The future is female: Gender representation in international courts and tribunals
In an age when we are striving to achieve gender equality in all aspects of life, the underrepresentation of women in international courts and tribunals is an issue.
Worldwide the number of women law graduates is relatively high, hence one would assume that they would have a greater presence in international courts and tribunals. However data has shown that this is not the case. In 2012, of the 21 international courts and tribunals, 26% of judges were women. By mid-2015, women made up 20% or less of the bench. In this day and age when we are striving to achieve gender equality in all aspects of life, the fact that women are so underrepresented in international courts and tribunals is an issue.
Importance of gender representation
Given the number of women in Head of State, Chief Justice and government Minister roles, it could be expected that there are qualified women for the role of judges in international courts and tribunals. Overall, the number of women in international courts and tribunals is significantly lower than men. As mentioned above, only 20% of judges in international courts and tribunals are women. In some international courts and tribunals, women are significantly outnumbered. For example, in the Permanent Court of Arbitration 90% of the members are male leading to them being labelled an “old boys club”.
Gender representation matters firstly because it is essential for the legitimacy of courts and tribunals. It is important to have legitimacy in international courts and tribunals and this is achieved when adjudicators are impartial and unbiased. If bias exists, it undermines fairness, and this is closely linked to the authority that the court or tribunal exerts. International courts and tribunals are perceived as being legitimate when they are fair and unbiased, when they interpret and apply norms that are consistent with what states understand the law to be and are transparent and democratic. Moreover, given that international courts and tribunals exercise public authority by interpreting and shaping international law, to do this in a way that is legitimate requires both men and women to contribute. Legitimacy of the court includes factors of transparency, accountability, participation and representativeness. Representativeness requires a gender balance on the bench. Thus the public perception of a court or tribunal carrying out the role that they have been tasked with relies on the idea that courts and tribunals do so in an impartial and unbiased way. Given that women make up 50% of the world’s population, it is reasonable to expect that both men and women should be involved in judicial decision making so that the perception of the courts’ and tribunals’ work is balanced.
In addition, gender representation matters in international courts and tribunals because it has been suggested that women may take a different approach to the way they handle disputes. Whilst it should be noted that few studies exist due to the lack of women on the benches in the first place, a few examples do exist to support this. ICTY (International Criminal Court for the former Yugoslavia) Judge Patricia Weld has said that a judge is “the sum of her experiences and if she has suffered disadvantages or discrimination as a woman, she is adept to be sensitive to its subtle expressions or to paternalism”. ICC (International Criminal Court) Judge Navanethem Pillay has said that “women don’t decide in a different way, they come with a particular sensitivity and understanding”. Lady Baroness Hale has said that “women bring different perceptions to the task of fact finding which is what most judges do much of the time”. For example, the ICC Statute requires both individuals with legal expertise in violence against women and children as well as a fair representation of female and male judges on the bench. As women and children victims often fall under the jurisdiction of the ICC, there is a recognised need for those experienced in these areas in addition to a balance of genders on the bench and that this is the best approach for approaching these cases. The ICTY and ICTR (International Criminal Tribunal for Rwanda) statutes were amended to add ad litem judges and increase the percentage of women ad litem judges and this was based on the rationale since many women were victims in these cases, they should be able to judge the perpetrators. For example, one study showed that ICTY panels with female judges imposed more severe sanctions on defendants who assaulted women while male judges imposed more severe sanctions on defendants who assaulted men. This shows that gender representation matters because the difference between men and women and each judges’ own life experiences may influence the way they interpret the law and their judicial decision making. Despite the shortage of data on this issue, it is possible to see that a lack of gender representation harms the perception of legitimacy in courts and tribunals because there may be a perceivable imbalance on the bench. Such an imbalance leads to the perception that society as a whole is not represented properly.
