Gender and the international judge: Towards a transformative equality approach

Abstract

There is a dearth of women judges sitting on international courts and tribunals. This contribution pays attention to the question of why judicial gender matters. Demonstrating that sex-based differences play an important part in judging has challenged even the most committed essentialists. Legitimacy-based arguments are deemed inadequate in so far as they fail to address the structures of power and discrimination that create exclusions. In this contribution, I argue that the dearth of women judges matters because it is both symptom and cause of the highly gendered way in which international law and international institutions operate. Drawing on Erika Rackley’s early work in which metaphor is used to reveal the gendered nature of the judicial role, I call forth the idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law. The female judge, conversely, is a disruptive force as her very presence places gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, this contribution concludes that an approach to judging that acknowledges and challenges structures of power – including gender – contains transformative potential. However, it is potential that must find a way to operate within significant institutional and normative constraints.

1. Introduction

This contribution foregrounds the relationship between gender and international judging. It begins by looking at the question of sex/gender representation, acknowledging the readily apparent fact that there is a stark dearth of women judges on international benches. Efforts to increase the numbers of women on some tribunals, while having modest success, have also met with not inconsiderable institutional resistance. This notwithstanding that gender equality is a well-established norm of international law. Faced with clear and enduring disparity, the pressing question this article addresses is why gender is a matter that merits serious attention when it comes to international judges. In what ways might gender matter? Empirical studies informed by essentialist understandings of sex as a characteristic, which examine whether women and men judges perform their role in significantly different ways, have been largely inconclusive. This greatly weakens the case that gender matters when arguments are constructed on the basis of there being essential differences between male and female judges. Further, arguments that focus on legitimacy are presented here as compelling but inadequate to fully account for why the lack of international female judges merits serious attention. I argue that such accounts risk shoring up institutional and normative structures of injustice and discrimination that serve to marginalize and exclude.

In this article I argue from a position that understands international judges to be actors operating within highly gendered contexts, in which structural exclusions, discrimination, and oppression are rendered invisible. Gender is everywhere, yet is apparent (almost) nowhere. I use metaphor to illustrate this point. The totemic international judge is male, yet his apparent genderless-ness mirrors the apparent genderless-ness of international law; he operates within international law’s constraints and serves to normalize, rather than challenge, them. The female judge, in metaphorical terms, is taboo because her gender, by virtue of its counter-normative visibility, threatens to destabilize. What are the practical, real-world lessons to be drawn from this? Feminist accounts of judging are used to demonstrate how attention can be drawn to the structures that exclude women and other marginalized groups from the centres of international law. However, this contribution also places emphasis on the structural limitations under which judges operate. Ultimately, in adopting an approach informed by transformative equality, it is argued that when considering the role and function of international judges, gender matters because gender derives from social and legal systems that are steeped in injustice. Attention must turn to the highly gendered (racialized, heteronormative, ableist) exclusionary frameworks within which the judge operates. Enquiring into the ways in which gender operates in practice in international courts and tribunals – including how it is embodied, experienced, understood and replicated by judges – can point us to the structural injustices that undergird the stark statistical inequalities on international benches.

2. The problem of parity

There is a significant under-representation of women on international benches, which reflects a wider pattern of exclusion throughout international organs. Nienke Grossman has been at the forefront of highlighting international judicial gender/sex disparity. In a comprehensive survey of international courts published in 2012, she found that the percentage of female judges on 11 international courts in total since their establishment averaged at only 15 per cent (an average pulled up considerably at that point by the International Criminal Court’s (ICC) 44 per cent). The International Tribunal for the Law of the Sea’s (ITLOS) percentage then stood at 0 per cent (no woman had ever been appointed to it);¹ the International Court of Justice’s (ICJ) percentage was just 3 per cent; the European Court of Justice’s 7 per cent; the International Criminal Tribunal for the former Yugoslavia’s (ICTY) 15 per cent; and the World Trade Organization (WTO) Appellate body’s 19 per cent).² Cumulative statistics such as these that date from the creation of international courts might at least hold out the possibility that the problem is a historic one that is progressively improving. However, more recent data shows that while the number of women judges internationally is certainly increasing, progress is nevertheless slow, uneven, and not necessarily linear. The problem of representation is certainly an enduring one.

Continuing her work raising the importance of gender representation, Grossman, in an article published in the American Journal of International Law in 2016, summarized the findings of a large-scale statistical overview of gender representation on 12 international tribunals at that point in time. Her findings identified continuing disparity. On nine of the tribunals, ‘women made up 20% or less of the bench’.³ Small progress, then. Further, Grossman cautions against any assumption that there is a clear and undeviating trajectory towards parity. In many cases, she found, ‘the percentage of women on the bench has stayed constant, vacillated, or even declined over time’.⁴ At the time her article was written, for instance, only 20 per cent of the ad litem judges of the International Criminal Tribunal for Rwanda (ICTR) were women, when it had been 60 per cent in 2004. The WTO Appellate body – which is currently not sitting – then had only one female judge, where there had previously been two. A similar pattern of deviation away from parity was found in the Inter-American Court of Human Rights.⁵

