allowed to use the china teacups in the office. Know who you are. I think it was out of fear that our parents told us more or less the same thing.
We had to do a lot of thinking ourselves, listening to other people, reading the newspapers. We knew that the teachers were absolutely forbidden from speaking of anything close to opposition. Many years later, when my daughter was at school, a teacher was summarily dismissed. She was a follower of the Black consciousness movement, and she kept a lot of their articles and put them on a chart on the wall. Someone saw, and inspectors pounced on it because, they said, she is introducing politics into school.
It was a very, very artificial education. We were learning about British lives, reading Jane Austen and Dickens, but we dared not talk about the lack of democracy in our country. I think that I was six when I started being aware of how afraid my parents were. Nobody knew what our rights were. When I was 10 or so, I wrote an essay in school about Black people getting less justice than whites. A lot of things were going on in my head. Later, when I was at university, I received a lot of criticism from my peers for not just joining a political group. . . . acting as opposition — bringing down a light pole for which they were sentenced to 10 years in prison. I wondered, where did that get them? I didn’t join any political organization though I was close to one of them.
We had to do a lot of thinking ourselves, listening to other people, reading the newspapers. We knew that the teachers were absolutely forbidden from speaking of anything close to opposition.Navi Pillay
PassBlue: Mohandas Karamchand Gandhi, known around the world as the Mahatma, spent 21 formative years in and around your home town of Durban honing some of the techniques, including vast, peaceful demonstrations that would become crucial to his success in helping end British colonialism in India. How is he remembered?
Pillay: He wasn’t a pacifist. He was very strategic. Here in Natal, my province, he led Indian women and men [in a mass demonstration in 1913]. They walked right up from Natal to the Transvaal border, and they were all arrested. This was in protest against the registration passes that Indians were forced to carry. Indians could not cross into Johannesburg state [part of the Transvaal until 1994]. He took all kinds of strategic measures that were actually very activist.
Here in Durban, we still have his house. I saw his old sewing machine, a printing press that published some news, I think it was called Indian Opinion. He was the first to attempt to register a woman as a law clerk, but the Law Society refused. She happened to be white, but that didn’t matter because that was very early—in 1918 or so, and a court said women are fragile creatures, so they can’t study law. But it was Gandhi who took that initiative.
[Ghandi] was the first to attempt to register a woman as a law clerk, but the Law Society refused. … In 1918 or so, and a court said women are fragile creatures, so they can’t study law.Navi Pillay
PassBlue: Talk a bit, if you will, about two areas of your work that led to fundamental changes in South Africa and beyond, aiding political detainees and abused women.
Pillay: I do want to write my memoirs someday about what I did for 30 years, starting with women’s rights. When I met my first women’s [groups], they were still weeping about their mothers-in-law’s views. I had been to university and felt a cut above, and that’s the attitude I had to these women, just to say, “You must really be strong about this.” They said to me, “You are a woman and you will understand.” I started listening to them.
One of my clients had been badly beaten. I talked to her on television, which was new to us in 1971 or so, and this was the first case of wife abuse highlighted in my office and shown on TV. The media called me the next day and they said that their switchboards were inundated with calls from the public, who were so shocked, which shows what a big issue that was. That was the first exposure of this issue in the media, I think that taught me humility, because I did start off with this superior attitude toward those women.
And then came the Robben Island case. I had the opportunity to go there to discuss legal appeals. Instead, they talked to me about the conditions. They were not supposed to talk about that but they had ingenious ways [to convey information]. They wanted to hold English classes; that was prohibited. They wanted to draw up a petition. They wanted things like a copy of the prison regulations. They wanted to see what their rights and obligations were. They wanted the right to a lawyer. There were questions about news and whether they had the right to smoke or whether they had the right to study. We had [prisoners on Robben Island] who had been beaten by the warders. Always, nobody had heard about this. So I had to get the information. But how to use that?
I went to experienced lawyers and most of them encouraged me to file a case in court, the Cape High Court. It ruled that prisoners have a right to a lawyer. If they were alleged to have broken a prison regulations. … They could be heard. They had a right to a trial before a magistrate, instead of the summary sentences, without a hearing that was imposed by the prison authorities.
