Breaking the Bonds of Judicial Patriarchy at the International Court of Justice: States Must Act Now
By J. Jarpa Dawuni, Ph.D.
Executive Director, Institute for African Women in Law
In the words of UN Secretary-General, António Guterres, “we must urgently transform and redistribute power, if we are to safeguard our future and our planet. That is why all men should support women’s rights and gender equality. And that is why I am a proud feminist.”
The recent confirmation of Judge Amy Coney Barrett to the United States Supreme Court has galvanized new debates on the issue of gender and representation in high courts. What has gone largely unnoticed in popular media is the issue of women and representation in international courts. What does it take to be an international court judge—who just so happens to be a woman? Are international law and international judicial selection mechanisms equitable for all sexes?
On November 11, 2020, elections will be held simultaneously by the United Nations Security Council and the General Assembly to fill five judicial positions on the ICJ. In a communique issued on June 29, 2020, the UN Secretary-General listed the names of the eight final candidates—only three are women, representing 38% of the candidate list. The three women candidates are Julia Sebutinde of Uganda, Hanqin Xue of China, and Maja Seršic of Croatia. As one of the principal organs of the United Nations, member states must ensure that the selection processes at the ICJ are in line with the plethora of efforts under the UN to achieve gender equality. Gender diversity at the ICJ matters for the simple reason that women make up at least half of the global population; women have the qualifications and merit for international judicial positions, and women must be given equitable opportunities through transparent processes of nomination at the national level, and election at the international level.
The bonds of global patriarchy have endured on the bench of the ICJ since it came into force in 1946. It was not until 1995 that Dame Rosalyn Higgins of Great Britain joined the bench as the first woman judge. In 2010, Judge Joan Donoghue of the United States and Judge Hanqin Xue of China both joined the bench, were soon followed by Judge Julia Sebutinde of Uganda in 2012. Each of the historic four women judges on the bench were the “first” in their region of the world. If elected to the bench of the ICJ, Maja Seršic will be the first woman from the Eastern Europe group of states to sit on the court, as compared to 14 men before her.
Data source: ICJ
As the International Court of Justice (ICJ) is poised to celebrate its 75th Anniversary in April 2021, it is noteworthy that historically, out of the 108 judges since the court was established, only four have been women, representing a woeful 3.7%. Currently, women represent only 20% of the 15 judges on the bench of the ICJ. Gender parity at the ICJ should be of concern to the world for the simple reason that the often dubbed “world court” remains a highly patriarchal institution, thereby prompting some international law scholars to question the legitimacy of the court.
Data source: ICJ
Regional blocs have work to do and attempts to diversify the bench must begin with efforts at the national and regional levels to support the nomination and election of women candidates. To date, women are yet to be elected as judges from the Latin America and Caribbean, Middle East and Eastern Europe groups. While the West Europe group has had the largest number of judges on the court (24), it has had only one woman, representing 4% of the total number of judges from that region.
To date, the United Nations' principal judicial organ remains one of the most imbalanced international courts when it comes to gender parity. This historic imbalance has prompted scholars and advocacy groups to campaign for diversifying the ICJ bench. The United Nations must consider gender-sensitive processes that give due consideration to the merit of women candidates, develop independent transparent processes for nomination and election, and acknowledge the urgent need for equitable gender representation in international organizations.
Gender diversity at the ICJ is a matter of urgency for the United Nations and the world.The forthcoming election is an opportunity for member states of the United Nations to affirm their commitments on gender equality. J. Jarpa Dawuni
Judicial selection mechanisms to international courts remain a gendered process, and women candidates must contend with their intersecting identities and the gendered power structures in selection processes. The factors leading to these gendered processes in international law can be partly identified in the seminal work by Charlesworth et.al, which examined the general impact of hegemonic patriarchy on women’s participation in international law. With specific reference to international courts, Stéphanie Hennett-Vauchez's comparative study of women judges in Europe shows the role of shifting definitions of merit when applied to women.
Other scholars such as Mackenzie et.al have examined issues arising from nomination at the domestic level and election at the international level—interlinked processes which do not always favor women. These studies and many others have demonstrated unequivocally how qualified women candidates must navigate the enduring patriarchal nature of international law. These gendered processes include shifting norms on how merit is measured, the persistence of “old boys” networks, and the political weight of powerful nation-states that often get thrown behind male candidates at the national nomination stages.
The United Nations must affirm its commitments on gender equality contained in multiple legal instruments at the international level. The election of international court judges should be of concern to all members of the international community. As a principal judicial organ of the United Nations, the bench of the ICJ should symbolically reflect the world’s gender diversity. Gender diversity at the ICJ is a matter of urgency for the United Nations and the world. The forthcoming election is an opportunity for member states of the United Nations to affirm their commitments on gender equality. These commitments can be found in Goal # 5 of the UN SDGs, Article 8 of CEDAW on the right of women to participate in international organizations, and the plethora of programs undertaken by the UN to promote gender equality. The election of international court judges must be of concern to all members of the international community.
The UN must reform its judicial selection processes, at the very least, by taking a cue from the gender equalizing provisions of the Rome Statute, which established the International Criminal Court (ICC). The UN can also benefit from the strategies adopted at the African regional level in the election of judges to the African Court on Human and Peoples’ Rights (ACtHPR) which is currently the most gender-balanced court in the world. In electing judges to the ICJ, member states of the UN must live up to the global calls for gender equity, equality, inclusion, diversity and representation.
Member-states of the United Nations must live up to their espousal of gender equality by supporting the candidature of the three women candidates in the forthcoming elections. Promoting gender diversity is simply the right thing to do. It is time to break the bonds of global patriarchy which have for so long hindered the rights of women judges to be equitably represented on the bench of the ICJ. In the words of UN Secretary-General, António Guterres when he notes “we must urgently transform and redistribute power, if we are to safeguard our future and our planet. That is why all men should support women’s rights and gender equality. And that is why I am a proud feminist.”