International Criminal Law & the Role of Gender in the Adjudication Process

Written by: Neetu Lather

Introduction

Justice is a key prerequisite for lasting peace. International justice helps in achieving lasting peace, stability, and equitable development in post‐conflict societies. Governed by the Rome Statute an international treaty, the International criminal court (ICC) is the world’s first permanent ICC. As a court of last resort, it attempts to complement, not replace, national Courts. The ICC, as a key institution in international criminal justice and the promotion of accountability and prevention of future crime, is encouraged to set high standards for the integration of gender in all areas of its work.[1]

International criminal law & International Criminal Court (“the ICC” or “the Court”)

International criminal law is the core of public international law that establishes individual criminals’ responsibility for IN crimes, such as war crimes, crimes against humanity, genocide, and aggression. The ICC is a permanent IN court established to investigate, prosecute and try accused of crimes.[2]

The role of gender in the adjudication process

ICC face frequent challenges to their legitimacy, despite wide ratification of the Rome Statute and the UNs’ pivotal role in the creation of other tribunals. A few ways gender representation may be linked to both normative and sociological legitimacy. While a normatively legitimate institution “has the right to rule”, based on presumably objective criteria, a sociologically legitimate institution is “believed to have the right to rule”, a subjective determination.

Gender Representation and Normative LegitimacyGender representation is necessary for normative legitimacy because men and women bring unique perspectives to the act of judging, at least in cases involving experiences different to each gender. Because neither gender’s viewpoint is “correct” and requires both for impartial adjudication.

Despite concerns about essentialism or the belief that each gender shares some fundamental essence differentiating it from the other and transcending the multiplicity of identities within each gender as a sociological matter, constituencies involved in the shaping of ICC’s seem to believe that the presence of both male and female judges is necessary for fair adjudication and justice.

Gender Representation and Sociological LegitimacyEven if one rejects the fact that the genders bring different perspectives to bear in judging, gender representation affects sociological legitimacy because it signals an impartial bench and capacity to do justice to constituencies involved in the shaping of international criminal adjudication.

The need for women was especially urgent on a court dealing with the laws of war and international human rights. For centuries women and children had been the predominant victims of war crimes. But they played no significant role in the peace negotiations or punishment of war criminals. Even the nature of the crimes committed against them, principally rape, was disguised in international law linguistics under generic terms, such as outrages against dignity or honour. Women were invisible in the war calculus[3]

Current situation

  • The ICC’s 18 judges are elected by the Assembly of States Parties for their qualifications, impartiality, and integrity, and serve 9-year, non-renewable terms, out of which 6 are women.[4]
  • The Presidency is composed of the President and First and Second Vice-Presidents, by article 38 of the Rome Statute, the judges of the Court elected the Presidency on 11 March 2021, in this First Vice-President is a woman.[5]
  • The influential 34-member International Law Commission[6] and 11-member Inter-American Juridical Committee[7] contained only 4 and 2 female members respectively in 2021.
  • The UN human rights treaty bodies show confinement of women on the Committee on the Elimination of Discrimination against Women, where women made up 22 of 23 members[8], and on the Committee on the Rights of the Child, where they accounted for 9 of 18 members.[9] 
  • Women made up to 4 of 10 of the UN Committee on Enforced Disappearances[10], 7 of 18 of the UN Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee on Economic, Social and Cultural Rights,[11]
  • Only the Committee on the Rights of Persons with disabilities has more no. of women; 12 out of 18 of its members.[12]

Steps taken

ICC commits to adopt a Strategy on Gender Equality and Workplace Culture at the Generation Equality Forum

During the Generation Equality Forum Summit, which took place in Paris on 30 June-2 July 2021, ICC joined the Generation Equality Forum, a global gathering for gender equality, convened by UN Women and co-chaired by Mexico and France, in partnership with civil society and youth.

Forum is joined by the ICC by making a solid commitment as part of the Action Coalition “Feminist movements and leadership”: to adopt, implement and review its first Strategy on Gender Equality and Workplace Culture by 2025. As emphasized in the ICC’s High-Level Statement on Gender Equality of 30 April 2021, the Court’s principles are dedicated to achieving gender equality and safe and inclusive workplace culture and environment at the Court.

