Navi Pillay

 

Navanetham Nadoo was born to Narrainsamy Nadoo and Santhama Nadoo in 1941 in a poor neighborhood of Durban, Natal Province, Union of South Africa of Indian Tamil descent.^[8] Her grandparents came from India as indentured servants to work on South African sugar plantations in Natal in the 1890s.^[8] Her parents had an arranged marriage during their early teens and had 8 children, the fifth being Pillay.^[7] Narriansamy was a bus-driver by trade and took up other jobs such as fishing to supplement their income while Santhama was a homemaker.^[7] The two raised their family with strong Hindu values, emphasizing equality between the men and women in the family.^[7] While most of Pillay's counterparts during elementary school were married off, her parents insisted she and her two other sisters attend school like their brothers.^[8] At the time, there were more children in South Africa than there were spots in schools.^[7][8] Adamant on ensuring education for all her children, Pillay's mother would wait in long admission lines, using the birth certificates of her older children to get her younger children into school.^[7] With limited money for school supplies, Santhama Pillay would stitch together notebooks for her younger children, using blank pages from the used notebooks of her elder children.^[8]

In school, Pillay experienced an environment completely different than her home life, learning a new religion in a new language.^[7] Despite their personal beliefs, teachers were strictly prohibited from addressing politics, including apartheid, out of fear that the school administration would retaliate.^[7]

Pillay had her first encounter with the law when she was five years old and testified in court after being robbed of 5 pounds.^[7] Her mother had given her the money to give to her father as these were his wages for the month.^[7] While the subject was convicted, the court did not return the money to her father.^[7]

Pillay received many accolades for her writing during her early childhood. When she was 10 years old, Pillay wrote an in-class essay on how black individuals received heavier sentences than their white counterparts in South African courts using information she had overheard from her parents and teachers since she could not access radios or newspapers.^[7] At age 14, Pillay submitted an essay on why South Africans should buy South-African made commerce to a competition held by the Durban Chamber of Commerce, later receiving a bronze medal for her work.^[7] At 15, Pillay published an essay on the role of women in instilling values in children which earned her an award of books from the Jewish Women's Union.^[7]

Supported by donations from the local Indian community, she graduated from the University of Natal with a BA in 1963 and an LLB in 1965.^[7] She was sponsored by the citizens of Clairwood, the Durban City Council, and a scholarship from the university.^[7] During her years at the University of Natal, the campus was extremely politically active.^[7] Most classes and graduations were segregated which infuriated many students on campus.^[7] Under apartheid, Pillay was forced to share what limited resources they were given amongst all non-white students at the university.^[7] She once had to share a required textbook in a non-white library with 20 of her other non-white classmates.^[7] In 1959, South Africa passed the Separate Universities Act which forced previously de-segregated universities to re-segregate.^[7] As a result, Pillay was forced to transfer to the nearest non-white university, University at Salisbury Island, after her first year of university.^[7] While the University of Natal offered an LLB program, University at Salisbury Island did not.^[7] She filed for an exemption with Minister of Justice, calling the office directly after receiving no response and was then able to return to Natal where she could finish her degree.^[7] She later attended Harvard Law School, obtaining an LLM in 1982 and a Doctor of Juridical Science degree in 1988.^[7] Pillay is the first South African to obtain a doctorate in law from Harvard Law School.^[13]

She met her husband Paranjothee “Gaby” Anthony Pillay in 1962 as the first lawyer she offered a contract of articles to.^[7] In January 1965, the two married, eventually going on to have two daughters.^[1]

Pillay has spent much of her legal career advocating for the preservation of international human rights law, with a special focus on crimes regarding rape and sexual violence.^[10] She was very involved in the anti-apartheid movement, defending political opponents of apartheid in their cases against the state for poor prison conditions and the wrongful use of torture.^[14][7]

