Model Guidelines on Non-Discrimination, Equality, and Diversity within Research

We have received positive feedback from women and men around the world and have received a request to include equal pay standards. Hence, we re-publish the updated Model Guidelines with a special thanks to Jennifer Svanfeldt, Partner at the Women Owned GBG Employment Defense Counsel, who kindly drafted the new section on equal pay. Additional suggestions are welcome, so please do let us know if there are other issues we should address!

Other helpful guidelines and links to training videos are: the Guide from York U, the Guide from NYU, the policy from Oxford University; Oxford harassment training; Buffalo University, and the University for Peace on retaliation and harassment.

If you feel that you are being subjected to discrimination or harassment please keep a written record of what you have experienced.

The Model Guidelines

The Faculty of Law is committed to providing a positive research environment which recognizes diversity as a strength and source of creativity. The Faculty of Law seeks to enable researchers of diverse backgrounds to be able to pursue their intellectual aspirations and enjoy a meaningful careers. The increased recruitment of women and persons of diverse backgrounds to research positions and research leadership positions is an aim of the Faculty of Law. For women and persons of diverse backgrounds to enjoy equality in research programs, this requires equal right to inclusive participation, respect, and access to possibilities for advancement and enjoyment of the workplace environment. Research programs/groups are obligated to prevent discrimination by taking concrete action to correct discriminatory attitudes and structures and promote a respectful workplace environment.

Positive Structural Actions The Faculty of Law will take specific measures to ensure that all researchers, irrespective gender, transgender identity or expression, national, racial or ethnic origin, religion or belief, disability, sexual orientation or age will have equal access to research opportunities and shall not be subjected to diminished prestige and lack of power.

Recruitment: Research programs will make best efforts to recruit women and persons of diverse backgrounds as researchers and research leaders- through processes that are inclusive, clear, accessible, and transparent. The Faculty of Law will endeavor to enable researchers to pursue research-related teaching.

Evaluation: The heightened visibility of women and persons of diverse backgrounds as researchers and research leaders risks increased pressure and overly critical examination of their performance, prompting overachievement or underachievement. Evaluations should be designed to identify such risks and respond with an adequate strategy.

Transparancy: The Faculty of Law commits to upholding the principle of transparency in recruitment, evaluation, advancement, and demotion/dismissal of women and persons of diverse background within research programs.

Reporting: Research programs will submit reports on what actions they have taken to promote equal participation and advancement of women and diverse researchers. Research groups are to identify and correct both formal and informal mechanisms of subordination and marginalization. Research Leaders are to set empowerment goals for female and diverse researchers at all levels. LIMU will conduct an evaluation in situations where there are women leaving research projects.

Prizes and Citations: The Faculty of Law will commit to nominating women for research prizes, maintain a bibliography of research by women, promoting a citation policy which reminds academic staff to cite women researchers, assist women researchers in attaining access to research conferences, etc.

Seminars/Workshops to promote Advancement and Retention of Women Researchers:  The Faculty of Law commits to increasing the appointment of women to Research Leadership positions and ensuring retention of women leaders. The Law Faculty will offer workshops to women researchers on relevant topics, such as improving the CV, writing research applications, publishing in international journals, Understanding Gender Dimensions of Leadership/Women Role Models. Women researchers at all levels will be given information on their rights and possibility for redress.

The Faculty of Law will also offer regular gender training to Research Leaders to promote awareness, such as Recognizing Unconscious Gender Bias, Devaluation, Exclusion, and Stereotyping when evaluating and interacting with women research staff, Strategies for Retention of Women Research Leaders, Supporting the Work-Life Balance, etc. Research leaders are to understand that commitment to gender equality is measurable in words and actions.

Research Forum: The Faculty of Law will establish a Research Forum where researchers can meet to discuss research ideas and experiences with each other and discuss gender equality practices.

