women judges

Open Letter to the African Union: Africa’s Opportunity to Address the Gender Diversity Problem at the International Court of Justice

/ J. Jarpa Dawuni, Ph.D. / Leave a comment

Women of Africa are increasingly demonstrating their resilience in global leadership, financial institutions, international criminal law, the United Nations, the World Bank and the International Criminal Court to name a few. But there is more that needs to be done— the November 11, 2020 elections to the bench of the International Court of Justice (ICJ) provides a unique opportunity for member-states of the African Union to once again demonstrate their support for gender equality by supporting the candidature of Judge Julia Sebutinde of Uganda—the first and only African woman to serve on that court.

Currently, women represent only 20% of the judges on the bench of the ICJ. As the ICJ is poised to celebrate its 75th Anniversary in April 2021, it is noteworthy that historically, out of the 108 judges since the court was established, only four have been women. To date, the principal judicial organ of the United Nations remains the most gender-imbalanced international court in the world. This imbalance has prompted scholars and advocacy groups such as the Gender Equality Campaign (GQUAL) to engage in advocacy for diversifying the ICJ bench. On November 11, 2020, elections will be held to fill five judicial positions on the ICJ. Of the eight candidates on the ballot for this election, three are women; Julia Sebutinde of Uganda, Hanqin Xue of China, and Maja Seršic, of Croatia.

In 2012, Judge Julia Sebutinde made history as the fourth woman to be elected to the bench of the ICJ in over 60 years of the Court’s existence. Judge Sebutinde’s election was remarkable for reasons beyond her gender: she was also the first woman from the African continent to be elected to the ICJ, compared to the 14 African male judges who sat on that court before her. As an international judge, Judge Sebutinde’s appointment signaled the intersections of race, gender, geographical location, and other identities that women from non-western societies must navigate. Judge Sebutinde’s journey to the ICJ, was as a combination of an unwavering ambition to become an international judge, and professional experiences spanning 41 years, having has served as a judge and jurist at national and international levels, including as a judge of the High Court of Uganda and the Special Court for Sierra Leone. 

Judge Sebutinde’s multiple and intersecting identities of race, gender, geography, as well as her professional experience  are reflective of her journey to the international bench, a journey which she describes as ‘different threads that were woven into a kind of cloth, the kind of cloth that I now am’ (quoted in Judge Julia Sebutinde: An Unbreakable Cloth,” in International Courts and the African Woman Judge: Unveiled Narratives.

Judge Sebutinde’s journey as the first woman from an African country to sit on the ICJ is symbolic of the increasing number of African women judges sitting on international courts since 2006.  As one of the most gender-imbalanced international courts, the upcoming elections in November to fill the five vacant seats on the bench of the ICJ provides a unique opportunity for the Africa group of States to back the nomination and election of a strong candidate—who just so happens to be a woman!

Judging Julia Sebutinde

On Merit

Judicial selection processes to international courts aspire to meet the highest standards of merit, integrity, professionalism, equal opportunity, inclusion, and diversity. Julia Sebutinde possesses a total of 41 years of experience as a judge and jurist at national, regional, and international levels. Her expertise spans public international law, international humanitarian law, international human rights law, the law of the sea, environmental law, and international criminal law. As a judge at the ICJ since 2012, Judge Sebutinde has contributed to 40 Judgments, 65 Orders of Court, and an Advisory Opinion. Besides her judicial functions, she has served on the Court’s essential committees, including the Chamber of Summary Procedure, the Budgetary and Administrative Committee, and Head of the Information and Communications Technology Committee of the Court. As an incumbent judge, she has experience in the internal operations of the Court. She has initiated key internal reforms that have contributed to strengthening the ICJ internally, including internal justice for staff members and the modernization of the Court’s processes.

Judge Sebutinde’s knowledge and grasp of international law builds on her experiences as Judge of the Special Court for Sierra Leone (SCSL) (2005-2010); and Presiding Judge of Trial Chamber 2 of the Special Court for Sierra Leone (2007-2008 and2010-11). Judge Sebutinde’s contribution to jurisprudence is captured by international law professor Nienke Grossman when she notes;

Among Judge Sebutinde’s most noteworthy individual opinions during her time on the Special Court are a separate concurring opinion regarding “forced marriage” in the AFRC Trial and a dissenting opinion on whether to accept a late brief by defense counsel in the Taylor trial. Judge Sebutinde’s separate concurring opinion in the AFRC trial explored the legal contours of “forced marriage” and highlighted the testimony of expert witnesses on the subject.