These figures – which identify stark disparity and, at best, slow progress – inevitably raise the question of what might be impeding women’s progress. Assuming that there are not decreasing numbers of high quality female lawyers, Grossman uses the picture of unevenness and occasional regression to puncture the ‘quality of the candidate pool’ argument that is often put forward to explain disparity, and she further argues against the assumption that merit is the driving factor behind international judicial appointments.⁶ She points out that even countries with high numbers of practising female lawyers are not fielding sufficient female candidates.⁷ She skewers arguments that there simply are not enough qualified women with the simple observation that:

it is difficult to believe that in a world of over 7 billion people, only one woman is qualified to sit on the seven-member benches of the ECOWAS, Inter-American Court of Human Rights and World Trade Organization Appellate Body, and on the 21-member bench of ITLOS.⁸

Looking more closely at the pattern of judicial appointments to even the more sex/gender representative benches indicates a legacy of resistance that holds contemporary relevance. In a study of the composition of the European Court of Human Rights (ECtHR) published in 2015, when 18 of the 47 Strasbourg judges were women, Stéphanie Hennette Vauchez reveals that it took until 1971 – that is, 12 years after it became operational – for a female judge to sit on the Court (Helga Pedersen, a Danish judge). For the first 30 years, there was only a total of three female judges. This is a significant legacy given the jurisprudential importance that much of the Court’s early case law retains. Additionally, despite the clear trajectory towards increased numbers of women judges, Hennette Vauchez noted that 21 Council of Europe member states had yet to have a female judge sitting there.⁹ Thus, an improving picture overall can disguise serious barriers and resistance to further progress that still exist. She describes the progress made at that time on that particular court as resulting from ‘a very tense, intense and much disputed deliberate enterprise’ of the Parliamentary Assembly.¹⁰

How then do things currently stand with respect to gender/sex parity on international benches? The present-day picture points to an ongoing, albeit gradual, overall increase in women’s representation, but also, startlingly, some areas particularly resistant to this trend. More recently, there has been some regression in the number of women on particular international benches. At the time of writing, the picture is as follows:

• The ICJ currently has four women on its bench of 15 judges (including President Joan E. Donoghue).

• The ITLOS has five female judges out of 21. In the most recent nominations for the ITLOS, seven out of ten nominees were men.

• The ICC has recently achieved parity, with nine women out of 18 judges.

• Three of the 22 judges (including reserve judges) across the judicial chambers of the Extraordinary Chambers in the Courts of Cambodia are women.

• The UN International Residual Mechanism for Criminal Tribunals presently has eight female judges out of 24 judges. In 2018, the UN General Assembly issued an all-male list for candidates for that tribunal.

• The ECtHR has 16 female judges out of 47; the African Court of Human Rights six women judges out of 11. The Inter-American Court of Human Rights has three female judges out of seven judges.

• The overall percentage of females sitting across the UN human rights treaty monitoring bodies is 49 per cent. However, if the CEDAW Committee and Committee on the Rights of the Child are excluded, the average figure for female membership of UN human rights treaty bodies stands at 39 per cent.¹¹ Perhaps unsurprisingly, the CEDAW Committee has 22 women sitting and only one man.¹²

Progress has undoubtedly been made towards gender parity, albeit from a startlingly low base point. Yet, as Grossman has demonstrated and the current data attests, any progress cannot be taken for granted: there is clear precedent for the numbers of women on international benches reducing. Certain tribunals – and certain states, it would seem – have been more resistant to change. There are pockets of international law (human rights particularly, but also, to a lesser extent, international criminal law) where women sit on the benches (tribunals and committees) in greater numbers. Conversely, there still seem to be important and vast swathes of international law that remain ‘no go’ areas for women judges. Finally, women are present in markedly higher number in ‘softer’ mechanisms, such as human rights treaty monitoring bodies, when compared with international courts.

3. The rocky road towards – and away from – parity

The ongoing resistance and barriers to greater female representation in international courts (tribunals, and committees) raises interesting and important questions. In terms of the stories that international law tells about itself and its normative values, striving for better representation of women on international benches should not be particularly controversial. Neither should it be terribly challenging as an aim. Equality on the basis of sex and/or gender is a fundamental norm of international law and provides a platform from which to argue for institutional reform. Enshrined in the Charter of the United Nations is a declaration that the organization ‘shall place no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs’.¹³ Article 7 of the Convention on the Elimination of All forms of Discrimination against Women (CEDAW)¹⁴ requires states to take measures ‘to eliminate discrimination against women in the political and public life of the country’ and, in particular, to ‘ensure to women, on equal terms with men, the right … to hold public office and perform all public functions at all levels of government’. More particularly, Article 8 requires states to ‘ensure to women, on equal terms with men and women and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations’. It is worth noting that Article 4 of CEDAW also permits measures of positive discrimination that aim to redress historic gender inequalities.

These normative commitments have led to specific measures being taken to improve the representation of women in international institutions. In February 1997, the UN General Assembly adopted Resolution 51/69 that calls on states to ‘commit themselves to gender balance … in all international bodies, institutions and organizations, notably by presenting and promoting more women candidates’.¹⁵ This Resolution perhaps had some impact, since the data above indicates an upwards trajectory around this time. In 2010, for instance, two female judges were appointed to the ICJ. They had been preceded by only one female judge in the history of the Court, Judge Rosalyn Higgins.¹⁶ In 2015, the General Assembly adopted a further Resolution calling for gender parity throughout the UN.¹⁷ More recently still, in July 2019, the Human Rights Council adopted a Resolution on the Elimination of all form of discrimination against women and girls that ‘Calls upon States, and encourages the United Nations and other international institutions, to promote a balanced gender representation and equitable geographical distribution in the composition of international bodies at all levels … ’¹⁸ On the basis of that Resolution, a report has recently been produced by the Council’s Advisory Committee on the current level of women in human rights organs and mechanisms. Although the report details a lengthy institutional history of engagement with the problem of under-representation that has led to some improvements, it characterizes progress as incomplete, slow-paced, and uneven.¹⁹