Mentor Program: Women researchers and researchers of diverse backgrounds may benefit from access to mentors to discuss the challenges of pursuing research.] The Faculty of Law will expand the mentor program to encourage women researchers and researchers of diverse backgrounds (including research fellows, researchers, and research leaders) to seek and serve as mentors.

Access to research assistance: The Faculty of Law will provide research assistance to women researchers in order to facilitate meeting research deadlines.[

Mobility: Women researchers have lower rates of mobility. One aspect is the challenge presented by combination of parenthood responsibilities with a research career. The Faculty of Law shall aim to solicit funds to create a grant for parents seeking to pursue research stays abroad in order to support costs relating to childcare, education, or other costs related to the maintenance of children abroad.

Women researchers will not be forced to commute away from small children when part of a research project. Facilitation of part-time physical presence should be pursued in order to support the balance of family commitments and academic career.I

Equal Pay: The Faculty of Law will commit to compensating researchers and research leaders who perform substantially similar work equitably when viewed as a composite of skill, effort, and responsibility, and will regularly review compensation to ensure that researchers who perform substantially similar work are being paid equitably.  The Faculty of Law will further commit to ensuring that starting pay and other compensation decisions are based on factors such as relevant prior experience, skills, performance and responsibility. The Faculty of Law will not rely on prior salary to justify a pay difference between researchers of the opposite sex, or different race or ethnicity, who are performing substantially similar work.

Individual Discrimination, Harassment, Exclusion, Devaluation & Tokenism

The Faculty of Law is committed to countering discrimination, exclusionary practices, devaluation of research, humiliation, and harassment within research programs and recognizes a no-tolerance position on these practices. Research staff shall not be subject to discrimination on the grounds of sex, ethnicity, age, disability, or sexual oriention.

The Faculty of Law will provide a course on discrimination, harassment, exclusionary practices, marginalization, devaluation of research, and stereotyping (“overly-sensitive-difficult-insubordinate-oppositional”) to research staff and disseminate these guidelines. Passive-aggressive exclusion is unacceptable. Examples of such behavior include failure to include a researcher in meetings or events, ignoring or overlooking a researcher in meetings and events, subtle insults, forgetting to cite or list a researcher in reports, devaluation of research, and failure to provide constructive feedback- instead providing unclear feedback or no feedback. Micro harassment, academic harassment, and cumulative acts of unconscious stereotyping, harassment, bullying, humiliation, abuse of power, or discrimination may create a hostile workplace and inflict damage. Harassment and discrimination may be based on inter-sectional grounds, such as race and gender. Researchers who experience discrimination or harassment risk psychological stress, disease, social mariginalization, reduced productivity, reduced trust in the leadership, isolation, reduced opportunity to advance in her career, and increased risk of withdrawal from academia.

Social Media: The Faculty of Law will seek to provide a safe work environment for women researchers by taking measures to ensure that women will not be harassed by employees or students on social media.

Definitions of Discrimination and Harassment

EU Directive 2006/54/EC of 5 July 2006 on the Implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

Article 2- Definitions

Direct Discrimination- where one person is treated less favorably on grounds of sex than another is, has been or would be treated in a comparable situation

Indirect discrimination– Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion, or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary

Harassment- Where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment

Sexual Harassment– Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment

Tokenism- The achievement of gender balance among researchers and research leadership is valued by Research Funds, such as the European Research Council. It is important that women researchers not be treated as tokens within research programs, in which they are recruited because of their gender in order to prove the non-discriminatory quality of the program. They are permitted to form part of a research program but not allowed to enjoy full participation due to coercive, authoritarian treatment, denial of advancement opportunities, exclusionary practices, psychological stress, alienation, devaluation, or demotion.  These practices carry a risk of additionally promoting gender stereotypes (the workaholic, the mother, etc.)  This results in demotivation, frustration, negative self-image, isolation, marginalization, and reduced aspirations and performance.

