Imagine this: a court presided over by a majority of women judges—many of whom are from racially marginalized backgrounds—and which has a “constitution” that has gender justice at its core. Incredibly, given what we know about gender and judging cross-nationally, this is not some utopian vision but the current reality at the International Criminal Court (ICC). As of May 2010, the 18 member ICC bench consisted of 11 women judges,Footnote ¹ most of whom were from outside the West and many of whom have expertise in gender-based violence. This development raises a range of important questions, two of which I want to speculate on in the following discussion: How is it that the sex profile of the ICC bench differs so dramatically from domestic-level courts? What difference might this profile make to the transformation of international law in terms of expanding gender justice principles?

Before turning to these questions, I want first to situate this essay in the broader discussion on gender judging that has provoked the theme for this Critical Perspectives. Along with other writers in this section, I am very pleased that feminist political scientists are paying attention to legal politics. I am in agreement with Sally Kenney in thinking that as feminist researchers, we need to overcome our preoccupation with the legislature as the site for exploring the relationship among women, gender, and politics and expand our focus to include other political institutions as well. There is no doubt that legislative studies provide us with crucial insights about the operation of gender norms within this branch of government and their impact on women's representation and ways of doing politics (see for example Lovenduski Reference Lovenduski2005; Mackay Reference Mackay, Sawer, Tremblay and Trimble2006; Sawer, Tremblay, and Trimble Reference Sawer, Tremblay and Trimble2006). Recent research in this field also alerts us to the error in thinking that the election of a critical mass of women would be a panacea for overcoming gender biases in political institutions (Beckwith Reference Beckwith2007; Childs and Krook Reference Childs and Krook2006, Reference Childs and Krook2008)—an important lesson for those hoping that a sudden rush of women to the bench is the answer that addresses gender discrimination in the legal realm.

It is essential that this research continue, but it is equally important that we broaden our horizons to better understand how the intersection of all formal political institutions—including the legislature as well as the bureaucracy, the legal system, and constitutions—are implicated in constituting the gendered foundation of society. As I have argued elsewhere (Chappell Reference Chappell2002, Reference Chappell2006a) because of the overemphasis on a single branch of government, feminist political science has frequently failed to notice the effect of the interplay between institutions and the ways in which this profoundly shapes the opportunities and obstacles for advancing a feminist politics. Moreover, feminists have given little attention to the variations in the pattern of interaction across time and place (see Chappell Reference Chappell2010). The time has now come to examine more closely the effect of legal institutions and the judicial personnel appointed to implement legal rules and norms on gender outcomes.

The importance of broadening the scope of our studies to embrace legal institutions is matched by feminists' need to make sure that as the field of gender and judging develops, it adopts a comparative perspective, a point well made by Margaret Williams and Frank Thames in their important article on women's representation on high courts (Reference Williams and Thomas2008). It is apparent to me, as a scholar operating outside of the United States, how often U.S. institutional arrangements are treated as the norm. However, if we look at the operation of Westminster and international political systems, alongside the U.S. congressional one, the U.S. system is problematized and new questions are raised: What difference, if any, does a strict separation-of-powers doctrine make to women's access to judicial roles? Are women's chances of making it to the bench enhanced or curtailed by judicial elections? What difference do differences in formal rules—that is, constitutions—make to the capacity of any judge to challenge the gender status quo? With the arrival of the ICC on the international scene, further comparative questions emerge: Do international level-courts, influenced by a variety of sources including human rights norms and national-level “best practice,” offer better opportunities for the appointment of female judges and a gender-inclusive jurisprudence? What chance is there that developments at the international level will influence the behavior of domestic courts in terms of both their personnel profile and decisions? Will participation of women lead to devaluation of the institution, as has been claimed in other arenas? These are questions for another time, but they do indicate the possibility of an exciting comparative research agenda in the area of gender judging.

