Why does gender balance matter on the judicial bench?

Female staff and judges of the ACtHPR raise flowers in celebration of International Women's Day 2017 © ACtHPR
This ICC judicial elections cycle, no less than a minimum of 10 female candidates will need to be nominated for the ICC bench to remain a gold standard of gender balance. But what of other international and regional courts?

At its 16th session in December 2017, the Assembly of States Parties (ASP) will elect six new International Criminal Court (ICC) judges.  Five of the six ICC judges departing at the end of 2017 are women. According to ASP guidelines, at least 10 female candidates will need to be nominated to ensure an elections outcome that maintains fair gender balance on the ICC judicial bench.  With the ten weeks’ nomination window opening on 24 April, here’s why the Coalition’s elections campaign this year is insisting on an increased presence of women judges in international justice systems around the world.

 

Why does gender balance matter on the judicial bench?

Increased female participation and representation in international judicial settings can affect much more than we realize.  For some, the argument revolves around the value of a sometimes-different approach between women and men to law, facts and decision-making: “If women and men bring varying viewpoints to bear on judging, and neither sex's approach is inherently ‘correct,’ both are necessary for unbiased process and results.” Others have focused on how such impartiality serves as a fundamental driver of a court’s normative legitimacy.

Creating gender balance allows not only for such legitimacy, but perhaps more significantly for the evolution of law related to certain crimes. As members of civil society have noted, some of the most pressing issues having to do with gender violence have only gained visibility and recognition through judicial decisions influenced by women. With gender-based violence around the globe on the rise, and sexual and gender-based crimes prosecutions gaining footing, it is more important than ever to make sure women retain a strong voice in the emerging case law of the ICC and Rome Statute system.

 

Food for thought: Gender balance catching on?

In Africa, the most represented geographic group in the ASP and often described as a primary driving force in the establishment of the ICC, the recent judicial elections track-record of the African Court of Human and Peoples’ Rights (ACtHPR) offers a positive example of gender-inclusion taking hold of the judicial bench. Ahead of the 27th African Union (AU) Summit in 2016, there were four vacancies to be filled on the ACtHPR bench – only two were filled at that time, both by women.  The elections resumed at the 28th AU Summit in January 2017, where an additional two female judges were elected.  After the 28th AU Summit, the ACtHPR could for the first time in its history boast five female judges out of a possible eleven.  The ACtHPR’s founding treaty, dating back to 1998 like the Rome Statute, envisions as much. The AU remains visibly aligned with some of the Rome Statute’s most important principles toward a fair and effective international justice system.

The European Court of Human Rights (ECtHR) presents a similar trend over the past two decades. The ECtHR has a similar policy to that of the ACtHPR – though not a requirement – to include women on its bench.  According to the policy, only exceptional circumstances excuse the failure to put forward at least one candidate from the "under-represented sex."  Since 1959, 39 women have been elected to this prestigious bench, with 35 of those 39 only assuming the position over the course of the past 19 years.

Unlike the ICC, the ACtHPR and the ECtHR, the International Court of Justice (ICJ) has no provision or policy to include women on its bench. That, however, hasn’t kept the trend from steadily making its mark at the ICJ, also beginning in the 1990s. In the ICJ’s then-50-year history of male judges, Dame Rosalyn Higgins became the first female judge to serve at the ICJ in 1995. Higgins, who would remain the only female judge out of 15 during her 14 years on the ICJ bench, later went on to serve as ICJ President.  In 2017, 3 out of 15 ICJ judges are women. Thus while a serious gender balance gap remains on the ICJ bench, perhaps even this incremental growth points to the increased value given to women’s participation and representation in the international justice system at the highest level.

 

How can you help maintain gender balance on the ICC bench?

The need for gender balance on the bench is paramount to the continued impartial functioning of the ICC, to the perceived legitimacy of the young permanent Court, and to the advancement of human rights law on both the international and national levels. The protection of human rights afforded to all peoples is thus all of our concern.

It is clear that highly-qualified female judges do exist, but they often need voices like yours to ensure they are afforded equal opportunities to contribute, to the benefit of us all. While the Coalition works to maintain fair gender balance on the ICC bench, you can do your part too to make sure that your local and domestic systems do not buck the trend – that gender balance becomes a signature of justice systems the world over.

 

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