Complaint Mechanism: Persons who experience discrimination, harassment, or exclusion are to contact the Head of Department. Staff who witness discrimination or harassment have a duty to report the incident. Persons who file reports shall be protected from reprisals and given appropriate support. All Department Heads are to inform researchers about the availability of these procedures.

Termination, Dismissal, or Demotion within Research Programs

The Faculty of Law will conduct a gender assessment of termination of contract, dismissal, and demotions involving women within research programs. All such proceedings must meet procedural requirements of written notice, identification of substantive grounds for termination, representation by union and administration, and fair opportunity to respond.

Documenting a Demotion

The project director or manager must be able to produce specific documentation in order to support an involuntary demotion. Examples of specific documentation include a poor performance evaluation, disciplinary warning letters, or documentation of lack of work, reorganization, or change in sponsored program needs.

LIMU, the Faculty Administration, and the Union must assist and advise project directors and managers in documenting a case for demotion.

Notifying Researcher and Reviewing a Demotion

The LIMU, administration, and Union must review the supporting documentation for a demotion before a demotion is implemented.

If a researcher elects a voluntary demotion, the union or administration must be available to counsel the employee.

Providing Notification Memorandum to Researcher/Written Request by Researcher

If the demotion action is involuntary, the project director or manager must provide, after consultation with the office responsible for personnel matters, a written notification memorandum to the researcher who is being demoted. The written notification memorandum must explain the reason(s) for the demotion, the effective dates for the demotion, and whether the demotion is temporary or permanent.

For a voluntary demotion, the researcher must provide his or her project director or manager with a written request for the demotion.

Retaining the Notification Memorandum/Written Request

For involuntary demotions, a copy of the notification memorandum sent to the researcher must be retained in the personnel file. When a researcher requests a voluntary demotion, a copy of the written request must be retained in the personnel file.

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WIIS logo

Women in International Security (WIIS)-Canada is proud to invite applications from graduate students to participate in its 12th annual Workshop, to be held at the University of Toronto’s Munk School of Global Affairs from June 19-21, 2019. WIIS-Canada is a national network dedicated to advancing the position of women students, scholars, and practitioners in the field of international affairs, defence, and security. Up to 35 graduate students will be selected to present their research and take part in skill-building, networking, and mentorship exercises with subject-matter experts from academia, government, military, and the non-profit and private sectors.

http://www.wiiscanada.org/

This year’s theme, “Security and Power in a Tumultuous World Order” offers participants a platform to survey and analyze the dramatic changes in international security and cooperation since the 2016 United States’ general election. In addressing these challenges, the workshop seeks to diversify the voices in defence and security, encouraging dialogue between traditional and critical approaches, as well as theory and practice.

This year, we seek two types of presentation from graduate students interested in international security, broadly defined. First, we invite five-minute thesis proposals from junior graduate students to receive feedback on early-stage projects. Second, we invite senior graduate students to propose ten-minute presentation on current research.

  • Tensions between national and international security
  • Canada-US relations
  • Shifts and transformations in the international system
  • New actors in international relations and security
  • Indigenous global politics
  • Diplomacy and international cooperation
  • Feminist methods and methodologies in International Relations

Please send questions and abstracts of a maximum of 250 words, together with a short bio of 150 words, to workshop@wiiscanada.org by Friday March 22, 2019. While we do not expect complete papers to be submitted prior to the workshop, selected participants must submit a detailed outline of their presentation to the organizers by June 1st, 2019.

*WIIS-Canada welcomes workshop applications from all genders.

The Legality of President Trump’s National Emergency Declaration

On February 15, President Trump declared a national emergency, based on the immigration situation along our southern border.  President Trump plans to use the national emergency in order to access funds previously allocated to the Department of Defense (DoD) to build a border wall.  As most of our readers know, Congress has previously refused to allocate specific funds toward the construction of a wall; President Trump can bypass Congress and access DoD funds which have not been earmarked for another specific purpose through emergency powers. The purpose of this post is to discuss the legality of such a presidential emergency declaration – in light of immigration data itself, and under both constitutional law as well as under federal statutes.  For previous posts about this topic, see this excellent compilation on Just Security.

