As the 15th ICC Assembly of States Parties (ASP) closes, there is much work for States Parties and the Court in the year ahead. One important item will be the identification, nomination, and election of judges for the Court. In 2017 the ICC ASP will have the responsibility of electing six new judges. This will be due to the fact that the terms of six judges, five of whom are female (including current president Sylvia Fernández de Gurmendi), will be ending at the start of 2018. Currently, almost half of the ICC’s judges are women. This means that such an important election places the power in the hands of States Parties to either continue moving the court forward with respect to gender representation in international institutions or regressing backwards towards a judiciary disproportionately comprised of men. This comes on the heels of an election for a new United Nations Secretary General, where the hope that the world would see its first female to hold this position was quickly quashed. Instead, António Guterres, a male politician and diplomat from Portugal was named the next Secretary-General on October 13, 2016. Currently, the ICC bench is one of, if not the most, gender representative judiciary in the international justice system but this could all change at the next Assembly of States Parties.
The current favourable gender representation stems, at least in part, from Article 36(8)(a) of the Rome Statute which articulates considerations States Parties must take into account in their election of judges. One such consideration is “(iii) A fair representation of female and male judges.” This was further elaborated upon in a 2004 ASP Resolution which explains the minimum voting requirement for gender. Where the number of candidates from each sex is greater than 10, each State Party must vote for at least 6 men and 6 women. Where there is fewer than 10 candidates of a particular gender, this Resolution articulates a formula which determines the minimum voting requirement. For example, if there are 5 candidates of a particular sex, the minimum voting requirement is 3. Such requirements are progressive for an international criminal institution; however, this progressiveness is limited by the “four round rule”. This means that after four rounds of voting the minimum voting requirement is suspended and the elections are open. This removal of the minimum voting requirements for gender after four rounds of voting could threaten to undo the current gender composition of the bench.
As today marks the final day of the 15th ASP, parties to the Rome Statute now have one year to ensure that the upcoming year will be one of at least maintaining, if not improving, the gender representation of the Court. This means encouraging States to nominate not simply strong candidates, but strong female candidates. A State Party may only nominate one candidate for election, though they are not required to do so. At this time, it is known that Italy intends to nominate a male judge for candidacy based on their statement on the opening day of the ASP. However, there are also whispers that Canada intends to nominate a female candidate – a move that would be welcomed and perhaps even unsurprising given the diversity in the appointment of Prime Minister Justin Trudeau’s 2015 cabinet (comprised of fifty percent female ministers). Mexico also announced its intention to nominate a judge during the ASP, though no information as to the potential candidate’s gender is currently known.
A 2013 Report from the International Commission of Jurists emphasizes the importance of women’s full and equal participation in the judiciary. However, it also highlights the obstacles to achieving such representation. One obstacle is a lack of transparency in nomination and appointment/election processes: women do not always have the same access to the political networking circles many men do. Women also continue to fight against gender stereotypes and norms which have traditionally portrayed men as judges, and women in positions of lesser power and authority. These same arguments were articulated with regards to the recent election of the new UN Secretary-General where many comments regarding the “boys club” UN Security-Council with a “steel ceiling” were noted. This is why bringing the issue of women on the bench at the ICC to the forefront of citizen, NGO, and, perhaps most importantly, States’ minds is of critical importance. Gender representation on the bench is not easily secured and must be worked hard for. It is by no means too soon to start championing the cause.
The Court must not lose the momentum that the ICC has had on the bench by going down the same path as the October United Nations Secretary General election. The fact that the ICC is comprised of close to fifty percent women now is laudable, but the Court’s past success in comparison to other institutions is not a guarantee for its future success. It is important not to compare the Court to less representative institutions but rather to hold the Court to the high standards that it has set for itself through its mandate in Article 36(8) and past judicial appointments. In a time of uncertainty and rough waters within the Court, given the notice of intention to withdraw from the Rome Statute of three African states and tense budgetary concerns, it is important that the Court strives to re-establish its credibility and legitimacy. In Achieving Sex-Representative International Court Benches, Nienke Grossman’s discussion suggests that if states keep gender representation in the back of their minds and ignore the pool of suitable female nominees when making recommendations for judicial candidates, it may only further exacerbate challenges to the Court’s legitimacy and allegations of bias in case selection. As such, in the 365 days the members of the Rome Statute have until the opening of next year’s 16th Assembly of States Parties, it is their duty to spend as much time as possible identifying and nominating their nation’s strongest women to be represented on the ICC judiciary.
This post was co-authored by Carrie Koperski. Carrie is a third year Juris Doctor student at the University of Alberta who is currently completing an exchange term at Utrecht University in Utrecht, Netherlands. Carrie has thoroughly enjoyed her first attendance at the ASP and looks forward to closely following developments within the Court.
The Canadian Partnership’s Delegation to the 15th Assembly of States Parties to the Rome Statute of the International Criminal Court is supported by the Social Sciences and Humanities Research Council of Canada through the project “Strengthening Justice for International Crimes: A Canadian Partnership”.