The International Criminal Court is a unique institution in many respects. When it started operating in 2002, it became the first permanent treaty-based international criminal law body. Its mandate is more expansive than that of previous and existing ad hoc international criminal law tribunals related to the former Yugoslavia (ICTY) and Rwanda (ICTR). Although the global reach of the ICC is limited in some significant respects, especially given the unwillingness of states such as the United States, China, and Israel to become state parties, it extends further than any previous international court, including the International Court of Justice (ICJ). It has jurisdiction over crimes committed within the territory of a ratifying state or by a national of a state to the treaty operating in other countries. The Rome Statute also gives the United Nations Security Council the ability, under certain circumstances, to refer a crime to the Court that involves a nonstate national or occurs on the territory of a nonsignatory state. Among its many firsts, the ICC and the Rome Statute (RS) which underpins it, provide the most advanced articulation ever of gender justice principles. The Court is a relatively new body and, at the time of writing, is yet to hand down its first ruling. It is therefore too early to offer any evidence about the difference that these provisions have made to the development of jurisprudence. However, it is not too soon to consider why the ICC bench looks so different from those in other jurisdictions or to proffer some views about the likely potential impact of a Court with a majority of female members and a gender justice legal framework within which to work.

Why Does the ICC Bench Look Different from Other Courts?

Six years after coming into operation, the ICC has over 60% women in judicial positions. This is a remarkable achievement given that since its inception in 1922, the 15-member International Court of Justice only ever had one permanent female judge, the former president, Rosalyn Higgins. At both UN ad hoc tribunals, there has been at most three women judges out of 14 serving at any one time (LCHR 2002); and many of the 110 state parties to the ICC themselves have very poor records of female judicial representation. Sweden and Canada come closest with 44% female representation on their highest courts (Williams and Thames Reference Williams and Thomas2008, 459). Leaving aside for the moment the question of what difference these new women judges might play, it is interesting to consider what brought about this outcome in the first place. I suggest that institutional design features of the Rome Statute of the ICC and the role of feminist advocates combined to create opportunities for women to take their place on the ICC bench in record numbers.

The Rome Statute has many unique gender features in relation to judicial appointments. It stipulates that there be “[a] fair representation of female and male judges” [Article 36 8(a)(iii)]. Voting is based on minimum criteria, including a minimum of six male and six female candidates, a minimum of three candidates from each region as defined by the UN system, and a minimum of nine candidates with a criminal law background (List A) and a minimum of five candidates with an international law background (List B). The voting process for judges takes place through a secret ballot of all members of the ICC Assembly of State Parties. Successful candidates must achieve a double majority; that is, they must “obtain the highest number of votes and a two-thirds majority of the States Parties present and voting” (ICC 2009).

The rules for the election of ICC judges were part of a deliberate attempt by the Court's architects to move away from the appointment process used for judges to the UN ad hoc tribunals for Rwanda and the former Yugoslavia, a process that involved nominations from member states of the UN and election by the General Assembly. This process has been widely criticized for being politicized and often resulting in the appointment of poorly qualified candidates. According to the Lawyers Committee for Human Rights (LCHR), the “political gamesmanship and questions of competence … have haunted both ad hoc tribunals.”Footnote ² States too often “put forward under-qualified candidates who were selected based solely on personal or partisan considerations.” Meanwhile “[a]t the international level, the credibility of the election process was diminished by the unseemly practice of vote trading, where states exchanged their votes with each other for posts in various UN bodies or even unrelated international institutions” (Frey Reference Frey2004, 12). The more transparent election process adopted for the ICC was clearly going to be more beneficial for women, who had for so long missed out in the backroom deals to appoint judges to the UN tribunals and to international posts more generally.

On the measure of increasing the number of women on the bench, it does appear that there is a strong link between the design of the Rome Statute and female judicial representation. State Parties to the Rome Statute have taken seriously the provisions to ensure that there is a gender balance in judicial positions. Since the first election, State Parties have not only met but exceeded the provision to elect six female judges. The first election in 2002–3 saw 10 women nominated out of a field of 45. Of these female candidates, seven were elected. At the 2008 election for six positions, women outnumbered male candidates 10 to three. Four women and two men were elected, resulting in a bench with 55% female representation (i.e., 10 of the 18 judges were women, up from eight at the 2007 election). By 2010, the number of female judges reached 11, or 61%.

