Making the Case to End Gender Imbalance on International Courts: Data Matters

On June 16th, American University Washington College of Law’s Academy on Human Rights and Humanitarian Law hosted a panel on “Women’s Representation in International Organs and Tribunals: A Challenge for the Inter-American Human Rights System and Beyond” as part of its “Human Rights Month” programing.

The discussion highlighted recent data showing that women are found in dramatically low numbers on the benches of the majority of international courts, and articulated how —GQUAL– the Campaign for Gender Parity in International Representation – seeks to remedy this imbalance.

One of the key aspects of the GQUAL campaign is to promote a better understanding of the effects of women’s absence or under-representation in these spaces. Parity advocates argue that equal representation of women lends “greater depth, breadth and legitimacy to decisions made by institutions.” Others underscore that on its face, it is troubling that women are not part of the very international bodies that are making decisions about war and peace, genocide, and the scope of human rights protections.

Some scholars and practitioners credit the presence of women as investigators, prosecutors and judges as helping to advance the cause of gender justice before international criminal tribunals in the past decade. For example, female judges like Navi Pillay (International Criminal Tribunal for Rwanda), Elizabeth Odio Benito (International Tribunal for the Former Yugoslavia) and Teresa Doherty (The Special Court for Sierra Leone) helped develop jurisprudence that defined rape and sexual violence as genocide, rape as torture, and forced marriage as a crime against humanity.

To fully understand the importance of women in international tribunals, it is important to look at the whole picture. Women’s presence as judges and prosecutors undoubtedly matter, but perhaps so does their role as defense counsel. How do we glean whether and at what point of the proceedings their interventions matter the most? Does the presence of women change how female victims and participants are treated as others have suggested? As advocates for gender parity, where can we find the data we need to back up our claims that gender diversity matters? It turns out, it already exists in the form of the Gender Jurisprudence Collections (GJC) created by the War Crimes Research Office and the Women and the Law Program of American University Washington College of Law.

The GJC was created in response to a request by gender justice advocates who lamented the absence of a digital case document repository that was comprehensive, searchable, and keyed to significant gender issues. The GJC now contains more than 31,000 documents issued by thirteen international and hybrid tribunals, domestic courts, and human rights bodies. Users can search the database by up to 30 criteria and more than 130 keywords, including: the manner in which crimes are characterized (such as genocidal rape or rape as torture); substantive elements of the crimes (such as the definitions of consent or coercion); and procedural aspects of prosecutions (such as how courts address witness credibility or handle protective measures).

Perhaps the most underutilized search fields for the database are those related to the gender of the individuals who played key roles in the case. The GJC has an entire section of search fields under the category Involvement of Women” that allows researchers to search more than 31,000 documents from not only the ICC and the ad-hoc tribunals, but also as far back as the Nuremburg Trials, by fields such as: Female Prosecutor, Female Judge, Female Victim, Female Victim Participant, Female Reparations Applicant, Female Victim Applicant, Female Witness, Female Accused, Female Defense Counsel, Female Civil Party Lawyer, Female Petitioner/Applicant, and Female Petitioner/Applicant Counsel.

The addition of these search terms were not a mere afterthought, but incorporated into the structure of the database at an early stage after gender justice experts requested that we start tracking this data.

It has been said that “you can’t just add women and stir,” and presumably this holds true for women on international courts. However, the War Crimes Research Office and the Women and the Law Program hope that advocates and researchers will harness current momentum not only to study the impact that the presence of women in key roles has on the outcomes of these international criminal courts, but also to identify specific areas where their presence has changed discourse or strategy in a way that has had positive outcomes for gender justice. This will allow us as a community of advocates to both successfully argue for parity, but also help us to identify best practices that could be shared and evaluated in other contexts, particularly in domestic legal systems.

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