McDonald, Gabrielle Kirk 1942–

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Gabrielle Kirk McDonald 1942–

Judge

Appointed to International Criminal Tribunal

Influenced Debate about International Human Rights Law

Gabrielle Kirk McDonald’s colleagues refer to her as an uncommon person with an uncommon passion for justice. Whether she is defending American civil rights in Houston or judging war crimes in The Hague, Netherlands, McDonald creatively uses the rule of law to combat injustice. Now serving as president of the international war crimes tribunal for the former Yugoslavia, McDonald is charting unexplored legal territory and making a global impact in the defense of human rights.

Gabrielle Kirk was born on April 12, 1942, in St. Paul, MN. As a young child she moved with her mother and brother to Manhattan and then to Teaneck, NJ. McDonald was a child of divorced parents, and her mother, her grandparents, and her aunt Beverly Kirk Gayton were her guiding forces during her childhood. While that childhood lacked stability, McDonald’s mother played a particularly important role in the young girl’s life. As McDonald explained to Louis Salome of the Austin American-Statesman, “My mother was a very determined, fiery individual. She believed a lot in me. She really made me believe that I was important, that I ought to do a lot of good things.”

McDonald dedicated herself to fulfilling her mother’s expectations. She studied at Boston University for three semesters before transferring to Hunter College in New York but never did receive an undergraduate degree. However, she went on to graduate cum laude and first in her class at Howard University Law School in 1966. This rank would be only one of the many firsts during her impressive legal career.

Pursued Defense of Civil Rights

Since her childhood days in New York, McDonald was acutely aware of issues of prejudice and civil rights and, from the time she was a teenager, wanted to be a civil rights lawyer. The lessons she learned and the passions she developed on the streets of New York indirectly guided her career decisions. After graduating from Howard, she accepted a position as staff attorney with the NAACP Legal Defense and Educational Fund Inc. in New York. “I wanted to change the world,” she told William Home of The American Lawyer. For three years McDonald canvassed Alabama, Mississippi, and

At a Glance…

Born Gabrielle Kirk, April 12, 1942, St. Paul, MN. Divorced from Mark McDonald; children: Michael, Stacy. Education: Attended Hunter College, Boston University; graduated cum laude from Howard University Law School, 1966.

Career: Staff attorney, NAACP Legal Defense and Educational Fund Inc., NY, 1966–69; practicing attorney, solo practice, Houston, TX, 1969–79; federal district judge, Houston, 1979–88; attorney, Matthews & Branscomb, Austin, TX, 1988–90; of counsel, Walker, Bright & Whittenton, 1991–93; judge, international war crimes tribunal, The Hague, Netherlands, 1993-; Distinguished Visiting Professor of Law, Texas Southern University law school, professor of law, St. Mary’s University School of Law, 1970–94.

Memberships: Board of trustees, Howard University; National Bar Association, founder of its Women’s Division.

Awards: First Equal Justice Award, National Bar Association; nomination, Distinguished Alumni, Howard University; Doctor of Laws Honoris Causa, Georgetown University, 1993; Texas Women’s Hall of Fame, 1993; Ronald Brown International Law Award, National Bar Association, 1997; Doctor of Laws Honoris Causa, Stetson College of Law, 1997; Goler Teal Butcher Award for Human Rights.

Addresses: The International Criminal Tribunal for the Former Yugoslavia, Churchill Plein 12517 JW, The Hague, The Netherlands.

Georgia to assist local residents and lawyers with issues involving school desegregation, equal employment, housing, and voting rights. Moreover, she worked on some of the first plaintiff employment discrimination cases based on Title VII of the Civil Rights Act of 1964. In 1967, for example, she was the lead NAACP staff attorney in the suit against Philip Morris Companies Inc. for its discriminatory seniority system. It was the first significant plaintiff victory under Title VII.

Working for the defense fund, McDonald experienced first-hand the deep-seated prejudice still existent in the United States, particularly in the South. These experiences reinforced incidents from her childhood in New York, where landlords were noticeably disgruntled when McDonald’s biracial mother moved her black family into an apartment building. While she herself was never attacked, her time in the South prompted her to pursue the defense of civil rights. In 1969 she joined her then-husband Mark McDonald, himself a lawyer who cooperated on NAACP cases, in solo practice in Houston. The Civil Rights Act of 1964 had paved the way for lawsuits based on racial discrimination, and together the McDonalds built a reputation for pursuing plaintiff discrimination cases against labor unions and major corporations with significant operations in Texas, including Union Carbide Corporation, Monsanto Company, and Diamond Shamrock, Inc. McDonald’s largest success came in 1976 when she and her then-husband negotiated a settlement with the Lone Star Steel Company on behalf of 400 black workers for $1.2 million in back wages. As Chris Dixie, a management-side defense lawyer in Houston who often opposed McDonald, told The Houston Post in 1978, “she must be the best in the South, if not better.” In fact, she was one of the few African American lawyers to appear regularly in federal courts in Texas in the early 1970s.

