Gabrielle Kirk McDonald
She has never held political office. She is not the head of a multimedia entertainment empire. Yet, Gabrielle Kirk McDonald may be the most powerful African American woman in the world. McDonald serves as president--in effect, chief justice--of the International Criminal Tribunal for the Former Yugoslavia and oversees the appeals chamber for the International Criminal Tribunal for Rwanda. These twin tribunals were created by the United Nations to address the atrocities perpetrated against civilians in those two countries. The decisions made by McDonald and these tribunals are creating legal precedents that are changing the way the world deals with violence and bloodshed.
McDonald’s office inside a former insurance building in The Hague is decorated with flags of the United Nations and of her adopted state of Texas. There is even a wooden wagon train in one corner, a Dutch flea-market find she says reminds her of home.
McDonald, 56, is a tall, elegant woman who laughs easily and often and seems to mother everyone in her circle--whether law clerk or journalist--perhaps to make up for the fact that her two grown children, Michael and Stacy, are back in the States.
Her lifelong passion has been using the rule of law to fight injustice. Growing up in the mid-1950s, she saw her mother stand up to New York City landlords and beauty operators who didn’t want blacks on their property. That first-hand brush with racial prejudice led her to law school, where she graduated first in her class from Howard University. She joined the crusading young band of lawyers at the NAACP Legal Defense and Education Fund, where she won the first major legal victory against employment discrimination under the 1964 Civil Rights Act.
In 1979, she was appointed a federal district court judge, the first African American on the Texas federal bench. Her highest-profile case involved harassment of immigrant Vietnamese shrimp fishermen by the Ku Klux Klan. During the trial, she and her family received death threats and one-way tickets to Africa.
In 1993, the U.S. State Department recommended her for one of the 11 judicial posts at the new Yugoslavia tribunal. She was elected by the U.N. General Assembly with the largest number of votes and was chosen to preside over the tribunal’s first trial--the first time an individual had been tried by an international court in 50 years.
These days, McDonald’s desk is stacked high with paperwork. She absent-mindedly wears a rubber band around her wrist. “Not behavior modification,” she insists, “to keep her from smoking.” But her greatest frustration isn’t the busywork. It’s the cloak of invisibility that surrounds the tribunal, especially in Yugoslavia. McDonald has sent researchers to conduct surveys on public perception of the tribunal, hosted visits by Yugoslav legal professionals to tour its offices in The Hague, even offered to write a weekly column for Yugoslav newspapers--anything to get the word out in the former Yugoslavia about the tribunal’s work. Now, she’s lobbying for a budget for outreach. McDonald spoke to The Times in her office at the tribunal.
Question: Is a war-crimes tribunal the best way to reach reconciliation?
Answer: It may be too soon to say whether this is the best way to do it. It may even be too soon to say whether this is even an appropriate or realistic way to bring about reconciliation. But I can tell you, the theory is, and I believe in it, that you focus on personal accountability, individual accountability. Again, borrowing from the Nuremberg concept, that in order to avoid group stigmatization, you look at individuals and try individuals. . . . Plus, building a historical record of what transpired during the conflict, what the causes of the conflict were, will hopefully bring about closure. . . .
What happens is that people engage in behavior over a long period of time and then they will stop it for some reason--either they’ll stop it voluntarily or they’re required to stop it. Then the attitude is, “Well, its over. Now, let’s forget about what happened. Past is past, let bygones be bygones.” If you are to have a lasting relationship and an honest relationship and true reconciliation and a forgiveness and a tolerance of people’s differences, there has to be an acknowledgment of what happened. . . .
It’s important for the people in the former Yugoslavia to understand our tribunal, to believe that it’s fair, to believe that the decision-makers [the judges] are fair, that we don’t have a stake in the controversy, that we’re making our decisions based upon evidence that’s deduced during the trial process, that involves a very active participation by defense counsel and that it’s not simply a presentation of evidence by the prosecutor to the judges and the judges accepting them.
Our decisions are to help to bring about reconciliation, but our decisions cannot do that--even if you assume they can do that--if there isn’t a belief that the tribunal is fair, that the decision-makers are fair. And that’s why I’m so interested in the outreach or what I call the “awareness project.”
It can be done, but it would be naive, or I’d be a judicial romantic if I felt that the tribunal, sitting hundreds of miles away, can, in one fell swoop, with a few decisions, bring people together and resolve their differences and end this cycle of recrimination. . . . In the final analysis, it has to be done by people. They, themselves, have to want this. They, themselves, have to be willing to take the steps that are necessary to go forward.
But, as I said, if you don’t give them something, then it’s more difficult for them to go forward. And what we’re giving them is an acknowledgment of what happened. What we’re giving them is justice.
Q: You talk about creating a historic record. Why is this important?
A: Theoretically, if you know what led up to the conflict, how people managed to get in the state that they were in, then we, as a world community, can be on guard in the early stages of such behavior so as to provide the necessary assistance to stop it before it escalates into the horrendous violence that we’ve seen. It teaches us a lesson. Of course, that assumes that people want to learn from this lesson that is right before them, because how many times do we have to repeat this?