After graduating University of Natal, Pillay had the choice of becoming an advocate or an attorney.^[7] Pillay chose to pursue a legal career as an attorney which required two years of service as an attorney before becoming an admitted attorney.^[7] She served under N.T. Naiker for two years, a member of the African National Congress. Naiker was often under house arrest and had to rely on Pillay to testify for his clients in courts.^[7] In 1967, Pillay became one of three women admitted attorneys and the first non-white^[15] woman to open her own law practice in Natal Province.^[2] She says she had no other alternative: "No law firm would employ me because they said they could not have white employees taking instructions from a coloured person".^[16] As a non-white lawyer under the Apartheid regime, she was not allowed to enter a judge's chambers.^[16]

 

During her 28 years as a lawyer in South Africa, she defended anti-Apartheid activists^[17] of the African National Congress, the Unity Movement, the Black Consciousness Movement, and Azapo.^[7] She also helped expose the use of torture^[17] and poor conditions of political detainees.^[16] When her husband was detained in 1971 under the Terrorism Act, she successfully sued to prevent the police from using unlawful methods of interrogation against him.^[18] In 1973, she won the right for political prisoners on Robben Island, including Nelson Mandela, to have access to lawyers in State v Kader Hassim and 9 others and State v Harry Gwala and 9 others.^[7][19] While providing legal counsel, her clients recommended she consult judges with expertise in international law and humanitarian law on their cases.^[7] Pillay then applied to and attended Harvard University in 1981 under the foreign exchange Harvard-South Africa Scholarship Program and earned her Master of Law.^[7] The Harvard-South Africa Scholarship Program was a foreign exchange program created by anti-apartheid activists on Harvard's campus.^[8] They demanded that if the university were to continue to invest in companies that did business with South Africa under apartheid that they offer opportunities for South African students to study at Harvard.^[8] After completing her thesis, she graduated from Harvard Law School with a Doctorate of Jurisprudence in 1988. She co-founded the Advice Desk for the Abused and ran a shelter for victims of domestic violence.^[18] As a member of the Women's National Coalition, she contributed to the inclusion in South Africa's Constitution of an equality clause prohibiting discrimination on the grounds of race, religion and sexual orientation.^[20] In 1992, she co-founded the international women's rights group Equality Now.^[20]

 

In 1995, the year after the African National Congress came to power, Pillay was nominated and confirmed to the High Court of South Africa by the President Nelson Mandela and the Judicial Service Commission^[21] under supervision of the bar association, becoming the first non-white woman to serve on the court.^[7] The Judicial Service Commission is a group of jurists hand picked by the President to screen incoming candidates on the High Court of South Africa and compile the list of nominees.^[22] Pillay's connection with Nelson Mandela during their work against apartheid made her a familiar name to Mandela during his presidency, putting her on the short-list for the nomination to the court.^[8] Shortly after her appointment, President Nelson Mandela called Pillay to personally congratulate her on her judgeship stating “your appointment gives me great personal joy. I hope it soon will be important”.^[7] She noted that "the first time I entered a judge's chambers was when I entered my own."^[19]

Her tenure on the High Court was short, as the United Nations General Assembly elected her to serve as a judge at the International Criminal Tribunal for Rwanda (ICTR) shortly after.^[16][23]

In 1995, the Minister of Justice Abdullah Omar and President Mandela submitted Pillay's name as a nominee for the U.N. Security Council and a judge on the U.N. International Criminal Tribunal for Rwanda (ICTR).^[21] Between 1999 and 2003, Pillay served on the ICTR and was elected President Judge.^[24] She served for eight years, including four years as president.^[23] She was the only female judge for the first four years of the tribunal.^[25] Her tenure on the ICTR is best remembered for her role in the landmark trial of Jean-Paul Akayesu, which established that rape and sexual assault could constitute acts of genocide.^{[26][25][27][24]} Pillay said in an interview, "From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong signal that rape is no longer a trophy of war."^[27]

In the case of The Prosecutor v Jean-Paul Akayesu on 2 September 1988, the court indicted Akayesu for being individually responsible for death and harm of Tutsis during the Rwandan Genocide.^[28] It was during the case that Pillay was able to set an international legal precedent which considered rape as a form of genocide and a crime against humanity.^[29] The court argued that crimes against humanity are not defined by their discriminatory intent.^[30] Rather, an act is considered a crime against humanity if it "part of a widespread or systematic attack against any civilian population".^[30] In this case, Akayesu was mayor of the Taba commune where many Tutis women took refuge and purposefully instructed the militia group to target and rape civilian women.^[31][32]