President Trump has claimed that the immigration situation along our southern border is one constituting a national emergency, because of high numbers of immigrants attempting to enter the United States, but also because of such immigrants’ ties to terrorism and/or the drug trade.  Immigration data does not support this claim.  Net immigration numbers have been steady, and the number of border apprehensions along our southern border is at a historically low number.  In fact, in 2000, the Customs and Border Protection (CBP) had apprehended roughly 1.6 million individuals along the southern border; that number is down to slightly below 400,000 in 2018, and to roughly 300,000 in 2017.  In addition, the number of undocumented aliens in the United States has been steady, at around 10.7 million.  Out of thousands of suspected terrorists who have entered or attempted to enter the United States, only a handful have done so by land.  And the vast majority of illegal drugs enter the United States through legal ports of entry, and are not carried by illegal immigrants who attempt to enter by land, through our southern border, by walking across the desert and swimming across the Rio Grande.  Thus, actual data does not support President Trump’s assessment of immigration at our southern border.

Under the United States Constitution, the President is the commander-in-chief and has inherent constitutional authority to act.  Presidential powers are not unlimited however.  In the famous Youngstown case (1952), the Supreme Court held that President Truman did not have inherent constitutional authority to seize the operation of steel mills during the Korean War, because Congress had not authorized him to do so.  Justice Jackon, in his concurring opinion, wrote that when the president acts in direct contravention of congressional wishes, his power is at its “lowest ebb.”  The Youngstown precedent may be problematic for the Trump Administration: it may be argued that Congress has specifically refused to authorize funding for the border wall, and that the President is acting against Congressional wishes, so that his power would be at its “lowest ebb.”  Under this paradigm, President Trump’s actions may not be upheld as constitutional. Some have argued, however, that the President’s actions may be validated by the current conservative majority of the Supreme Court, in light of a subsequent Supreme Court case, Dames & Moore (1981).  In Dames & Moore, the Supreme Court upheld President Carter’s and President Reagan’s presidential actions to implement the Algiers Accords, ending the Iranian hostage crisis, which consisted of lifting sanctions against some Iranian assets in the United States, suspending litigation against Iran in U.S. courts, and funding the Iran-United States Claims Tribunal.  In this case, the Supreme Court found that the President had constitutional authority to act because Congress had implicitly authorized this particular presidential action.  Thus, some have argued that the Supreme Court is likely to defer to the executive branch, following its Dames & Moore precedent, because Congress has implicitly authorized wall construction, through the 2006 Secure Fence Act, which authorized the construction of fencing along some points of our southern border.  It may be argued that the Secure Fence Act did not provide congressional acquiescence toward the construction of a lengthy wall along the entire border, but that the act instead authorized limited fencing at concrete points of our border.  Thus, it may be argued that Congress did not implicitly authorize wall construction.  Nonetheless, it is difficult to predict how the Supreme Court would rule on this issue; the Court would be likely to split along its conservative/liberal membership.