Q: You’re the president of a court system without its own police force, a court that must rely on the international community to make arrests and honor subpoenas. Is this frustrating for you?
A: That is the way it is, unfortunately. We are an international court. We’ve been given authority by the [U.N.] Security Council. States are required to comply with it. But the relationship in international law between supranational bodies and states is such that states still have state sovereignty and there is only so much you can do. . . .
If we had a police force, yes, it would make it easier. We would just send off the [tribunal’s] police force to make arrests, but that just won’t happen in 1999 . . . or in the early 2000s. . . .
States cling steadfastly to their sovereignty and are reluctant to give it up. So I don’t see a police force for the tribunal or for the permanent ICC [International Criminal Court]. Its a fact of the beast, I suppose, that we just have to accept. Some days, it’s frustrating, but I suppose by now I’m accustomed to it.
Q: Are you satisfied with the cooperation of nation-states?
A: No, I’m not satisfied because half of our indictees are at large. With them being at large, they infect the whole community. Someone who is indicted, and someone who members of the community see can remain there basically with impunity, is an erosion of our attempts to build up the rule of law in the former Yugoslavia. . . .
But it’s made me less frustrated to see that SFOR [the North Atlantic Treaty Organization-led Stabilization Force] has come in by default to execute the arrest warrants. And that then has led to the voluntary surrenders of individuals, because they know then that their ability to hide and their ability to stand up and just basically thumb their nose at the tribunal is diminished.
Q: The most severe penalty the Yugoslav and Rwandan tribunals can hand down is life in prison. Yet, national courts inside Rwanda can and have sentenced people to death. Does this send a mixed message to the victims of genocides?
A: If you assume that an international tribunal wants to apply the highest standards of human rights, and wants to set an example, and it should encourage other states to achieve the highest level of human rights, and you believe the taking of a human life is a violation of the most basic human rights, then you would say that what the tribunal is doing is setting an example as to how people should treat each other. And that murder should not be tolerated. And that killing by a state is murder, and that won’t be tolerated. All it does is to encourage the cycle.
Just because you execute someone is not the end of it. There are a number of reasons for a sentence. A sentence can be for deterrence, rehabilitation, revenge, whatever. Certainly the death penalty satisfies the revenge motive. Would it satisfy the deterrent motive? I doubt it. . . . I don’t think they will stop and think, “Well, I won’t commit this horrendous offense because I can face the death penalty. But if it’s just life imprisonment, then, OK, I’ll just go and do it.” No, I don’t think so.
Q: Last summer in Rome, 120 countries voted to approve a treaty that would create a permanent International Criminal Court. Were you disappointed that the United States was one of the seven countries that voted against the treaty?
A: I’m disappointed the United States was not one of the signatory parties. . . . It’s important for the United States to be a part of the world community. The United States is the superpower, and its absence is sad to me.
Q: One argument for a permanent court is that it can deter future genocides. Can a permanent International Criminal Court act as a deterrent to future Radovan Karadzics?
A: It certainly will make political leaders stop and think. That’s for sure. Will it make them stop absolutely? I don’t know. It’s important, though, for the world community to put into effect what they believe. And this is what the court is: It’s creating a mechanism to carry out what we have professed to be so very important . . . that we, as a world community, not only consider this behavior to be intolerable, but we now believe it should be punished.
Q: You often say there’s a link between America’s struggle for civil rights and the current battle for international human rights. What do you mean by that?
A: I went to law school to be a civil-rights lawyer in the turbulent ‘60s. That’s what I wanted to be, and I was fortunate enough to do it. I believe that the rule of law is what . . . allows us to live with each other without destroying each other--either physically, through violence, or by preventing someone from fully participating as a citizen. . . . The way to bring about inclusion, the way to vindicate these wrongs, is through law.
Being a minority, I know that’s the only way it can be done. You can’t snatch power from someone. You can’t snatch rights. Before the Civil Rights Act of 1964, there were sit-ins, but you couldn’t demand to be served a cup of coffee or to stay in a place of public accommodation.
The alternative is to bring that about through violence. To go down there and do what? Kill someone? Bomb or destroy the whole hotel? That’s not an answer. I say it’s not an answer. (She laughs.) And I’m laughing about it. But, you know what? You think about it, there’s a whole world out there of many groups who believe that’s the answer.
We, in the United States, should be very proud that we have this history of the rule of law. Thurgood Marshall himself believed, he was the advocate: Let’s use the Constitution, let’s use this structure that we have to gain our rights.
I have seen what it’s like to live in a community where you are treated differently because of something over which you have no control. And I have seen the lack of empowerment. And I have seen the discussions of how to gain empowerment. To me, the only option is through the rule of law.
Q: How do you make the case to Americans that it is in their interest to care about finding resolutions to the ethnic conflicts in Rwanda and Yugoslavia?
A: If we don’t show outrage ourselves, and care about it for ourselves, then, it seems to me, we are saying that behavior is acceptable.
We have a stake because we’re human beings, we’re part of humanity. We have to care and do our share, but also make sure that we’re alert in our community not to allow this divisiveness to grow. That we stop it before it begins. That we have the courage to speak out and say, “That’s wrong.” And we can learn because of the extremism of these conflicts where this can take us.