Pillay also served on the Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze trial regarding the role the Radio Television Libre des Mille Collins (RTLM) and the Kangura magazine in spreading hate propaganda against the Tutsis.^[7] The criminal tribunal found that Ferdinand Nahimana was indicted for the direct and public incitement to commit genocide while working at the radio station RTLM.^[33] Jean-Bosco Barayagwiza was also indicted for the direct and public incitement to commit genocide at the RTLM and for his work with the Coalition for the Defence of the Republic.^[33] Hassan Ngeze was also charged for the incitement of genocide in relation to his work with Kangura magazine.^[33] The case was significant for considering the role media plays in politics and public opinion, and its real life ramifications.^[34]

Pillay garnered international recognition for her work as a judge on the ICTR and caught the attention of the members of the Women's Caucus for Gender Justice during the late 1990s.^[29] Impressed by her work, women's advocates wanted to ensure the protection of women's rights during the establishment of the International Criminal Court.^[35] The Women's Caucus gained enough momentum to attend PrepCom and the Rome Diplomatic Conference where they codified women's rights into the ICC statue, advocating that there be quota for the number of women judges on the bench and the use of "gender" instead of "sex" in the ICC provisions of the Rome Statue.^[35][29] After the establishment of the ICC, Pillay became one of the first judges to ever serve on the court.^[36]

Pillay was nominated to serve on the International Criminal Court's Appeal Chambers by the Assembly of State Parties to the Rome Statute on 7 February 2003.^[36][37] She was elected to a six-year term but resigned in July 2008, effective 31 August 2008, in order to take up her position with the UN.^[38]

One of the first cases to appear in the International Criminal Court was The Prosecutor v Thomas Lubanga Dyilo for enlisting children under 15 years old to the armed militias inciting violence between the Hema and Lendu ethnic groups in the Ituri, north-eastern region of the Democratic Republic of the Congo.^[39] While Dyilo was convicted for his war crimes in 2012, Pillay served on the appeals chamber during the pre-trial phase of the case from 2006 to the end of her term in 2008.^[40]

 

On 24 July 2008, UN Secretary-General Ban Ki-moon nominated Pillay to succeed Louise Arbour as High Commissioner for Human Rights.^[41] The United States reportedly resisted her appointment at first, because of her views on abortion and other issues, but eventually dropped its opposition.^[17] At a special meeting on 28 July 2008, the UN General Assembly confirmed the nomination by consensus.^[1] Her four-year term began on 1 September 2008.^[1] Pillay says the High Commissioner is "the voice of the victim everywhere."^[16] In 2012, she was given a two-year second term.^[1] She also signed a document "BORN FREE AND EQUAL", a document on sexual orientation and gender identity in international human rights law as High Commissioner.^[42]

Pillay expressed concern about pressure being placed on private companies to enact a financial blockade against WikiLeaks in 2010. She said such action was a violation of WikiLeaks' right to freedom of expression.^[43]

Pillay voiced support for a gay rights resolution in the UNHRC, which was approved in 2011.^[44] At a news conference in July 2014, she referred to Edward Snowden as a "human rights defender" and said, "I am raising right here some very important arguments that could be raised on his behalf so that these criminal proceedings are averted."^[45] In August 2014, she criticized the international community over its "paralysis" in dealing with the more than three-year old Syrian Civil War, which by 30 April 2014 had resulted in 191,369 deaths.^[46]

The composition of the bench of the International Court of Justice varies from case to case, and will choose a judge ad hoc to serve on the bench if there are no judges representing one or both of the regions the parties are from.^[47] For Pillay, the party of Gambia elected her as the judge to represent their region and has been serving on the bench since 2019.^[12]