These results did not come about on their own. During the Rome Statute drafting process, an international feminist legal lobby community, led by the Women's Caucus for Gender Justice (WCGJ), pushed hard for a range of gender initiatives, including women's representation on the bench. The WCGJ wanted the Statute to include a provision for parity of male and female judges (Törnquist-Chesnier Reference Törnquist-Chesnier2007, 458). State Parties rejected this proposal since they themselves were split between supporting a quota system and an open election system with no qualifications (Frey Reference Frey2004, 14; Steains Reference Steains and Lee1999, 377; see also Valerie Hoekstra's essay in this volume). In the end, delegates reached a compromise and decided that minimum voting requirements would be instituted. Since its inception, pressure has been put on ICC State Parties by nongovernmental organizations (NGOs) to put forward qualified female candidates. Such pressure is needed due to the hostility of some states to the notion of female representation on the bench (see Bedont and Hall-Martinez Reference Bedont and Hall-Martinez1999, 76–77, 84; Chappell Reference Chappell and Abu-Laban2008).

Will Women Judges Make a Difference?

What do these female appointees to the ICC mean for advancing gender justice under international law? Before getting carried away with these results, it is important to sound a note of caution. Drawing on research on legislatures, it is clear that increasing numbers of women does not necessarily lead to the substantive representation of women's interests (see Mackay Reference Mackay2008). Recent research about women judges suggests a similar conclusion: women's presence on the bench may make a difference but only so long as they have a feminist orientation (Boyd, Epstein, and Martin Reference Boyd, Epstein and Martin2007; Kenney Reference Kenney2008). For Rosemary Hunter, such an orientation has a number of elements, including a judge listening carefully and respectfully to stories of women's lives, and also telling those stories in her decisions. It also involves

In recent years, there has been evidence of judges with just such a feminist orientation operating at the international level at UN tribunals. For instance, Justices Carmen Argibay at the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery, Navanethem Pillay in the ICTR, and Elizabeth Odio Benito and Florence Mumba in the ICTY challenged gender-based stereotypes to change the way women's experiences of war and conflict are conceived under international law. As a result of their judgments, for the first time under international law, rape was treated as a grave crime equal to torture and other war crimes and crimes against humanity, not just as a crime against a woman's honor as had been previously accepted (Charlesworth and Chinkin Reference Charlesworth and Chinkin2000; Gardam and Jarvis Reference Gardam and Jarvis2001). It was only because of Justice Pillay's willingness to listen to the stories of women that charges of sexual violence were included at all in the groundbreaking Akayesu case, a decision that first recognized rape as a form of genocide (for details, see MacKinnon Reference MacKinnon2006).

What is the chance that similar gender-sensitive decisions will be possible through the ICC? The experience of some of these judges, including Pillay (who retired to become the UN High Commissioner for Human Rights) and Benito, who was elected to the ICC bench, suggests that such views may cross over and have an impact within the ICC context. But, as with other jurisdictions, the influence of individual judges is not guaranteed because (aside from the pretrial chamber) ICC judges sit on panels. As a result, 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.

One of the key provisions of this architecture is found in Article 36 (8)(b), which stipulates that in nominating judges, State Parties “shall also take into account the need to include judges with legal expertise on specific issues including … violence against women or children.” As with all of the gender provisions, the proof is in the implementation. Ensuring that judges meet this criterion has again been largely left up to the strong civil society community surrounding the ICC, especially the Coalition for the ICC (CICC) and its member organization, the Women's Initiatives for Gender Justice (WIGJ) (the successor to the WCGJ). At each election, WIGJ has put together a dossier on all of the judges, including information about their experience in addressing gender equality issues such as publications or related rulings, which has helped to keep gender at the forefront of State Parties minds during the judicial selection process. At the same time, at the annual Assembly of State Parties (ASP), the CICC hosts judicial candidate panels at which state parties and interested NGOs can sound out candidates on all issues. It was apparent to me, having witnessed the panel at the 7th ASP session in 2008, that gender justice issues are at the forefront of delegates' minds in questioning the prospective judges, and even though not every candidate appeared to comprehend fully the nature of the provisions, most made an effort to draw attention to their own expertise in the area.