A few international courts and tribunals even have founding instruments that make specific reference to sex/gender representation. For instance, sex/gender representation is a mandatory consideration for the appointment of judges to the African Court on Human and Peoples’ Rights, which was established in 2004.²⁰ The ICC’s statute requires a ‘fair representation of female and male judges’ (Article 36(8)(a)(iii)); it goes on to require states parties to ‘take into account the need to include judges with legal expertise on specific issues, including … violence against women or children’ (Article 36(8)(b)).²¹ Provisions such as these have demonstrable impact. Grossman notes that the percentage of women on that court ‘has never dropped below 39 per cent since establishment, and 47 per cent of all judicial slots have gone to women since its establishment’.²² As can be seen from the data presented above, such provisions effect change as these two tribunals have consistently had some of the highest percentages of women on their benches.²³ Tribunals with a mandatory or aspirational requirement to consider gender in appointments had more than twice the number of female judges than tribunals without such a requirement,²⁴ and four of the five tribunals with the highest number of women judges have such a requirement.²⁵ Despite the apparent effectiveness of including provisions aimed at addressing gender imbalance and their consistency with the norm of gender equality, they have not been widely adopted and have not been without their detractors. An in-depth study of international judicial appointments published in 2010 by Ruth Mackenzie and colleagues, found that positive measures to address gender disparity were criticized by many of their interviewees, which serves as ‘a reminder’, the authors argued, that such measures ‘are still new and relatively controversial’.²⁶

Looking in more detail at the example of judicial appointments to the ECtHR underscores the controversy that measures aimed at increasing the number of female judges can generate. Although the European Convention on Human Rights²⁷ itself says very little about the criteria for judicial appointment, the Council of Europe’s Parliamentary Assembly has increasingly crafted judicial nomination criteria and tightened selection rules with an eye to enhancing the Court’s legitimacy. Hennette Vauchez dates the genesis of the Assembly’s concern with gender balance specifically to the early 1990s,²⁸ but it took until 2004 for it to attempt to formalize gender balance as a mandatory requirement for nominations. In Resolution 1366 (2004), the Parliamentary Assembly required lists of candidates for election to the ECtHR to include at least one candidate of each sex.²⁹ In Resolution 1426 (2005) paragraph 2,³⁰ the Assembly noted ‘the continued existence of a clear imbalance between the sexes in the membership of the Court’ – 11 out of 44 judges were female at that time. It amended the rule to prohibit single-sex lists, except ‘when the candidates belong to the sex which is under-represented in the Court, that is the sex to which under 40% of the total number of judges belong’ (para. 8), a change that was prompted by Latvia’s submission of an all-female list in 2005.

The Committee of Ministers, while agreeing with the principle that candidate lists should generally include persons of both sexes, nevertheless rejected the Assembly’s call to amend the Convention to enshrine this approach. In fact, it invited the Assembly to consider modifying its own rules to allow for greater flexibility to ensure the nomination of suitably qualified candidates. Prompted by Malta’s insistent submission of an all-male list for selection in 2004, the matter was referred by the Committee of Ministers to the Court itself.³¹ In its first ever Advisory Opinion, a Grand Chamber of the Court, considering that the gender requirement had no intrinsic link to the criteria for judicial appointment mandated in the Convention itself, concluded that the rule requiring the under-represented sex to be represented on lists of judicial candidates must be qualified:

… it is clear that, in not allowing any exceptions to the rule that the under-represented sex must be represented, the current practice of the Parliamentary Assembly is not compatible with the Convention: where a Contracting Party has taken all the necessary and appropriate steps with a view to ensuring that the list contains a candidate of the under-represented sex, but without success, and especially where it has followed the Assembly’s recommendations advocating an open and transparent procedure involving a call for candidatures … the Assembly may not reject the list in question on the sole ground that no such candidate features on it.³²

It seemed almost inevitable that that would be the outcome, given that the idea was being vocally criticized within the Council of Europe organs and that the move to amend the Convention to ensure gender balance on the Court had been rejected during the negotiations of Protocol 14. Resolution 1627 of 30 September 2008 amended the rules on the nomination of judges to reflect the Court’s Opinion. Hennette Vauchez notes that this had the almost immediate effect of regressing female representation, with the 40 per cent threshold becoming a ‘ceiling rather than a floor’.³³ At the time of writing, there are currently 16 female judges sitting on the ECtHR (34 per cent).

Despite the clear improvement in the numbers of women that follow from treaties or rules of procedure including such provisions, the number of courts and tribunals for which consideration to their gender composition is mandatory remains very limited and much of the institutional public hand-wringing about disparity on the benches has not yet been translated into widespread, concerted action to improve gender representation. Such intransigence merits consideration. It further indicates that there is a need for coherent arguments upon which to base calls for treating gender as an important category of analysis with respect to the judiciary.