ICC President specified that they intend to consult extensively in the articulation of the Court’s first Strategy on Gender Equality and Workplace Culture so that it can be an inclusive, transformative, and concrete blueprint for meaningful and sustainable change for the organization and its personnel change in terms of culture, processes, and structures where needed.

On the basis of this Strategy, specific action plans will be further identified, either reflecting, streamlining, and coordinating ongoing efforts, or taking steps to address gaps and meet further needs. In this process, the Court will conduct consultations in the coming months, both internally and externally with stakeholders large assembling. The Court’s Principals desire to uplift and look forward to active and wide participation in this process.[13]

Recommendations

The justice system should challenge patriarchal gender norms and uphold the value of gender equality in society. Judges and prosecutors have a responsibility and should uphold the fairness and integrity of the justice system and eliminate gender bias.

There should be Human rights-based interventions, Holding perpetrators accountable, Coordinated and multi-agency approach, Training of professionals.

It must actively seek to mainstream gender within each of its units, functions, and procedures, and ensure that staff, from field officers to legal officers, administrators to judicial officers, have gender-specific competencies that are continually refreshed and strengthened

Conclusion

Almost a quarter-century after feminist approaches made their way into international legal scholarship, women continue to be present in paltry numbers in many international institutions, including international courts. While women do occupy more seats today on most courts than 24 years ago.[14]Gender representation is essential because men and women make different contributions to international criminal adjudication.

Even if one rejects the evidence that each gender shares some essence, gender representation matters because constituencies involved in the shaping of international criminal adjudication appear to adopt essentialist logic regardless. Just as individuals might use the political party as a heuristic to facilitate decision-making on Election Day, gender composition appears to be a signal of whether a court is capable of rendering impartial justice.[15]

About the Author

International Criminal Law & the Role of Gender in the Adjudication Process

Neetu Lather

Student at Vivekananda School of Law and Legal Studies, VIPS.

She has participated in various academic events including moot court Competitions and successfully completed the Legal Drafting and Office Management Course at Vivekananda Institute of Professional Studies. Her areas of interest and research work are Constitutional Law, Competition Law, Criminal Law, Intellectual Property Rights and International law.


[1] Women’s Initiatives for Gender Justice, GENDER REPORT CARD ON THE INTERNATIONAL CRIMINAL COURT 2018,(Aug31, 2021), https://4genderjustice.org/ftp-files/publications/Gender-Report_design-full-WEB.pdf

[2] Cour Penale International-International Criminal Court (Aug 31 ,2021), https://www.icc-cpi.int/about

[3] Patricia M. Wald, ‘Six Not-so-easy Pieces: One Woman Judge’s Journey to the Bench and Beyond’, 36 University of Toledo Law Review (2005) 991.

[4]Cour Penale International-International Criminal Court (Aug 31 ,2021),  https://www.icc-cpi.int/about/judicial-divisions

[5]Cour Penale International-International Criminal Court (Aug 31 ,2021), https://www.icc-cpi.int/about/presidency

[6] Membership, International law commission,(Sep1,2021), https://legal.un.org/ilc/ilcmembe.shtml

[7] Members, AS-More rights for more people,(Sep1,2021), http://www.oas.org/en/sla/iajc/members.asp

[8] Membership, COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER,(Aug31,2021) http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Membership.aspx

[9] Membership, COMMITTEE ON THE RIGHTS OF THE CHILD, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, (Aug31,2021), http://www.ohchr.org/EN/HRBodies/CRC/Pages/Membership.aspx

[10] Members of the Committee on Enforced Disappearances, at http://www.ohchr.org/EN/HRBodies/CED/Pages/Membership.aspx (last visited Aug 30, 2021)

[11] Membership, HUMAN RIGHTS COMMITTEE, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, (Aug31,2021), http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Membership.aspx

[12] Membership, COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, (Aug31,2021),  http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Membership.aspx

[13]Press Release, ICC commits to adopt a Strategy on Gender Equality and Workplace Culture at the Generation Equality Forum, Cour Penale International-International Criminal Court, (Aug1,2021),https://www.icc-cpi.int/Pages/item.aspx?name=pr1602

[14] Nienke Grossman, Shattering the Glass Ceiling in International

Adjudication 2016,(Aug1,2021), https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1270&context=all_fac

[15]Nienke Grossman, Sex Representation on the Bench and the Legitimacy

of International Criminal Courts,(Aug1,2021), https://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Submissions/Annex2-UBSL.pdf

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