Judges at the ICC also have an impressive gender justice tool kit in terms of the categories of crimes over which they can make rulings. The areas in which the ICC has jurisdiction are not in themselves new. Genocide, war crimes, and crimes against humanityFootnote ³ have been enumerated in other international treaties. However, the Rome Statute came to codify for the first time a range of gender-based crimes as crimes against humanity and war crimes, thus constituting grave breaches of international law. Included under the category of war crimes are

Similar crimes are enumerated under the category of crimes against humanity [see Article 8(b)(xxii)]. For the first time in an international treaty, gender is defined and included as a ground for persecution.Footnote ⁴ Further, Article 21, prohibiting discrimination based on gender in the application and interpretation of the statute reflected an attempt to integrate gender concerns more broadly within the operations of the ICC.

Gender justice principles are also highlighted under the structural and procedural provisions of the Court. In the statute, the prosecutor is charged with investigating and prosecuting crimes in a way that “respect[s] the interests and personal circumstances of victims and witnesses, including … gender.” He or she is also required to “take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children” [Article 54(1)(b)]. In authorizing the Court to protect victims and witnesses, the statute specifies the need to give due attention to victims of sexual violence, which may include the use of in camera evidence to shield victims from confronting their aggressors in the courtroom. The statute allows victims to make representations to the Court, a provision that has the potential to extend access to justice to women who are victims of human rights violations. It also provides for reparations to victims and establishes a Victim's Trust Fund—both firsts under international law and both expected to offer to women, along with other victims, some compensation for their suffering. Again, these gender justice principles did not magically appear but only became embedded in the Rome Statute because of the external pressure of the feminist activists, often in the face of strong opposition (see Chappell Reference Chappell and Abu-Laban2008).

Initial Outcomes and Conclusions

It is one thing to write rules to encourage a greater sensitivity to gender issues but it is another to put them into effect. Six years after coming into operation, the ICC is yet to hand down a decision. This in itself is a problem for gender justice; for a start it leaves victims of the accused living under the threat of reprisals, which in the case of many women victims means fear of further sexual violence. Such delays go some way in supporting critiques of the effectiveness of international law for achieving justice for women victims of war and conflict (see Mertus Reference Mertus2004). Other challenges have also been apparent, not the least of which is convincing the Office of the Prosecutor (OTP) to address gender-based crimes in the first cases to come before the Court. The decision of the OTP not to include rape as a crime against humanity and a war crime in the Lubanga case, despite extensive evidence for these crimes, was nothing less than shocking for those closely watching the developments of gender justice at the Court (WIGJ 2008). The strong objections made by the WIGJ and other NGOs to the OTP's dismissal of gender-based crimes from the Lubanga case seem to have had some effect: In the indictments to follow, including Bemba and Al-Bashir, gender has become a central focus (though not without some problems. For details, see WIGJ Reference Williams and Thomas2008, 2009).

The role of the WIGJ in the pressuring the prosecutor to take gender seriously, and the use of other strategies such as intervening as amicus curiae in ICC hearings, are important reminders about the crucial relationship between insiders and outsiders in pursuing gender justice through the ICC, and through judicial institutions more generally (see Chappell Reference Chappell, Chappell and Hill2006b; Kenney Reference Kenney2009; Hoekstra this issue). Not one of the gender provisions of the Rome Statute got there without the tireless lobbying of committed gender justice advocates, and it is unlikely that one gender-sensitive prosecution will be pursued or ruling will be handed down without ongoing pressure from external activists, such as the WIGJ and other members of the CICC. For judges on the bench with a feminist orientation, it will be vital to have a vigilant external community to draw upon to help them convince other less gender-aware judges of the significance of these issues in their rulings.

Without the completion of a trial, we cannot assess whether a more gender-sensitive jurisprudence is likely to emerge from this new international court. What we can say is that the ICC is best placed of any court either internationally or domestically in terms of the number of women on the bench and of having the institutional capacity with which to advance gender justice. However, the ICC's rocky start in terms of pursuing gender justice reminds us of how deeply gendered is the practice of international law. No matter that the Rome Statute has been designed with gender equity in mind; the initial cases demonstrate that preexisting and more established gendered norms and path dependencies of international law can reassert themselves and cancel out reform efforts (on “forgetting” in new institutions, see Mackay Reference Mackay2009). Despite the “newness” of the Court, and the number of women on its bench, it is not free from gender biases, and the reality remains that there must be constant pressure from external advocates such as the WIGJ, to ensure that the promise of the Rome Statute is upheld in practice.