McDonald’s efforts on behalf of plaintiffs’ rights did not go unnoticed. In 1978, when a federal judgeship position opened, Texas Senator Lloyd Bentsen nominated her for the bench. In 1979 Jimmy Carter appointed McDonald as a federal district judge in Houston, only the third African American woman to be appointed to the federal bench. While on the bench, McDonald ruled, often quite controversially, on a wide variety of cases. For instance, she upheld as constitutional key sections of a Houston ordinance regulating the location of topless bars, finding that the ordinance did not interfere with the right of free speech. She also sentenced a former Texas Supreme Court Justice who pleaded guilty in a scheme to launder illicit drug money.

During her tenure, moreover, there were instances when discrimination cases appeared on her docket and plaintiff lawyers asked that she excuse herself. Such was the case, for instance, when she adjudicated claims made by Vietnamese shrimpers against the Klu Klux Klan and subsequently ordered the Klan to close its paramilitary camps. She always refused to back down, stating in 1984, “if my race is enough to disqualify me hearing this case, then I must disqualify myself as well from a substantial portion of cases on my docket, … an action that would cripple my efforts to fulfill my oath as a federal judge.” Concurrently, the former U.S. attorney in Houston, Daniel Hedges, praised her for “not permitting her civil rights background to cloud her judgment as a federal judge. She was always evenhanded.”

By 1988 McDonald had tired of her judgeship and resigned from the bench. She was frustrated by her large case load—1,000 cases a year—and her insufficient compensation. She opened the Austin office of Matthews and Branscomb and for the next two years handled management-side employment discrimination defense work. She stayed with the firm for two years but did not enjoy the administrative aspects of running her own practice.

In 1991 she left Matthews and Branscomb and joined the small Austin firm of Walker, Bright & Whittenton as Of Counsel. In 1970 she had taught an administrative law course at Texas Southern University Law School, and concurrent with joining the practice she resumed her teaching responsibilities, this time at St. Mary’s University School of Law in San Antonio. In 1993 the dean at St. Mary’s offered her a one-year teaching post to begin that fall. She accepted the position, but just before the semester began she was asked to consider a judgeship on the International Criminal Tribunal for the former Yugoslavia. Initially, McDonald was surprised by her selection. “What did I know about war crimes and international humanitarian law” she commented to Home, “… and I already had plans … to teach for the next ten years.” Her first response, then, was rather vague. “I said yes in my mind but I told him no, I had plans.” After several days of persuasive conversations, though, she agreed to stand as the U.S. candidate for the position.

Appointed to International Criminal Tribunal

During the selection process, the United Nations general assembly considered 22 candidates for 11 slots. McDonald’s broad experience as a civil rights lawyer, judge, and academic, as well as effective lobbying on her behalf by the U.S. State Department, made her a favorite, and she received the highest number of votes. She would be the sole American on the court and one of only two women. McDonald then spent September and October of 1993 drafting a proposed set of rules of procedure and evidence for the tribunal—all while still teaching full-time at St. Mary’s. She was sworn into the tribunal in November and began to create a procedural code.

McDonald first served as presiding judge in the tribunal’s Trial Chamber II. The tribunal has no autonomous police powers. Rather, the mission of the tribunal itself is to seek justice for the horrors of ethnic and religious persecution inflicted primarily in Bosnia and Croatia. Towards this end, the judges hear evidence, question witnesses, make rulings, and render the verdict and sentence. As McDonald explained the tribunal’s proceedings to Charles Trueheart of the Washington Post, “We admit all evidence that is relevant, and because there is no jury—panels of three judges sit on individual cases—we can cut through irrelevancies and evidence that may inflame the passions of juries.” In the role of presiding judge, she not only conducted evidence and deferral hearings in a number of cases, but she also heard the historic case of one of Bosnia’s most notorious criminals, Dusan Tadic, the first war crimes trial since Nuremberg.

As might be imagined, the atrocities of the crimes committed in the former Yugoslavia have kindled passions in McDonald herself. As she told Kelly Starling of Ebony, one never gets used to the pain. “It’s one thing to hear about the torture. But then you look someone in the face and they tell you about losing a child. As a mother, I can feel that.” To cope with her own sensitivities, McDonald has resorted to smoking and spends sleepless nights reading mystery novels by Black authors or listening to Gladys Knight. “I try not to internalize it, or personalize it,” she recounted in an interview with Essence, “or it would [be] too difficult to go on.” What has helped, she noted, is knowing that her work is ultimately about healing. “Without justice, there can be no lasting peace.”

Not only must McDonald and the other judges contend with emotionally-trying issues, but they must also work within a challenging environment. For one, there are significant language barriers. Trials are conducted in at least French, English, and Serbo-Croatian, with translation often doubling or tripling the time required for a hearing. The judges and lawyers involved, moreover, can represent three or more different legal and judicial traditions.