Why had no one ever challenged the Terrorism Act before? Because under apartheid, it said that no court had jurisdiction to order the release of a person or to inquire about the whys and wherefores of detention. I was the first one to do so because my husband was in detention [not on Robben Island], and I knew I couldn’t apply for his release. So I filed a plea for immunity to stop the police from using torture on him. And then we used this affidavit for my husband for all of the others who had been meeting with him and were on trial.
We now had evidence that people had been tortured by the same chief of security who was conducting the interrogations. That filing was adopted. Of course, the security police said they never use unlawful tactics [but], they never touched him after that. All those affidavits were collected and sent to the U.N., and the anti-apartheid office put it out that this was the first time they had concrete evidence that torture was being carried out to that extent. The African National Congress support group [at the U.N.] asked for two things: sanctions against South Africa and a convention against torture, and that’s how we have a convention against torture.
Some of those little cases we did, the affidavits we got — we never thought would then hit the world. Many people asked me, “Why wasn’t that done for our husbands, our children?” Well, I had my husband’s power of attorney as an entry point, and, secondly, I was able to get all these affidavits. So you think about how you go about it, about using the law. You start by thinking, “I have to do something positive.” So when I got to the criminal trial for Rwanda, there was all this testimony about women being gang-raped. Fortunately, I had hired Jessica [Neuwirth] to help me write that up. So there you are: lots of testimony, lots of conversations about surely we have to do something about this but we don’t know where to begin. This is your true calling. You’re expected to do your best to serve the people who look up to you. I look back and say now: “Oh my god, was that me? Did I do that?”
The African National Congress support group [at the U.N.] asked for two things: sanctions against South Africa and a convention against torture, and that’s how we have a convention against torture.Navi Pillay
PassBlue: Turning to the U.N. Security Council, how much do members care about human rights? How much concern is there among the permanent-five members: Britain, China, France, Russia and the United States, about rights in an era of wanton abuses beyond political/geopolitical games?
Pillay: We show concern not only from the international justice point of view but from a human rights point of view that these five powers are using their vetoes even when human rights issues come before them. So firstly, they would not allow Louise Arbour [a Canadian judge who preceded Pillay as high commissioner for human rights] to address the Security Council because, they said, human rights must be done in Geneva, not before the Security Council.
When I was appointed high commissioner and had my first meeting with [Secretary-General] Ban Ki-moon, I said to him: “I want to address the Council because human rights are essential to their mandate of peace and security. They should be alerted that something is brewing that may blow up into a conflict.”
He said: “You see what happened when I took Louise in? They told us to leave.” Fortunately for me, Poland was hosting a retreat for the newly elected Council members and asked South Africa to invite me to come and address them, which I did, 15 times. But when I left, they stopped my successor Zeid [Ra’ad al-Hussein] presenting the commissioner’s report on human rights violations. He complained loudly in the press about it. Also, three of the P5 veto holders [China, Russia and the U.S.] are not parties to the Rome Statute [which established the International Criminal Court], and yet they have the power to refer, or defer, states suspected of committing crimes. That’s unfair. They can always then make sure that they are never referred to the Security Council for their own records.
PassBlue: The record of the Security Council plays into the argument that the International Criminal Court has targeted only Africans, contributing to a new wave of anti-colonialism. How do you counter this?
Pillay: The ICC can’t and won’t charge any country in Africa, so that issue is [being] manipulated. Unfortunately, the youth in Africa are picking that up. Whenever I’ve addressed universities, they raise the double-standard that the ICC has become another colonialist tool against poor countries.
But the ICC is investigating Afghanistan, Colombia and others. It goes wherever they have evidence that a crime has been committed.
Politicians in Africa use this issue to influence the minds of young Africans with the slick argument that this is once again colonial justice targeted against Africa. Amongst students here, it’s a very hot issue. Having personally served as a judge on that court in the appeals division for five and a half years, I know that the ICC operates very strictly under the [Rome] Statute, and it allows prosecution or admits a case only if the state concerned is unable or unwilling to prosecute or investigate. It’s only because these countries in Africa refuse to prosecute or are unable to investigate that the ICC steps in. It is not the primary investigators or the primary court; it is secondary to national courts. Five out of eight African countries have invited the ICC to investigate the crimes in their country. So I think that speaks for itself that African countries themselves asked for ICC justice.
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