Navanethem “Navi” Pillay has been a prominent thorn in the side of repressive regimes her entire career. As a freshly-minted lawyer in the mid-1960’s, she defended anti-Apartheid activists in her native South Africa and helped publicise the inhumane conditions political detainees were being subjected to.
After stints as a judge of the High Court of South Africa, the International Criminal Court (ICC) and as President of the International Criminal Tribunal for Rwanda (ICTR), Pillay was appointed the UN High Commissioner for Human Rights in September 2008. Then, as now as the 16th Commissioner of the International Commission Against the Death Penalty, Pillay has remained a ubiquitous presence on the international scene calling out human rights abusers and amplifying the voices of their victims.
As part of the #MyJustice series, Justice Hub recently spoke with Pillay when she visited in The Hague and sounded her out on her work exposing rights violations in North Korea, her thoughts as the Rome turns 20 and much else:
Justice Hub: Last year the International Bar Association (IBA) commissioned you and two other judges to look into evidence about crimes against humanity committed by officials in North Korea. What did you find?
This is what you would call a civilian panel. It didn’t have the power of a state or an international institution but, nevertheless, the International Bar Association is a very serious international body of lawyers and their War Crimes Committee had the idea of perhaps following up on the Kirby Commission report [ on Human Rights in the Democratic People’s Republic of Korea]. That Kirby Commission had found very serious violations and recommended that the matter be investigated and referred to the International Criminal Court (ICC).
I think that Justice Kirby was very shocked by what he had heard. He was a judge for more than forty years in Australia yet he said that this was the worst that he had seen. He wanted some kind of follow up which inspired IBA to set up the panel. They invited three of us. We are all former judges. I chaired the panel together with Thomas Buergenthal who was an ICJ (International Court of Justice) judge and Mark Harmon who was a judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC).
We then heard live evidence from witnesses who had been prisoners and then had escaped. We also heard from prison wardens who had implemented and maintained this control and ill-treatment of prisoners, as well as some diplomatic figures and one former ambassador who had defected. The IBA’s mandate to us was to focus on the prison camps and to see whether the conditions there constituted crimes against humanity.
Justice Hub: What was your conclusion?
We made our conclusions from hearing evidence as well as from seeing satellite pictures. Let me say that North Korea’s response has always been that they do not have these camps anymore. They say that the camps were there in the distant past but not now. We saw satellite pictures of current activity and also heard witness accounts.
Our conclusions are arrived at from checking the facts. As judges, we are trained to examine the facts and to look for support. We looked for facts and matched them to the elements of the crimes against humanity. We found evidence of extreme ill-treatment and starvation of these people. The fact is that they were held without trial and they were not told why they’re being held, only that they can never get out of there.
Many remain there. There were many deaths out of hunger and ill-treatment and the lack of healthcare, medication and so on. We felt that these constituted crimes against humanity as we know them under the Rome Statute [founding document of the ICC] and the ad hoc tribunals.
Justice Hub: Do you see any possibility, in any form, of someone being brought to account for these crimes?
Well both the Commission and this panel’s findings, if I can say so myself, have been tested and done by independent professionals. They should be taken seriously. If there is an international investigation and prosecution either by universal jurisdiction or direction of an international institution, then that’s a start that has happened.
Clearly, you cannot ignore this. I should tell you that when Michael Kirby’s Commission report was delivered at the UN General Assembly there was extreme shock and almost unanimous condemnation of North Korea.
Navi Pillay during the interview (Photo: Janet Anderson/Justice Hub)
Justice Hub: But not unanimous enough to get a Security Council referral to the ICC?
Well, it was at the General Assembly. They don’t have those powers. But North Korea gave us various undertakings. Remember, even China allowed this commission to proceed so it will also be relevant as they speak over peace or nuclear war. I hope this comes up. This is a record not only of human rights violations but of crimes being committed.
Justice Hub: We now see the possibility of some kind of high-level meeting between the U.S and the North Korean leadership. Do you ever imagine these kinds of crimes coming up in a discussion like that?
The international community seems to be dealing with matters in silos. Human rights violations are the business of the Human Rights Council. The Security Council? “Oh, they only deal with international peace and stability”. Things come to a head when they are having high-level deliberations for the very the first time focused on the nuclear threat.
From what I’m following, like statements by the Japanese Prime Minister and I’ve been to Korea myself, they are not focusing on these prison camps or the extensive human rights violations. That’s why these reports are important. They have been done by reputable bodies such as IBA and they’ve been widely publicized.
I am aware that at the launch of the report in December 2017, the US administration asked for a briefing. Of course, they were just referred to the report. But there was interest. There will be plenty of opportunities to raise these issues at the high-level meeting because they [the U.S] should care about the human rights of people inside North Korea as well as security issues in the region.
Justice Hub: We’re talking today here in The Hague – the city seen as the center for international justice. How do you see the health of the courts and ideals behind them? Are things going well?
The Rome Statute is just a 20-year-old development, a drop in time. A lot has happened in the 20 years to my mind. Everybody is struggling with challenges but the achievements are so powerful. I mean victims have a direct say in proceedings. That doesn’t even happen in national jurisdictions. Crimes against women have been properly categorized in the Rome Statute.
Those crimes, although they have been happening from time immemorial, have not been recognized as crimes by states. So they don’t have a crime such as sexual slavery. If you recall the Austrian father [Josef Fritzl] who imprisoned his daughter some time ago and there was also the [Ariel Castro kidnapping] case in Ohio, both cases should have been charged as sexual slavery because the women were abducted and kept. Instead, the abductors were charged with abduction or rape or murder.
The serious crimes that happened against women are not properly documented in the national jurisdiction but are now in the international jurisdiction. I am very happy to note that international law is influencing the national laws for the protection of victims.
Justice Hub: What further embedding of international law would you like to see? What is missing?
What is missing is collective action. What’s obstructing is individual interest and regional interest. States are now forming into their own little pockets in different formations and they’re just looking after their own interest. Sometimes even when there’s a terrible violation, just because they belong to this group of friends, they would vote against it.
To my shock, South Africa, democratic South Africa, has done that in saying that there should not be an inquiry into the Sri Lankan conflict because that’s an internal matter. Can you imagine if apartheid was seen as an internal matter by the international community and the world’s population? We would still be sitting there suffering under apartheid.
I think there are achievements and there are lessons learned. I especially like the alertness of civil society. Nothing ever happens unless civil society pushes for it. I also want to thank journalists and the media in general for keeping the light on.
This interview was conducted on the sidelines of a conference in The Hague organised by the International Bar Association War Crimes Committee The Hague.
Main Photo: Screenshot/Voices of the Tribunal/UNICTR