Women on the ICC Bench: Moving Forward and Leading the Way

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.

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ICC Assembly of States Parties: Children and Conflict

An estimated 230 million children live in armed conflict-affected countries. Of these, approximately 250,000 children are involved in the conflicts themselves. Some are used for fighting; they themselves turned in to tools of war. Others may act as messengers, porters, cooks, or sex slaves. The UN Secretary-General’s 2016 report on children and armed conflict identified 58 parties to current conflicts that recruit and use children. This includes 7 government security forces and 51 non-state armed groups in countries such as the Democratic Republic of Congo, Iraq, Nigeria, and Syria. As some of the most vulnerable members of society, children deserve and require concentrated efforts from the international community to protect them in times of conflict, to prevent their use in war, and to aggressively go after those who violate international law by victimising them in conflicts.

On 16 November 2016, the ICC Office of the Prosecutor (OTP) launched its Policy on Children aimed at strengthening ongoing efforts to address atrocity crimes against children as well as providing a framework for helping the OTP in their interactions with children from preliminary investigations to post-trial. On 18 November 2016, Canada hosted a side event at the ICC Assembly of States Parties (ASP) on “Child Soldiers: Prevention and Accountability”. This event united speakers on the preventative efforts of the Roméo Dallaire Child Soldiers Initiative with ones on the accountability measures (from preliminary investigation to post-trial) of the ICC OTP.

“War has changed,” began LGen Dallaire (Ret’d), “therefore our tactics need to change.” As Commander of the UN Mission to Rwanda during the Rwanadan Genocide, LGen Dallaire faced first-hand the horror of children turned into weapons of war and the fundamental moral dilemma all soldiers and police forces face when confronted with an enemy combatant that is not merely a combatant, but also a child. These members of professional forces face the choice: don’t react and either take casualties or give up ground; or, react and have to live with the fact that they have used armed force against a child, they suffer. The Dallaire Initiative aims to address this gap that professional forces have in addressing the child dimension as well as to address the recruitment of children as tools of war. To achieve these ends, it focuses on training, research, and advocacy. Training to military, police, and peacekeepers to provide the necessary tools and knowledge to recognize and prevent the recruitment and use of child soldiers. Research to understand patterns of child recruitment, to identify that such recruitment and use can be a warning sign for mass atrocity and genocide, and to gain insights from former child soldiers. High-level advocacy with states, the United Nations, NATO, the African Union and so on, in an effort to have a direct impact on policy and procedures relating to child soldiers. Critically, the Dallaire Initiative takes a very practical approach to the issue rather than a legalistic approach. In other words, it focuses on practical reasoning for breaking down support among armed forces that recruit and use children, rather than merely on what the law says.  Ultimately, the organization seeks to prevent the recruitment of children before they suffer the horrors of being used as tools of war.

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Regret & Support, Speeches on the Court

This afternoon began the first lengthy session of speeches from States Parties to the Assembly at the World Forum in The Hague. To no one’s surprise, many of the States took the opportunity to address the withdrawal of South Africa, Burundi, and the Gambia from the Court in their remarks and no doubt this will continue to be the case as the speeches continue tomorrow. Overwhelmingly the sentiment from the States who spoke, such as Australia, Canada, Colombia, the Republic of Korea and Slovakia (on behalf of the European Union), was one of regret. Regret that these three States have taken the step towards leaving the Court, rather than continue a dialogue within the Assembly of States Parties (ASP) about their concerns with the Court. Regret that these developments have flown in the face of efforts to see the Rome Statute be truly universal. Regret, because when States parties leave the court, the enforcement of international criminal law becomes harder.

Along with their expressions of regret, States were quick to note that these decisions to withdraw were nonetheless legal decisions by sovereign states, made following the rule set forth by Article 127 of the Rome Statute. They also urged dialogue with these States as well as other States who have expressed concerns in recent weeks and months. As the Representative from Ecuador stated, it is much better to be within an institution if you seek changes, rather than on the outside. However, most States were equally firm in stressing, that while open to and encouraging of dialogue, no compromise of the fundamental values of the Court would be had, they stressed that the integrity of the Court is of utmost importance. Perhaps the strongest voicing of this sentiment came from Switzerland, which declared it would rather have an effective ICC supported by many states, than a weakened court supported by all.

The specific content of these fundamental values was rarely elaborated upon by States; however, Italy clearly and unequivocally stated that the principle of irrelevance of official capacity in Art 27 remains the central pillar of the treaty adopted in Rome in 1998. Canada’s Minister of Foreign Affairs, Stéphane Dion, noted, with regard to Head of State immunity, that equality before and under the law is a bedrock principle of the Court. Finally, Costa Rica stressed that action against the perpetrators of genocide, war crimes, and crimes against humanity should be taken without consideration of the official status of the individual.

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