4. Gender is everywhere and nowhere

While the idea that the gender composition of courts and tribunals matters has broad academic and institutional, as well as normative, support, there is little agreement on the question of why it matters. Several studies of national judges have considered the question of gender representation from an essentialist perspective, looking for empirical evidence that demonstrates sex- or gender-based differences in the ways that men and women perform their judicial functions. The findings from these studies, however, have been inconclusive and inconsistent. Christina Boyd and colleagues summarize the findings of several studies of US judges and sex/gender difference as follows: ‘roughly one-third purport to demonstrate clear panel or individual effects, a third report mixed results, and the final third find no sex-based differences whatsoever’.³⁴ They conclude, however, that while sex/gender rarely has a significant effect on judging, ‘Rarely … is not never’. They point particularly to data identifying significant differences in both individual and panel effects in sex discrimination cases, concluding that here informational accounts of sex/gender difference – that is, accounts that argue women’s experiences equip them with unique and valuable information when deciding cases – might provide a useful explanation of difference.³⁵

When it comes to studying gender effects on international benches, the small number of female international judges, as well as the collaborative nature of much decision-making, makes empirical analysis of outcomes challenging.³⁶ Nevertheless, some social scientists have taken up this challenge. The establishment of a number of international criminal tribunals since the 1990s generated considerable scholarly interest in the judges sitting on those novel tribunals. In a 2005 study of the impact of personal characteristics on the decisions of the judges of the ICTY, James Meernik and colleagues concluded that ‘women are neither more nor less likely to sentence those found guilty to lengthier sentences’,³⁷ and that ‘despite a heightened awareness of the victimization of women in the Balkan wars, women sentence no differently than men’.³⁸ King and Greening, in a subsequent study of ICTY judges, found that, with regards to charges of sexual violence, ‘the interaction of judicial and victim gender matters for sentencing outcome’.³⁹ They conclude that, ‘Although women must achieve a tipping point before implementing substantive policy representation in institutions, our results indicate that presence alone may be sufficient to confer benefits and magnify differences.’⁴⁰ The rather modest take-home point here seems to be that sex/gender may matter somewhat, at least in an international criminal law context looking at two particular areas of outcome (guilt or innocence, and the length of sentence handed down).

A recent study by Erik Voeten of the effects of sex/gender on the judgments of the ECtHR, using matching method that compares the decisions of a male and female judge with otherwise ‘similar’ characteristics, provides only limited support for difference-based arguments. Overall, Voeten’s study found no evidence that female judges were generally more favourable to female applicants except, importantly, in discrimination claims filed by women (which his study suggests women judges may be more receptive to). Female judges were somewhat more likely to find a violation of the Convention, especially in cases involving physical integrity claims.⁴¹ His study supports the suggestion that sex/gender may be a significant characteristic in specific, limited circumstances.

There is only limited evidence to suggest that sex/gender is an important differential in how judges perform their role. As finding data that conclusively demonstrates important essential differences in the ways men and women judge has proved elusive, arguments based on sex/gender differences that directly correlate to outcome provide only weak support for the argument that gender on the bench matters. Consequently, some have preferred arguments for parity based on legitimacy. Nienke Grossman, for instance, suggests that we turn away from focusing on difference, asserting that ‘Whether or when men and women judge differently is irrelevant.’⁴² Achieving gender parity on international benches, she argues, would itself have the important effect of enhancing the sociological legitimacy of international courts and tribunals.⁴³ She further cites democratic legitimacy as a compelling argument to strive for gender parity: ‘Sex unrepresentativeness threatens the normative legitimacy of international courts because these institutions wield public authority, yet they fail to reflect fairly those affected by their decisions.’⁴⁴

Legitimacy-based approaches have the advantage of removing the need for empirical demonstration of gender differences. They also swerve the essentialist thinking that underpins such investigations.⁴⁵ However, they have little resonance for international institutions, which make very limited claim when compared with their national counterparts to democratic or sociological legitimacy. International institutions – including courts and tribunals – are born of the state-centric, highly political, largely unaccountable (in any democratic sense), structures of international law. The appointment of international judges is far from being free from the politicking and the furthering of national interests – not to mention the patriarchal norms and practices – that underpin the work of international institutions.

Legitimacy arguments – which are compelling because they rest on the straightforward and unarguable assertion that there should be more women judges – steer us away from asking why that seemingly unproblematic imperative proves to be so elusive. They fail to place under scrutiny the structures of discrimination that undergird international institutions and that can help to explain why women (to use one identity category) are in fact largely absent from international judicial positions. Legitimacy-based arguments take international law’s commitment to equality at face-value and do not point to the urgent need for institutional transformation. The work that gender does within institutions, and the need to address institutional structures of power and discrimination, remains unaddressed. If our aims end with parity for the sake of legitimacy, if the women judge is primarily there to even up numbers, there as a figurehead who in her representational positioning shores up the institution and provides it with a veneer of respectability, then the institutional resistance to addressing questions of gender remains untouched.

Paying attention to the gender of the judge can open the door to probing the role that gender plays within the institutions and structures of international law. In figurative terms, the judge can be understood as a male figurehead; he is a totem who operates from within, reflecting – yet at the same time concealing – international law’s highly gendered structures. Viewed in this light, the woman judge is both a conundrum and a taboo. Erika Rackley’s early work laid the path for thinking about women judge in such figurative terms:

Her physical appearance threatens to upset aesthetic norms; her presence is an inescapable irritant, simultaneously confirming and disrupting the established masculinity of the bench. As such, the woman judge is almost a contradiction in terms.⁴⁶