Under federal law, Presidents can declare emergencies under the National Emergencies Act of 1976.  Pursuant to this Act, a President has to inform Congress about the emergency, and has to identify which other statutes that have emergency provisions in them the President plans to rely upon.  Since the Carter era, 31 emergencies have been declared by our presidents.  According to the Brennan Center for Justice, there are 123 statutes with emergency provisions embedded in them; out of these statutes, two are relevant in this situation.  Section 2808, Title X, provides that in case of a national emergency which requires the use of armed forces, the Secretary of Defense may undertake the construction of military projects necessary to support such armed forces.  Such construction projects may be undertaken using funds previously allocated to the DoD, which have not been earmarked for another specific purpose.  It is not at all clear that immigration enforcement along the southern border requires the use of armed forces.  In fact, immigration enforcement is a civilian function, accomplished through Immigration and Customs Enforcement and CBP.  Moreover, it is not clear that the construction of a wall is necessary to support armed forces.  Even if armed forces were required for immigration purposes on the border, they could be supported through technology, civilian human resources, weaponry, etc.  Thus, it is not certain that Section 2808 applies in this situation and a court, including the Supreme Court, could decide not to validate President Trump’s reliance on this law.  In addition, Section 2293, Title 33,  provides for reallocating funds for civil works during national emergencies. Similar to section 2808, this provision applies to any national emergency that “requires or may require use of the Armed Forces,” meaning it would raise the same legal issues as those described above. In addition, this provision allows the DoD to reallocate funding between already authorized projects, but not to undertake new, unauthorized ones.  And, this section only allows for projects which are “essential to the national defense.”  It is uncertain that the construction of a wall is essential to our national defense.  Moreover, even if this section were used, it is unclear how much funding President Trump could access, because section 2293 simply allows for the reprogramming and reallocation of existing funds, which may be insufficient for wall construction.  In sum, it is uncertain whether President Trump has the requisite statutory authority to implement his emergency declaration, as both of the sections discussed above can be interpreted as not authorizing the construction of a thousand-mile wall along our entire southern border.

While it is difficult to predict what will happen, it is certain that legal challenges are on the way.  Multiple groups, including state attorney generals and the ACLU have indicated that they will sue the Trump Administration.  And it is likely that the legal challenge will end up before the Supreme Court.  The fate of a border wall is uncertain for now, and the Trump Administration may be on shaky legal ground.

Can two fingers tell the truth?

In many countries around the world – still more than 20 as of late 2018 – the state of a woman’s vagina is given more importance than her words. Virginity testing is, indeed, still common practice in these countries and affects two main categories of women: the survivor of rape wishing to get justice, and the to-be married. In the latter case, the test aims at assessing the ‘purity’ or ‘chastity’ of the women by verifying the presence of their hymen (e.g. in 2018, Moroccan civil society started an important movement against the virginity test imposed on to-be married women through a very explicit slogan : « my vulva belongs to me »). In the former case, the one discussed more in-depth below, the main practice imposed on rape survivors is the famous ‘two-finger test’.

It is a very straightforward test: the doctor inserts two fingers in the vagina of the survivor to assess its size and elasticity. Depending on the result, the doctor draws a conclusion on the sexual habits of the survivor. This conclusion is then used in trial in favor of, or (much most likely) against, the testimony of the survivor. If she is considered sexually active – oftentimes deemed an “immoral behavior” – she will lose credibility and the rape case will be discarded. Not only is this conclusion disturbingly wrong but it also reduces the crime of rape to an act of penetration of the vagina. Although in concordance with the legislations of the countries where the test is performed, this highly conservative interpretation of the crime is inconsistent with the reality of its commission.

In October 2018, a UN joint statement by the World Health Organization, the Office of the High Commissioner for Human Rights and UNWOMEN called for the ban of any kind of virginity testing, including the two-finger test. The UN agencies recalled that these tests lack medical utility and scientific veracity in establishing any sexual activity, and can have a deeply harmful impact on the survivor (for an in-depth analysis of the relevance of such test and its harmful consequences see here). This call, long awaited, is of great support to the human right defenders, NGOs and other entities fighting to eradicate the practice. It may also bolster State-level developments with the same aim.

The call mirrors the international standards on prosecuting sexual violence, according to which the sexual past, behavior or habits of a survivor cannot be taken into consideration by judges. See, for example, the Rules 70 and 71 of the Rules of Procedure and Evidence of the ICC according to which “Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness”. Taking this into account, “a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness”.

Indeed, virginity testing also constitutes a violation of the survivor’s international human rights, which dictate a right to non-discrimination on the basis of sex, physical and sexual integrity, prohibition of cruel, inhuman or degrading treatments, right to privacy, equality before the Courts and Tribunals and equal protection of the law (see mainly articles 2,3, 7,17,14, 26 of the International Covenant on Civil and Political Rights).

