Gabrielle Kirk McDonald

After graduating from Howard Law, McDonald accepted a staff attorney position with the NAACP Legal Defense and Educational Fund Inc. in New York.[20]

For the next three years, McDonald canvassed Alabama, Mississippi, and Georgia to assist local residents and lawyers with issues involving school desegregation, equal employment, housing, and voting rights. She worked on some of the first plaintiff employment discrimination cases asserting violations of Title VII of the Civil Rights Act of 1964. In 1967, she served as the lead LDF staff attorney in a successful action against a major company for its discriminatory seniority system, which was the first significant plaintiff victory under Title VII since the enactment of the Civil Rights Act.[13]

In 1969, she joined her then-husband attorney Mark T. McDonald in solo practice in Houston, Texas. 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 major corporations and unions with significant operations in Texas. The firm's largest success came in 1976 when the McDonalds won a case against a multinational company and its union on behalf of 400 black workers for $1.2 million in back wages. As Chris Dixie, a union-side lawyer in Houston who often opposed McDonald told The Houston Post in 1978, "She must be the best in the South, if not better." She was one of the few African-American lawyers who appeared regularly in federal courts in Texas in the early 1970s.[21][22]

In 1970, while maintaining her private practice, McDonald began pursuing what would become a lifelong passion: teaching law. Her first venture into academia was running the Legal Aid Clinic and teaching Trusts at Thurgood Marshall School of Law, Texas Southern University. As assistant professor of law, she went on to teach several courses at Texas Southern concurrent with her practice, including Federal Civil Procedure, Evidence, and Employment Discrimination Law. She served as a lecturer at the University of Texas School of Law in Austin, Texas, and as a professor of law at St. Mary's University School of Law in San Antonio, Texas.[19]

McDonald returned to academia after she left the federal judiciary in 1988; she taught Civil Procedure, and Race, Racism & American Law at St. Mary's University School of Law. After she returned to Houston in 1993, she taught several courses at the Thurgood Marshall School of Law, including Legal Methods, Federal Courts, and a seminar on the jurisprudence of Associate Supreme Court Justice Thurgood Marshall.[21]

McDonald was nominated by President Jimmy Carter on February 27, 1979, to the United States District Court for the Southern District of Texas, to a new seat created by 92 Stat. 1629. She was confirmed by the United States Senate on May 10, 1979, and received her commission on May 11, 1979, when she was 37 years of age. She was the first African-American appointed to the federal bench in Texas and only the third African-American woman to be appointed to be a federal judge in the United States. Her service was terminated on August 14, 1988, due to resignation.[12][22]

During her tenure on the bench, McDonald ruled on a number of high-profile cases. One of these cases involved Vietnamese shrimpers and the Ku Klux Klan. In that case, the Grand Dragon of the Klan attempted to disqualify her from the case, arguing that her race would prevent her from being impartial. She refused to recuse herself, stating in 1984, that "... if my race is enough to disqualify me from 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." She told the defendant, during the highly publicized hearing in a courtroom that included robed Klansmen, "You are not entitled to a judge of your choosing but one who will be fair. And I will do that." At the time, Daniel Hedges, United States attorney for the Southern District of Texas,[23] praised her for "not permitting her civil rights background to cloud her judgment as a federal judge. She was always evenhanded."[24]

After resigning from the bench in 1988, McDonald joined the law firm of Matthes & Granscomb and in 1992, became counsel to Walker & Satterhwaite. She served as special counsel to the chairman on human rights for Freeport-McMoRan Copper & Gold, Inc.[17]

In February 1993, the community of nations, through United Nations Security Council Resolution 808, decided to establish a war crimes tribunal to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991.

The Department of State submitted her name to the United Nations as a judge to the newly formed International Criminal Tribunal for the former Yugoslavia (ICTY), which had been created by another Security Council resolution in May 1993. The United Nations General Assembly selected a total of eleven judges, including McDonald, to serve on the Tribunal; Judge McDonald was the sole American on the court and one of only two women. She was elected by the largest number of votes.

