This week Judge Navi Pillay, esteemed retired UN high commissioner for human rights and former judge at the International Criminal Tribunal for Rwanda, delivered the keynote address at the 77th Biennial Conference of the International Law Association. Janet Smith spoke to Pillay, now in her new role as a commissioner of the International Commission Against the Death Penalty
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JS: You’re finally based at home in Durban after so many years in Geneva and travelling the world as a campaigner for human rights. But even as you’ve brought that experience back to South Africa to play a key role here, your global role continues. Is this how you are happiest?
NP: It’s worked out completely differently from what I imagined retirement would be! When I was with the UN, I was travelling all the time, but still now, I’ve also been travelling outside the country every month. At the same time, there’s been very interesting work inside the country.
There was the xenophobia probe we did in KZN, and then there’s the independent panel under (former president Kgalema) Motlanthe which involves 15 of us, mainly academics, assessing legislation passed after 1994.
We’re not like these parliament sub-committees. We have to make sure we reflect the truth and get to the ground. It’s a mammoth task involving lots of people.
I’m so aware of promises being made nationally, but where there’s no delivery locally. So although I am still moving on a global scale, I’m very focused locally now.
JS: In Women’s Month, especially this year as we reflect on the leaders of the 1956 march on the Union Buildings, we’re thinking about our heroes. You’re one of them, but this is not only because of the scale of the work you did around the Rwanda genocide and at the UN. This is also about your past, when you were a young lawyer in South Africa.
NP: Going back to 1973, ’74, there was a huge number of detentions, even of high school children, and my office became like a human rights office. How can you charge for work like that? And in the course of that, my husband, Gaby, was detained because he had given a R100 donation, and for that, he was held five months in solitary.
Fortunately, he’d left a power of attorney with me, and he’d described his experiences over a first stint in detention, and so I was able to use the courts to prevent the police from torturing him. Then people constantly came running to me asking, why can’t you do this for our children? And so we started collecting affidavits from people who had been tortured, and that would help us take this whole thing forward.
I was terrified at the time of bringing the case to protect my husband. I was so scared that I didn’t go to the court. There was a Colonel Swanepoel who I was afraid to look at eye-to-eye. He’d been torturing everyone from the ’60s but once I’d filed, and these types of interrogation had been prohibited as unlawful, and the sheriff had served it, they never touched my husband after that.
I think we must look at the quality of women. When you have nothing in life, and you still find something to feed your children. In my case, it was really an emotional matter.
Later on, all those affidavits were collected by the ANC and the UN got involved. There were important documents there, including on (Steve) Biko who was also killed by torture, and so the ANC asked the UN for two things: one was sanctions against the apartheid government, and the other was for a convention against torture. Those things both happened, and started really with little steps.
That’s what women understand; that you just have to take those first small steps, not only look at the big picture.
I know that when I was a young lawyer, I made many mistakes. I’d be much better today with all the experience, but we still had to try. We still have to strengthen ourselves, so we can go out there and move away from intimidation and fear.
JS: Fighting torture and the death penalty are a significant part of your work internationally now. But while your earlier victories in South Africa laid the groundwork, was it the massive challenge of eight years as a judge at the International Criminal Tribunal for Rwanda that cemented it? For four years, you were its president. You were also the only female judge for the first period, so that must have been a gauntlet all of its own. But in the end, it was the trial of ex-teacher and mayor Jean-Paul Akayesu, who didn’t stop the killings of Tutsis in his commune, and even supervised some, that changed the way the world views rape and sexual assault.
These are now considered war crimes thanks to the work you did there, which was a world-changing achievement. Yet our own horrifying rape statistics must still trouble you.
NP: It was an achievement. I mean, people had written about and studied the fact that women were for so long collateral damage, given as rewards to soldiers, but after that, authories now have to take it seriously and protect women.
I always say it’s because men get away with domestic violence and family rape and so on, because they have a sense that nothing will happen to them, that they are emboldened to commit these crimes. That’s the story of South Africa right now. And even though people, lots of South Africans, feel that if we had the death penalty it would deter people, I think that’s got everything to do with the comfort of knowing there will have to be an investigation. A person will be punished.
Now that’s what we don’t have here, and I find it alarming that women cannot just walk on to the street, even in day time, now, with an assurance that they will be safe from these crimes.
As far as the tribunal went, it was the most difficult time of my life, emotionally. I’d just been nominated a high court judge here by Nelson Mandela, and then this came along, and people said, well, go there, try it out, you can resign after a year. But when I heard the witnesses, and I saw the women who had been gang-raped looking at me with haunted eyes… the people who had lost whole families… little children killed where the shape of their heads showed how they had been banged against church walls, there was no way I could abandon them and go home.
I burst out crying many times at that suffering, but all the time I knew we had to render justice.
JS: That kind of illuminated work, which tells us everything about your compassion and your global reputation, must be assisting the work you’re now doing with the International Commission Against the Death Penalty?
NP: Yes. Well, it’s an international NGO which is really funded by the Spanish government and others based in Madrid, so it’s a bit different, but I have seen how, because of my status from the UN, I am able to get access at the highest levels. It’s given me that credibility.
What we’re trying to do is to change the minds of governments where they might not be using the death penalty but they haven’t abolished it altogether, which means it can still be used any time when governments change. Take Gambia, which suddenly executed nine people in one day. The UN had to step in.
It’s really all about making people see that if you respect the right to life, it means you cannot take someone’s life away under any circumstance. In our case, our Constitutional Court gave 11 opinions in one judgment, and I’ve taken that judgment and shared it with other judges around the world.
The problem is that, on one level, the world sees South Africa as a moral authority, and yet in practice we are really disappointing.
It’s all about having good institutions. If you erode your institutions, you’re going downhill, heading towards conflict.
l The 77th Biennial Conference of the International Law Association, which was held in South Africa for the first time, ended on Thursday at the Sandton Convention Centre, having drawn scholars and legal practitioners together with a focus on African matters
l The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, of which Pillay is a part, starts its series of public hearings on laws passed since 1994, with the first hearings in Abbotsford, East London, on Wednesday and Thursday. KwaZulu-Natal hearings will be held on March 28 and 29.