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Introducing Dorine Llanta

It is a great pleasure to introduce our new IntLawGrrls contributor Dorine Llanta!

Dorine is a Legal Researcher at Women’s Initiative for Gender Justice, working specifically on the ‘Call It What It Is Campaign’ launched in December 2018. She is also a PhD Candidate at the University of Perpignan (France). Her research focuses on the repression and accountability of sexual violence in international and national settings. 

Prior to her current role, Dorine worked with the Centre for International Justice of Amnesty International, based in The Hague, and focuses on ICC-related legal analysis. She participated in the organisation of Amnesty International’s side-event at the 17th Assembly of States Parties to the Rome Statute on the accountability for crimes committed in Nigeria. She also worked as a legal advisor to Asylum Access Ecuador, an NGO providing legal assistance to asylum-seekers in Ecuador, South America. Through these experiences she gained substantive expertise on the prevention and accountability for sexual and gender-based violence. 

Heartfelt welcome!

Non re-appointment of Judge Akay – Is International Judicial Independence under threat?

The challenges to independence of international judiciary has again come to the fore-front with the non-reinstatement of Judge Aydin Akay Sefa for a new term by the UN to the United Nations Mechanism for International Criminal Tribunals (“UNMICT”).

Post-coup d’état in Turkey (2016), Judge Akay was arrested by the Turkish government and later convicted for his alleged connections to the Gulenist movement which was held responsible for the coup. This happened while Judge Akay still presided over the UNMICT Appeals Chamber. The UN Office of Legal affairs asserted that Judge Akay enjoyed diplomatic immunity. Judge Akay was convicted and sentenced to seven years imprisonment. While the appeal to this judgment was pending, Judge Akay was not re-appointed for a fresh term at the UNMICT. The incident sparked a fresh discourse on diplomatic immunity available to the judges of international tribunals. Judge Theodore Meron ordered[DD1] [r2]  the Turkish government to “cease all proceedings against Judge Akay” and to release him from detention [DD3] [r4] . Despite the order, the Turkish ministry maintained that Judge Akay did not possess diplomatic immunity.

This post aims to analyze diplomatic immunity of judges of international tribunals and its connection to judicial impartiality in light of Judge Akay’s conviction and subsequent non-reappointment.

Diplomatic immunity has emerged as customary international norm ever since the adoption of the Vienna Convention on Diplomatic Relations (“VCDR”). VCDR grants immunity from arrest detention and from criminal jurisdiction to diplomatic agents. The Convention of Privileges and Immunities of the United Nations (“The New York  Convention”) elucidates the importance of these immunities as a tool to safeguard the members to perform their functions independently.

While interpreting the New York Convention, the ICJ in the Mazilu case held that a UN official protected under the convention is accorded immunity from his State of nationality and/or State of residence on account of him being an international official. The ICJ in the case of Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights clarified the status of UN officials in the New York Convention and held that in cases where immunity of  a UN agent is brought before the domestic Court, the UN Secretary-General must notify the State of the existence of diplomatic immunity and this will be given  utmost preference unless there exists compelling reasons to defy it

Further, Judge Meron in the hearing of  Ngirabatware case clarified that if a judge is replaced on the basis of a State’s political action, the judges will become cautious while delivering judgements adversely affecting the independence of  judiciary.

Article 19 of the UNMICT asserts that an independent and impartial judiciary is indispensable for the right to fair trial. This is reflected even in other human rights instruments. It is also specifically recognized in other regional texts, such as  the Resolution on the Respect and Strengthening of the Independence of the Judiciary, and the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.

The UNMICT Statue incorporates the New York Convention. The Convention accords privileges to three categories of officials: UN officials, experts on missions for the UN, and member States representatives. These officers are granted functional immunity i.e., the actions of the judges in their official capacity are accorded immunity. Judges of the UNMICT are accorded the status of UN officials. Under the UNMICT statute, any judge “engaged in the business of the tribunal” enjoys the same immunities as a diplomatic envoy under international law. This principle mirrors section 19 of the UN Convention as well.