In late 1993, McDonald and her colleagues began drafting the Tribunal's rules of procedure and evidence and following an intensive two-month rule-drafting period, in February 1994, the judges adopted the ICTY's Rules of Procedure and Evidence.[25][26]

She first served as presiding judge in the Tribunal's Trial Chamber II[27] and in this role, conducted evidence and deferral hearings in a number of cases, and also heard the historic case of Duško Tadić, the first war crimes trial since the Nuremberg Trials, the series of military tribunals held by the Allied forces of World War II that prosecuted, in 1945–46, members of the political, military, and economic leadership of Nazi Germany.

Since the Tadić case was the Tribunal's first trial, the Trial Chamber was breaking new ground. As McDonald stated in a later interview, this gave her and her colleagues the opportunity to "use the law creatively". During the course of the trial, a number of important procedural and other issues had to be resolved, including whether the Tribunal was bound by the decisions of other international bodies, how to maintain the balance between the need to protect victims and witnesses and sustaining the accused's right to a public hearing, laying down special rules for evidence from victims and witnesses in cases of sexual assault, general principles for a grant of anonymity to witnesses, providing guidelines relating to the safe-conduct of witnesses, and to the provision of testimony be video link; and whether hearsay evidence was to be admitted.[28] McDonald's and her colleagues' rulings on all these issues played an important part in establishing precedents for the Tribunal's practice and procedure.

The Tadić trial lasted almost a year during which Judge McDonald and the panel she presided reviewed hundreds of documentary evidence and heard from numerous witnesses. In May 1997, Tadić was found guilty of committing crimes against humanity, namely, persecution on political, racial and/or religious grounds, and inhumane acts; violations of the laws or customs of war, namely, cruel treatment. The ICTY's findings in the Tadić case were significant in that they proved under international law the Serb policy of "ethnic cleansing" and set a precedent for further prosecutions. International commentators noted that, as the presiding judge, McDonald skillfully balanced her concern for the victims of the war crimes, especially rape victims, with scrupulous fairness and respect for the rights of the defendants. McDonald also presided over Trial Chamber II in evidentiary hearings in the Ivica Rajić case,[29] the deferral hearings in the Lašva Valley[30] and Dražen Erdemović cases;[31] she was also in charge of proceedings in the Slavko Dokmanović case,[32] presided over the hearing of preliminary motions in the Čelebići[33] and Blaškić cases,[34] and sat as a member of the Appeals Chamber in the Erdemović case.[35]

On May 20, 1997, McDonald was re-elected for a second term, and on November 19, 1997, was nominated and elected by her fellow judges as the president of the ICTY.[36][37]

On her election, she set several goals for the International Tribunal: the first concerned the infrastructure of the Tribunal – one courtroom was not sufficient for the Tribunal's functioning. Soon, the Tribunal's premises were adapted to include two more Trial Chambers. Second, there were insufficient judges to try the growing number of persons that were held in detention. McDonald went to the United Nations Security Council and successfully argued for the hiring of three more judges. Third, was to secure changes in the rules relating to pre-trial procedures because of the increasing number of detainees and the length of trials. Thus, the Rules of Procedure and Evidence were amended to provide for stronger case management by the judges during the pre-trial phase of the proceedings.

She established a Working Group on Trial Practices with a mandate to make practical recommendations that would reduce the length of trials. She also promoted the "Outreach Programme"[38] to explain the work of the Tribunal to the peoples of the former Yugoslavia.[39][40]

The Appeals Chamber for the International Tribunal also functions as the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR).[41] As president, she thus presided over the Appeals Chambers of both Tribunals and made a number of visits to Arusha, Tanzania, the seat of the Rwanda Tribunal.[42]

One of her last acts as president was to preside over the Appeals Chamber's first decision in the Jean-Bosco Barayagwiza case, which concerned the rights of the accused in the context of numerous pre-trial delays.[43][44]

When President McDonald left the Tribunal in 1999, she had led the Tribunal through a pivotal stage in its history as it made the transition to a fully functioning international criminal court. The late Antonio Cassese,[45] her colleague and the first president of the ICTY, wrote in the War Report that she "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."[46]

In 2001, McDonald was called to serve another historic tribunal, the Iran-United States Claims Tribunal,[47] as one of three American Arbitrators. The International Claims Tribunal, also based in The Hague, was established by agreement between the United States and Iran in 1981, and has, since then, adjudicated claims by United States nationals for compensation for assets nationalized by the Iranian government, and claims by the governments against each other.[48] McDonald is the only woman among the panel of nine arbitrators.[49]