In the hands of the totemic male judge, the authority of international law and its institutions is upheld and the work (read, discrimination and exclusions) that gender does is rendered invisible. The female judge, on the other hand, is taboo. She is the impossible judge because she can never be genderless. The female judge is a troubling and disruptive force whose very presence places gender in the frame; by her very existence she threatens to chaotically reveal the contingency and the discriminatory practices and values of international law. She is, thus, a ‘bad fit’ who is generally to be resisted, and who may be tolerated only in so far as her gender is either cloaked or, alternatively, inflated and emphasized to the point that the judge herself becomes a ‘stand in’, representative every-woman. Recognizing this presents an opportunity to turn our gaze to the structures that make the female judge taboo. The dearth of women judges is not, then, just undemocratic, and it does more than render the judgments of such institutions illegitimate; it is both the product of, and an illustration of, sustained and systemic injustice and discrimination. To recognize that judges are situated, to accept the relevance of identities (including gender and sex), opens the door to acknowledging the power structures that exclude and shape experiences of discrimination. In the words of Sandra Berns and Paula Baron, ‘For a judge to simultaneously speak as a woman is to speak without authority, to speak in defiance of law.’⁴⁷

5. The potential of positionality

Feminists in international law have drawn attention to the powerful political and legal structures that entwine to sustain power and to marginalize. The totemic judge does not make waves, but rather reflects and sustains structures of power and discrimination and is thereby an institutional conformist. This idea has real-world implications on the practice of judging. Daniel Terris and colleagues identify three reasons why internationally, judicial transformation is slow: (i) International judges operate more collective, creating a community of knowledge-based experts; (ii) international judges are reluctant radicals; (iii) international judges operate in fragile institutions, subject to the consent of states for their survival.⁴⁸ This all makes intuitive sense and reflects the considerable institutional constraints under which judges operate; but what of those judges who self-consciously embody taboo and conflict? I turn now to individual accounts from international judges that place emphasis on the impact that a self-conscious attention to structural inequalities and difference (including paying to attention to sex and gender) might have made to their judging. The picture is a complex one that reveals a to-ing and fro-ing between resistance to and compliance with the normative and institutional structures of international law.

Gender is one dimension of identity that informs our experiences, including experiences of inequality and discrimination. A number of judges have acknowledged the ways in which experience and identity, including gender, inform their judging. The examples here are drawn from women judges not because they are the only ones with transformative potential to call out the structural limitations under which international law operates, but because their gender identity contains an ever-present threat to expose the patriarchal values that the totemic judge protects. Some judges react self-consciously to their metaphorically taboo status. Françoise Tulkens, the Belgian judge who sat on the ECtHR from 1998 to 2012, has, for instance, argued for the need to expose as myth the ideal of the impartial and neutral judge, particularly in a human rights context:

Despite their universal and highly abstract nature – perhaps precisely for this reason – fundamental rights lead to a contextualisation of the norm which, when assumed by the judiciary, translates into interpretative practices that are sensitive to the diversity of interests and values involved. These practices spell the end of the myth of literal meaning of norms and of the fiction of the neutral judge …⁴⁹

She further draws from personal experience to suggest that women judges bring ‘something different’:

So, precisely, a more contextualised approach to the rights of the European Convention on Human Rights; likewise, a preference for a complex and concrete internal point of view rather than a simplified and abstract external point of view; also, a sense of mistrust regarding the public/private division and a greater openness to the horizontal application of the Convention; a stronger commitment to the idea that there is “no water-tight division” between civil and political rights and economic and social rights.⁵⁰

This is not so much, I would suggest, an essentialist argument based on difference, but rather, a more political and overt recognition of the ways in which gender shapes institutional human rights norms, a recognition that stems from acknowledging (her own) positionality.

What implications might such overt positionality have on the practice of judging? One potential and highly significant outcome of acknowledging the ways in which identities shape individuals’ relationship to structures of power is that exclusions can be identified and voices that have been marginalized by the mainstream can be foregrounded. Trying to demonstrate how theory has translated into real-world impact is rife with traps and temptations. Nonetheless, the adoption by judges of feminist framings of sexual and gender-based violence as forms of discrimination have particularly been identified both by judges and academics as informing important recent developments in international criminal law and human rights law, developments which I turn to now.

Judicial gender has frequently and particularly been associated with developments in international criminal law relating to sexual offences. According to Barbara Bedont and Katherine Hall-Martinez, the dramatic move towards taking sexual crimes seriously ‘can be traced to the participation of women in the ICTY and ICTR as investigators, researchers, judges, legal advisors, and prosecutors’.⁵¹ Normative and institutional developments in this context have been directly attributed to women judges, even when they are in a minority. Kimi Lynn King and colleagues, for instance, identify that several significant developments took place at the ICTY with respect to prosecuting sexual violence offences, in spite of that tribunal having only two female judges. These authors conclude that ‘women have the ability to shape outputs that are part of a “woman’s domain” even when their numbers do not constitute majorities’.⁵² Attentiveness to gender-based violence and discrimination has often been attributed to the sex/gender of the judge. Julie Mertus, for instance, cites Chief Prosecutor of the ICTY Richard Goldstone as recalling that without having women involved in the Tribunal’s early days, ‘there may not have been any indictments for gender-based crimes’.⁵³