Furthermore, with practically every ruling, the judges on the tribunal are defining new rules of procedure. Legal precedent for war crimes and genocide is scant at best. Thus, in effect, these judges are creating a body of law that stands to become the legal foundation for a permanent war crimes tribunal being organized under the auspices of the United Nations. McDonald herself is fully committed to the establishment of such a court, which, she declared in 1997, “should not be a mere paper tiger, appearing fierce and powerful from the outside but able to be blown over by the slightest wind of opposition.” Rather, she hopes to establish a system to which nations genuinely commit themselves and which involves an element of compulsion.

Throughout, McDonald has remained committed to protecting the rule of law. As Matt Stearns of The Netherlander, maintained, “The law never let her down. It’s her talisman and her companion.” As McDonald herself further reiterated, “I believe in the rule of law not just intellectually. It’s visceral for me, it’s in my heart and soul … It’s what protects people from anarchy.”

On May 20, 1997, McDonald was re-elected for a second term on the tribunal and on November 19, 1997, was nominated and endorsed by the judges on the court as the president and presiding judge for the next two years. She thus heads the appeals chamber, the tribunal’s highest judicial body. In essence, she is a world spokesperson for curbing human rights abuses.

Similar to her reputation on the domestic bench, respect for McDonald is deep-seated amongst those dealing with the tribunal. As former president Antonio Cassese described her in the War Report, McDonald is “the best that America can offer: she is straightforward, direct, intelligent and hard-working; … she is firm in her conviction; she is principled but she is not jingoistic.” McDonald attributes her eminence to what she terms the result of her “moral commitment to the law and her tenacity and womanly sixth sense about human relations.” As she told Essence, “I’m very direct and firm and have strong feelings about things.” And yet, while she may consider herself as strongly opinionated, she does not let such sentiments blur her judgment. Rather, she harnesses them towards the service of justice. As a former prosecutor at the tribunal, Richard Goldstone, once commented, “I particularly appreciated the balance in her concern for the victims, and especially rape victims, on the one hand, and her concern for the rights of defendants and the importance of fair trials on the other hand.”

McDonald has lofty goals for her tenure as president. “Tribunal,” she told the Plenary Meeting of the Peace Implementation Council in Bonn in December of 1997, “is the golden thread that runs through the cloth of the peace process. It is an attempt to ensure respect for the principles of equality of all human life, the universality of justice and consistency in the application of the law.” As she further explained to the Houston Chronicle, the tribunal must “set an example and develop international criminal procedure that United Nations members may use in conducting their own trials.” “Hopefully,” she continued, “it shows that people charged with war crimes can be tried in a fair, unbiased atmosphere.”

Towards this end, McDonald will ask state representatives to allow persons found guilty by The Hague tribunal to enter their country’s penal system, and she will also push for a program to relocate witnesses who testify. She further wants to improve the efficiency of the court’s procedures. Moreover, she hopes to make the tribunal more visible outside of Europe, and particularly in the United States where there is a lack of understanding and perhaps even of interest in the court’s proceedings.

Influenced Debate about International Human Rights Law

In raising the consciousness of the American public about the workings of the international tribunal McDonald’s civil rights experience comes into play, neatly joining her various professional accomplishments. “One of my major goals as an American,” McDonald explained to Trueheart, “is to point out the obvious: these are groups of people, whose differences are based on ethnicity and religion, engaging in atrocities because of those differences …We [Americans] have such seeds of divisiveness present in our society…. It calls to my mind, as a racial minority, things that have happened in the United States, including a failure to account for past events.”

Moreover, McDonald’s work with the tribunal reminds her of her days with the NAACP. At that time, she recalled, she and her colleagues tried to “act in a creative way to bring about the enforcement of federal laws.” Now on the bench in The Hague, “I’m asking in a creative way to bring about the application of laws—the Geneva Conventions—that have gone unapplied for 50 years.” And, as she told Starling and Essence, “I like to use the law creatively … creating my own legal vision of whom the law should be applied to.”

As recounted by Starling, McDonald believes that the court has already made a difference. “But I hope what we are doing goes beyond the former Yugoslavia, and the world sits up and looks at what happens when instead of honoring our differences, people use them as an excuse to commit atrocities…. Whether the injustice is ethnic cleansing in Bosnia or Americans killing one another over turf, it’s all crimes against humanity.” Through it all, McDonald has dearly missed her children, both law students in the United States, and has struggled at times with the social ramifications of being one of the few blacks in a predominantly white Scandinavian country. For now, though, McDonald believes it is a worthy price to pay for the opportunity “to be on the cutting edge of creating law and enforcing international norms and behavior.”

Throughout her career, McDonald has never sought power or prestige, though certainly she has realized both. Rather, she explained to Salome, “I like the opportunity to grow and develop.” Moveover, she claimed, “I have never had, nor do I have now, a life plan.” Instead, she guides her life by her self-defined credo: “If you’re going to do something, do it the best you can. Give it your all and don’t take shortcuts.”