For interpreting “diplomatic envoy”, reference ought to be made to the VCDR. Article 31 of VCDR states that a diplomatic agent “shall enjoy immunity from the criminal jurisdiction of the receiving State”. Thus, article 31 provides for “personal immunity” to diplomatic envoys and thus, by reference, the judges of the UNMICT ought to be accorded personal immunity during their tenure.

The judges of the UNMICT should be accorded both functional and personal immunity. Moreover, Turkey acceded to the UN Convention without making any reservations regarding the personal immunity guaranteed under the Convention. Additionally, Turkey was a member of the Security Council (“SC”), when the UNMICT statute was adopted and voted in favor of the adoption. The SC resolution also mandated that all States fully co-operate with UNMICT and its Statute.

Moreover, implementation of independence of judiciary is arduous in a global forum. It has often been argued that the success of international judiciary will always be doubtful due to the lack of a unified global government, to enforce the mandates of the court. To elucidate, Judge Akay had diplomatic immunity and the UNSC notified Turkey of his immunity and sought his release. Judge Meron also ordered Turkey to release Judge Akay. However, Turkey did not follow the directive order and subsequently convicted him.

The only redressal that UNMICT and the UNSC can resort to is to issue public declarations and to urge the international community to put pressure on Turkey to comply with the UNMICT mandate. This will lead to practical difficulties and a certain loss of legitimacy of international judicial institutions.

Another criticism that most international frameworks face is the influence of western hegemonies in the appointment and reappointment procedure of the judiciary. Diplomats who are political actors of a State, nominate and then vote in the election of these judges. This gives the appointment and reappointment of judges a political tinge. As per the UNMICT statute, reappointment is done by the Secretary-General in consultation with the SC and the General Assembly. Judge Akay was not reappointed and the Secretary General did not offer any reasons for the non-reappointment showcasing the lack of transparency in the proceedings.

To establish judicial independence in the international realm, steps need to be taken to reduce extraneous State political influences. One solution is to have a collegium of international judges that includes presidents and vice presidents of all international tribunals. They should be accorded equal voting rights while electing judges of a particular tribunal and the vote should be on the basis of the nominations made by member States. Further, the reappointment is done solely by the collegium, irrespective of the member States’ political agendas. This will reduce political influence in the election process.

However, the nationalities of judges in the international tribunals can often overlap, possibly excluding certain member States in the collegium. In such a scenario, the modalities of the proposed model can be refined to include the Minimum Voting Requirement (“MVR”) which was devised to ensure adequate representation. MVR was most recently used for the election of judges at the ICC where the States have to mandatorily vote for a stipulated number of candidates of a particular gender or region.

Independence bestows on the judge the freedom to decide a case fairly and impartially––[j]Judges must not only do justice but must also let it be seen that justice is being done”. The threat to judicial independence can only be tackled by bringing policy changes in the appointment proceedings of judges in the tribunals.


Introducing Aparimita Pratap

It is our great pleasure to introduce our new IntLawGrrls contributor Aparimita Pratap!

Aparimita is a final year student at the West Bengal National University of Juridical Sciences Kolkata. Through her work with human rights activists and lawyers, she has developed a keen interest in human rights law and policy. She also closely follows and has conducted research on issues relating to international criminal law, public international law, refugee law, migration law and humanitarian law. She has previously worked with Centre of Policy Research where she got insight into issues faced by indigenous tribes with respect to their land, and at chambers of Jawahar Raja where she worked extensively on queer issues, sexual harassment, domestic violence, trafficking and labour law. She has also previously written on issues on the overlap of human trafficking and international criminal law. Through moot courts, research projects and everyday reading, Aparimita has nurtured an avid interest in rights-based approaches to law and legal theory.  

Heartfelt welcome!