There are two ways in which the gender balance on the benches of international courts and tribunals could be improved. First, by implementing aspiration statements for gender balance on the bench and quotas. Evidence shows that the international courts and tribunals that have aspiration statements or quotas have in fact a greater representation of women. On eight international courts and tribunals where there are no such aspiration statements or quotas, only 15% of judges were women mid-2015. However, in the five courts and tribunals that did have aspirational statements or quotas, 33% of judges were women mid-2015. For example, the ICC requires a fair representation of women among its judges. The European Court of Human Rights has adopted a number of resolutions and guidelines that aim to improve gender representation; for example, by making sure that candidates of both sexes are nominated by the Council of Europe member states. Data has shown that such actions have resulted in a positive increase in gender representation where women have outnumbered men on the benches of the ICC and women made up 38% of the bench of the ECtHR in 2012. These statistics show that such measures are a successful way of increasing gender representation. Furthermore, implementing such measures may cause a ripple effect. For example, it has been suggested that once the ICC had implemented these aspiration statements, the ICTY and ICTR also added gender representation provisions to their statutes for ad litem judges. So in a way, the ICC has influenced the other tribunals to makes changes to increase the number of women. Thus if, for example, the ICJ (International Court of Justice) were to make such changes to the gender imbalance, it may be an effective way of influencing other courts and tribunals to do the same.
Second, improvements concerning gender balance could be made in the procedure for the appointment of judges. It has been suggested that the national nomination processes for most international courts and tribunals may contribute to the gender imbalance because these processes have a closed nature and lack transparency. Nomination for judicial roles should be made on a merits base. It is, however, apparent that the actual nomination and selection procedures for most international courts and tribunals is opaque and only known to insiders. It has even been suggested that a judicial appointment may be the result of political loyalty or a way to advance political agendas. One example is the nomination and selection procedure of the ICJ, which requires judges to be “elected … from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices”. However, there is little detail on the actual nominations and elections of such individuals. Whilst these individuals are chosen from among legal academics and judicial officers in their own state, it is not clear how exactly these individuals are chosen. Even though data has shown that women are present on the benches of domestic courts, they are still not appearing enough on the benches of international courts and tribunals. It is also apparent that a role at the ILC (International Law Commission) may also be a decisive factor for a position on the bench, as four of the last five judges of the ICJ spent time at the ILC. However, not many women have served on the ILC. The connection between the ILC and the ICJ is not clear and if the procedure was more transparent, it would be evident what weight a position on the ILC gives to a candidate who is being nominated for a position at the ICJ. If there was more transparency and clearer rules about how nomination procedures are carried out, it would be possible to nominate candidates based on merit rather than factors such as their participation on the ILC and other bodies. Thus, transparency in the election process would contribute to achieving a gender balance. Furthermore, improving the nomination and selection procedures may provide greater opportunities for those who are qualified for the position, but who traditionally may be excluded. This, in turn, could enhance the legitimacy of these international courts and tribunals.
Women make up almost half the world’s population, however history has shown that their place on international courts and tribunals has been far from representative. Whilst today women do occupy more positions on international courts and tribunals than many years ago, men still take up far more positions. However, to achieve any sort of improvement requires proactive measures. In fact, the reason the ICC Statute has a requirement for gender representativeness is because groups advocated vigorously for it during the drafting stage. In comparison, there has been little to no action on improving the dismal figures of gender representativeness on the ICJ. Gender representativeness on the benches of international courts and tribunals is an issue because it affects the legitimacy of the court or tribunal, both from a normative and sociological perspective. However, this issue can be alleviated with aspirational statements, or quotas and a more transparent nomination and selection procedure.
Nienke Grossman, “Shattering the Glass Ceiling in International Adjudication” (2016) 56 Va. J. Int'l L. 1, 9.
Nienke Grossman, “Achieving Sex Representative International Court Benches” (2016) 110 Am. J. Int'l L. 82.
Leigh Swigart and Daniel Terris, “Who are International Judges?” in Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014) 624.
Nienke Grossman, “Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?” (2012) Chi. J. Int'l L. 647, 673.