At the ICTR, Judge Navanethem Pillay famously responded to witnesses’ accounts of rape and sexual violence in the case of Prosecutor v. Jean-Paul Akayesu ⁵⁴ by insisting on the inclusion of charges relating to them, even though such charges were not initially brought by the prosecution.⁵⁵ It is well known that the outcome was a judgment that was both far-reaching in terms of the definition of rape in international law and was the first delivered by an international tribunal to recognize criminal responsibility for genocide resulting from a systematic and targeted pattern of rape.⁵⁶ For four years, Judge Pillay was the only female on the ICTR’s bench, so the conclusion that her gender was the causal factor here is seemingly irresistible. Louise Chappell identifies both the increased representation of women on the bench and ‘an increasing sensitivity to gender issues in the procedures of the court’ as hand-in-hand developments and, quite rightly, as significant advances.⁵⁷ Following careful analysis of five judgments delivered by the ICTY and ICTR that significantly developed international jurisprudence concerning gender-related crimes, Kelly Askin notes that in each:

a female judge was a member of the Trial Chamber hearing the case, and occasionally it was her skillful intervention, expertise in women’s issues, or judicial competence that facilitated the judicial redress process and impacted the development of gender crimes.⁵⁸

According to Mertus, Judge Odio Benito (Judge of the ICTY, 1993–1998) used ‘every opportunity’ to ensure the indictment in the Nikolić case was amended to include gender-based crimes.⁵⁹ Later, as a member of the ICC (2003–2012), Judge Odio Benito issued a well-known dissent in the Lubanga judgment relating to the use of child soldiers, in which she argued that ‘sexual violence is an intrinsic element of the criminal conduct of “used to participate actively in the hostilities”’.⁶⁰

Female judges have themselves articulated that their gender may mark them out in terms of their understanding of, and approach to, sexual violence. Patricia Wald (Judge of the ICTY, 1999–2001), has hypothesized that women judges might exhibit ‘special sensitivity’ to crimes of sexual violence and forced labour, on the basis that women shoulder a particular burden of victimhood with respect to these crimes.⁶¹ Navanethem Pillay (Judge of the ICTR, 1995–2003 and the ICC, 2003–2008), says that ‘women come with a particular sensitivity and understanding about what happens to people who are raped’.⁶² She reports that international female judges, herself included, have had to push prosecutors to charge defendants with rape-based offences.⁶³ Julia Sebutinde (Judge of the Special Court for Sierra Leone, 2005–2011 and the ICJ, 2012–), who delivered a noteworthy separate opinion on forced marriage in the AFRC trial, says that:

As a female judge, listening to the horrendous stories, I always felt that the women bore a much harder brunt … of this conflict than the men … somehow the perpetrators always found a way of exerting a heavier burden on the female victims, on top of the crimes they committed against them. They would use the women like personal possessions.⁶⁴

Gabrielle Kirk McDonald (Judge of the ICTY, 1993–1999), also recalls insisting on rape indictments, describing herself as being able to ‘feel it in my body’ in a way that her male colleagues could not.⁶⁵

While the gender of the judge is clearly significant in these examples drawn for international criminal law, my argument is that gender operates in more complex ways here than ‘woman judge = difference’. We need to work harder to understand the institutional role that gender is playing. Rosemary Grey and colleagues’ study of gender and judging on the ICC concludes that a gender-sensitive approach makes a difference to the way in which the law is interpreted, the finding of facts and to procedural decisions.⁶⁶ While it is tempting to conflate women on the bench with developments in international criminal law, the correlation is not precise. What is important is the conscious way in which these judges acknowledge the varied significance of gender, including its institutional significance. With respect to Pillay’s transformative decisions, it is her conscious decision to address the significance of gender (including her own), and her resultant principled commitment to women’s rights and gender justice – not her sex/gender alone – that was pertinent to her contribution to the court’s jurisprudence in Akayesu.⁶⁷ Merely identifying the sex of the judges does not explain the differences that the judges made here: The procedural and jurisprudential developments in international criminal tribunals were wrought by judges who identified the significance of gender and who were willing to challenge structures of power in the pursuit of gender justice.

Of course, it is probably uncontroversial to suggest that a female is more likely to become aware of her gender by virtue of its poor fit with institutional norms and frameworks. Although women do not inhabit a universalizable category from which they can be demonstrated to judge in a particular way or have particular knowledge or experiences, judges who embody the judicial conundrum – that is, those whose identities are at odds with the patriarchal norms and structures of international law – may more readily recognize and call out its exclusions and blind spots. Such ‘calling out’ is not a given (it is brave and exhausting choice to recognize and call out structural discrimination), is not exclusive to women (gender here operates as an example, and men might, of course, be aware of structures of discrimination), and the judge may find herself vacillating between resistance and compliance, between totem and taboo, even in the context of a single judgment. While the totemic judge is apparently genderless in so far as his masculinity is taken for granted, the woman judge is taboo because through her, gender becomes overt. Gendering the (invariably, female) judge can have real-world effect and play out in the experiences of, and the expectations we place on, judges. One is not born, but rather becomes, a woman judge.

The question of gender is thus an institutional and structural one. The architecture of international criminal law institutions – in so far as they make direct reference to gender is also significant here. In the words of Chappell:

… feminist-oriented judges must work with their peers and convince them of the relevance of the gender justice elements of the case. However, feminist judges on the ICC do have an advantage over many of their colleagues in domestic settings in that they have a strong “constitutional” base on which to mount their arguments: that is, the gender justice architecture built into the Rome Statute.⁶⁸

The ICC’s architecture goes beyond recognizing binary sex-based differences and calls for sensitivity to gender in all its dimensions (including, but not restricted to, gender-based violence). In the context of sexual crimes, however, the gender (of the event and of the judge) becomes overt and it is the female judge who is allowed a space at the table – her gender is allowed to be on display, even to the point that we insist here in this context on the central important of gender. One might then ask why the gendered dimensions of these crimes operates in such a way that the woman judge in all her gendered glory is finally here permitted to come to the fore. Why here? The work of Karen Engle⁶⁹ and Hilary Charlesworth⁷⁰ has provided us with good reason to exercise caution where the female judge is over-gendered and when the same tropes and examples come to be intrinsically associated with women judges; questions of sexual violence, to the exclusion of other forms of gendered, racialized, and economic discrimination and injustice, become her domain and her plight. The female judge’s function is to reveal the feminized, disempowered, and shamed victim of sexual violence. One question this provokes is whether international criminal law can envisage, and adequately respond to, sexual and gender-based violence that is perpetrated on male or masculine bodies. Transformation – that is, transformation beyond particular, permissible ‘ghettos’ of international law – requires us to recognize that gender and gendered bodies are not exclusively a women’s realm.