Pillay has been serving as a judge ad hoc on The Gambia v Myanmar since 2019 for crimes of genocide.^[48] The case brought by Gambia against Myanmar for violating the Genocide Convention against the ethnic group Rohingya.^[49] Despite pushback from Myanmar, the court approved Gambia's case as admissible in court and continues to hold hearings.^[48] The case is notable in that it involves another country suing another for war crimes in another jurisdiction, which has created a lot of pushback in the international community regarding the ICJ's jurisdiction.^[49]

In 2003, Pillay received the inaugural Gruber Prize for Women's Rights.^[50]

She has been awarded honorary degrees by

• Durban University of Technology - based in her hometown of Durban, South Africa
• Durham University, England^[51]
• City University of New York School of Law, USA^[52]
• London School of Economics, Rhodes University, South Africa^[53]
• Catholic University of Leuven, Belgium^[54]
• Erasmus University Rotterdam, Netherlands^[55]

In 2009, Forbes ranked her as the 64th most powerful woman in the world.^[56]

In 2009, she received the Golden Plate Award of the American Academy of Achievement presented by Awards Council member Archbishop Desmond Tutu at an awards ceremony at St. George's Cathedral in Cape Town, South Africa.^[57][58]

 

Her criticism of the Sri Lankan government being an authoritarian state,^[59] in alleging human rights violations and atrocities committed by them against Tamil civilians at the end of the Sri Lankan civil war, has led the government and its supporters to apportion her own Tamil descent as the only reason for her criticism, a claim she strongly denies.^[60]

 

In a speech on 8 June 2012, Pillay blacklisted the provincial government of Quebec in Canada for human rights violations concerning the rights to peaceful protest and free expression for its student protesters, specifically in Canada.^[61] The bill in question, Bill 78, required that protest groups over 50 must gain approval from authorities at least 8 hours before the planned start of the protest.^[61] The reaction from human rights NGOs was mixed.^[61] Quebec official sources criticized Pillay for comparing Quebec with areas known to have worse records.^[61]

Pillay's call in 2012 for the suspension of sanctions against the Robert Mugabe regime in Zimbabwe was criticized by civil society groups in the country, which accused the Zimbabwean government of manipulating Pillay into overlooking the human rights violations committed by the government.^[62]

Her contribution to the 2001 Durban Conference on racism, the Goldstone report, and her steering of the UN Human Rights Council have been criticized as unjust by The Jerusalem Post.^[63] Pillay's claim that Israel was engaged in the "apparent targeting of …children playing", on 23 July 2014, a charge previously denied by IDF spokesmen,^[64] has been described by Anne Bayefsky as "incitement to hate".^[65] After reviewing the heavy US contribution to the Iron Dome program, Pillay called for better defense for Gaza, stating that "no such protection has been provided to Gazans against the shelling".^[66] TheTablet magazine described this statement as a "hilariously delicious absurdity".^[67] On 25 July 2014, the United States Congress published a letter addressed to Pillay by over 100 members in which the signatories asserted that the Human Rights Council "cannot be taken seriously as a human rights organisation" over their handling of the 2014 Israel–Gaza conflict.^[68] In July 2022 Pillay defended Miloon Kothari, a member of the Permanent United Nations Fact Finding Mission on the Israel Palestine conflict who questioned Israel's right to be a UN member state and alluded to a "Jewish lobby controlling social media," which prompted condemnation by Israel, Britain and United States. Pillay claimed that Kothari's comments were taken out of context.^[69]

 

Pillay is now chair of the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, created after the Israel-Gaza clashes of 2021.^[12] The U.S. and Europe have been vocal about their disapproval of the establishment of the commission because it has no formal end date, to which she has responded that "the occupation [of Israel] does not have end date either and you tend to support that occupation".^[70] Pillay has also claimed that war crimes are being committed both by Hamas and Israel in the wake of the terrorist 7 October attacks in 2023.^[71] She has additionally denounced Israel's retribution for disproportionately targeting children and has been hesitant to call Israel's actions self-defense.^[70] In response, many critics from prominent news sources such as the Jerusalem Center for Public Affairs have called her comments anti-semitic.^[72]

• First women lawyers around the world
• List of first women lawyers and judges in Africa