There has been far less discussion about the operation of gender and the international benches outside of the contexts of sexual violence and gender discrimination. There are undoubtedly remarkable women judges we can point to beyond those who sit on the criminal benches. As a member of the Human Rights Committee, prior to her appointment to the ICJ, Rosalyn Higgins led the way in drafting General Comment 24, which was ground-breaking on the question of reservations to human rights treaties. She would, of course, go on to be hugely influential as a judge on the ICJ, particularly in her separate/dissenting opinions in the Nuclear Weapons Advisory Opinion;⁷¹ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory;⁷² the Arrest Warrant case;⁷³ and Armed Activities on the Territory of the Congo.⁷⁴ Her influence as President of the ICJ – for instance, in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case – is clear.⁷⁵ Thomas Buergenthal notes that Rosalyn Higgins was a very active member of drafting committees while sitting as a judge on the ICJ, thereby contributing considerably to the ‘initial formulation’ of its jurisprudence.⁷⁶ While unquestionably a huge and remarkable judicial presence, at least some of her vision is exceptionlized by its containment in dissenting judgments. Judge Julia Sebutinde too has, as outlined above, an impressive background in women’s rights and, sitting on the ICJ, issued an important separate opinion in the court’s recent Chagos Islands Advisory Opinion, in which she placed under a sharp lens questions of colonialism and self-determination.⁷⁷ Nonetheless, in a 2014 interview conducted with three of the current female ICJ judges (prior to Rosalyn Higgins’ recent appointment), all, but especially Judges Donoghue and Xue, were at pains to de-centre questions of gender, in spite of the inevitability of them being raised.⁷⁸ Gender, for women judges on most international benches in most contexts, remains both inescapable and impermissible. If the transformation of international law and its structures is the aim, is not enough to call out the role that (institutional and judicial) gender plays in the spaces of international law where gender has permission to reveal itself.

6. The problems of institutional and normative constraints

Rosemary Hunter has argued that raising the question of gender parity falls short of asking the critical question: what should women judges do once appointed?⁷⁹ An equally, or perhaps even more pertinent question, might be, what may women judges do once appointment? The institutional and normative constraints are considerable. The gender dimension of much of international law may be deeply entrenched and so normalized as to not be readily apparent and the constrictions such that genuinely transformative judging appears to be all-too-frequently out of reach.

Entering the realm of the imaginary – that is, meeting the metaphorical, totemic judge on his terms – provides us with tools to tackle the seemingly superhuman task of using judgment to reveal the entrenched, structural patriarchal (heteronormative, racialized, ableist) foundations of international law. A recent collection of international judgments reimagined and rewritten from feminist perspectives, Feminist Judgments in International Law,⁸⁰ identifies the structural aspects of mainstream international law and reveal the ways in which apparently neutral rules operate in gendered and other ways to marginalize and exclude. It also demonstrates in concrete ways the transformative possibilities that feminist approaches to judging might offer if institution constraints permit. Navigating those constraints is, however, an ever-present challenge evident throughout the collection; and, even in the realm of fiction, conceiving oneself as a judge free to identify and reveal the gendered foundations of international law and to challenge structural discrimination takes not a small leap of imagination.

The collection of reimagined judgments in Feminist Judgments in International Law takes a broad view of the gendered dimensions of international law – not excluding, but certainly not confined to, questions of women’s victimhood and sexual violence. Adopting a feminist approach, the concerns become structural – particularly challenging the centring of states in the international legal system. This collection, for instance, interrogates the ways in which the Security Council wields unparalleled power and the limited accountability that exists with respect to the exercise of that power.⁸¹ In the re-written Lotus judgment – renamed the Bozkurt case by the feminist chamber, after the Turkish vessel involved in the collision with the French vessel whose name international lawyers are far more familiar with – the case is placed in historical context and questions about the rights of women that were not posed by the original tribunal are opened up. In finding that Turkey’s exercise of jurisdiction did not violate international law, the chamber established the ‘Bozkurt Principle’, which de-centres state sovereignty and establishes international co-operation as a hallmark of international society.⁸²

It is possible to imagine a transformative equality approach to judging that adopts a particular and deliberate positioning, attentive to the operation of power structures and their relationship to gender and other axes of discrimination. Sally Kenney’s review of the literature refers to work showing that ‘feminist ideology may well be more important than gender in predicting different votes in hypothetical cases’.⁸³ Hunter lists the following expectations that she might have of a feminist judge: (i) She will identify the relevance of gender; (ii) she will judge inclusively, recognizing the partiality of narratives laid before the courts and identifying with the interests of women; (iii) she will challenge bias; (iv) she will adopt ‘feminist practical reasoning’, drawing from the women’s lived experiences; (v) she will promote a substantive view of equality that foregrounds systemic disadvantage and injustice; (vi) faced with the uncertainties of making choices, she will make feminist choices; (vii) she will commit herself to full-time feminism; (viii) finally, she will support other women. Hunter also argues that feminist judges arguably have a ‘responsibility’ to ‘maintain familiarity with feminist legal literature … and to make use of it to consider whether and if so how a feminist analysis may be undertaken in every case coming before them’.⁸⁴ This is quite an ask. The experiences of those involved in the Feminist Judgments in International Law collection demonstrate that even for those setting out with clear-eyed, feminist purpose, the institutional and normative barriers to judging in such a way are considerable.⁸⁵

Questions about ‘difference’ in judging need to look beyond sex/gender as a category towards an understanding of how awareness of gender and other power dynamics can/does/should – and, crucially, is allowed to – inform and shape judicial approaches. Hennette Vauchez asserts, in her review of the judicial candidates, that female candidates are typically ‘women who are essentially des hommes comme les autres – that is, women whose profiles are very comparable to those of their male counterparts’.⁸⁶ Judicial replication of international law’s masculine, traditional values will not engender change or end discrimination, regardless of the sex of the judge. For a judge to operate at once from within international law and in a self-consciously gendered way that challenges its patriarchal structures requires her to adopt and articulate a position that is bordering on the superhuman. Rosemary Hunter has referred to the ‘invidiousness of difference’ and the ‘disciplinary techniques’,⁸⁷ which restrain (domestic) judicial efforts at transformation. Patricia Wald notes that women ‘have to be recognised as smart, fair and hardworking if they are to wield influence’, which she understands to mean that those seeking to promote gender parity must nonetheless be cautious ‘regarding whom they support for crucial judicial and prosecutorial positions’.⁸⁸ Her own experience, however, was of being ‘criticised at times for intervening too often or pushing my point too hard’.⁸⁹ Judging in a way that is committed to gender justice, in a way that works to reveal structures of injustice from within structures that are themselves steeped in patriarchy, is exhausting work. The feminist judge – the transformative judge, the superwoman judge, the gendered judge – is, by definition, swimming against both the jurisprudential and institutional tide.

7. Conclusion

While gender is an unquestionable important aspect of international judging, in this contribution I have suggested that more is at stake than calls for women to be given an equal space on international benches suggest. I have focused attention on the question of why gender is an important consideration. In doing so, I turned enquiry away from seeking to demonstrate essential sex/gender differences in how judges judge, directing it instead towards consideration of the ways in which gender operates as a social construct, how it relates to international legal processes, and how it both shapes and constrains the judicial role. In the words of Kenney, ‘… we can learn a lot from using sex as a variable, but only if it is coupled with an understanding of gender as a social process that is more complex than binary and essentialist understandings of sex differences allow’.⁹⁰ The gender question is an important one for international courts and tribunals, not just to ensure their legitimacy or because of some innate difference in the ways men and women think: addressing questions of gender representation on international courts and tribunals in a meaningful way means laying bare axes of discrimination that undergird concern about the lack of women on international benches. To explain this, drawing on Rackley’s work, I called upon a metaphorical totemic judge who embodies and enrobes international law’s patriarchal norms. Gender is everywhere and nowhere on the international benches: the woman judge is taboo because her very presence unveils a foundational fiction of international law, that its norms and structures are without gender. To take her place on the international bench she must, but can never, be without gender. To pose questions about gender and the international bench is thus to pose an impossible conundrum.

In this contribution, I have agreed with those who assert the importance of positionality. Some international judges certainly can be said to judge, at times and in particular spaces, with a self-conscious gendered awareness – and this can, and sometimes does, make a difference in so far as it lays bare the structures of power and discrimination at play. With that awareness in mind, I turned to highlighting the normative and procedural differences (or developments) that have been attributed to (judicial awareness of) gender. These were most readily associated with important developments made in the fields of international criminal law and human rights. However, despite recognizing and celebrating the judicial creativity and bravery that underpins the developments outlined, I have been at pains to stress that judicial positionality is shaped by, and interacts with, institutional and normative structural limitations. My argument has thus aimed to hold a mirror up to that which makes the adoption of such positionality both remarkable and a formidable challenge.

There is, further, risk in adopting the term ‘gender’ as a shorthand for ‘women’, from which position it is a short step to essentializing women as, for instance, inherently peace-loving and nurturing. I have argued against this too. I have called attention to that which is taboo and resisted, in all its forms. In simplest terms, paying full attention to the significance of gender and other forms of situatedness requires intersectional analysis. In the words of Josephine Jarpa Dawuni: ‘The experiences of women judges on international courts are different and spread along a continuum of race, class, and social status … thereby requiring a more nuanced analysis of who these women are.’⁹¹ The quest for more female judges should avoid the ghettoization of women into specialized areas of international law, based on stereotypes of women’s special knowledge. In the words of Dianne Otto:

If women are admitted on the understanding that their special contribution arises from their womanly instincts, it follows that their political agency will be limited to what is made possible by that representation and restricted to “feminized tasks” involving nurturing and mothering.⁹²

There is limited work that points to significance of judicial gender in areas beyond international criminal and human rights tribunals, which prompts the question of why gender has been given space to do overt work (has been over-worked?) in these particular spaces of international law. The starkly contrasting invisibility of gender in other spaces of international law marks this question as an urgent one. There is clearly work to be done in revealing the gendered nature of international law more widely and the power structures that operate beyond international criminal law and human rights. This is a strategic, political work. Appointing women to international benches is both an outcome of such work and a potential catalyst for ongoing transformation.