Judge Sebutinde has written many declarations and separate opinions appended to the judgments of the ICJ, thus contributing to its jurisprudence, including a separate opinion to the Chagos Advisory Opinion, in which she elaborated on the right to self-determination in the context of decolonization as having attained peremptory status (jus cogens) under customary international law, from which no derogation is permitted.

Judge Sebutinde has delivered numerous papers and public lectures and holds several international awards, including two Honorary Doctorates, in recognition of her contribution to international peace and justice. Having served on the ICJ bench since 2012, Judge Sebutinde brings with her the knowledge and skills of an incumbent judge who has demonstrated that she understands the internal workings of the Court and has contributed to international law through her judicial opinions.

On Process

Fourteen male African judges preceded the arrival of Sebutinde as the first African woman judge at the ICJ. The practice has been for the African Union (AU) to endorse the re-election bid of incumbent judges contesting for a second term. Judge Julia Sebutinde is the first and only African woman on the Court, and the first judge whose bid for a second term has not been formally endorsed by the AU and is instead challenged by two male competitors. While AU endorsement does not necessarily mean an automatic election, the fact that the first woman candidate’s bid for re-election has not been endorsed by the AU, calls for further reflection on promises of gender equity in representation. The AU must honor the customary practice of supporting incumbent candidates for re-election by openly endorsing the re-election bid of the incumbent candidate who just so happens to a woman.

On Gender Equality

Gender equality does not mean that women should be nominated or endorsed at the expense of men. The ICJ’s infamous historical record as one of the most gender-imbalanced courts in the world requires deliberate action in addressing this disparity. All the former male African judges of the ICJ received the AU’s endorsement, and each one served two terms (unless they died in office or voluntarily resigned). Why is the AU refusing to endorse the first and only African woman judge? The lack of endorsement by the AU should send a chilling signal to all member States, international organizations, civil society advocacy groups, women’s organizations, and all individuals interested in gender diversity, inclusion and equal opportunities for all sexes. The AU must affirm its commitments on gender equality contained in multiple legal instruments at the regional and international levels. The election of international court judges should be of concern to all members of the international community. As a principal judicial organ of the United Nations, the bench of the ICJ should symbolically reflect the world’s gender diversity.

The AU must hold true to the progress within the AU system as demonstrated by the election of women judges to the ACtHPR—making it the most gender-balanced court in the world currently. In electing judges to the ICJ, the AU and individual African states have been presented with a unique opportunity to showcase to the world that qualified African women candidates have equitable and strong support from member-states of the AU to serve in international organizations. The AU must live up to its commitment to promoting gender equity, equality, inclusion, and diversity as espoused in the Maputo Protocol. The AU must continue the progress made, as seen in the number of women represented in the African Commission and the African Court (ACtHPR). The African Union must live up to its espousal of gender equality by endorsing the incumbent candidate’s re-election—who has the merit, comes with a wealth of international law experience, and just so happens to be a woman!

**An earlier version of this post was published on the blog of the Institute for African Women in Law.

In passing: Judge Patricia Wald (1928-2019), IntLawGrrls contributor and inspiration

/ Diane Marie Amann / Leave a comment

Over the last decade it was my honor on occasion to invite Judge Pat Wald to join in a project, to contribute a writing or to speak at an event. Invariably she accepted with the same wry caveat: “Yes, if I am still here by then.” Happily she always was still “here,” enlivening every project to which she contributed. But now she is not. News media reported that Patricia Anne McGowan Wald died in her Washington home yesterday, having succumbed at age 90 to pancreatic cancer.

Many obituaries will focus on her prodigious and inspiring career in the United States: her journey, from a working-class upbringing in a single-parent family, to practice as a lawyer on child rights and in the Department of Justice, to service, in the District of Columbia Circuit, as the 1st woman Chief Judge of a U.S. Court of Appeals, and quite recently, as an Obama appointee to the Privacy & Civil Liberties Oversight Board.

We international lawyers also will recall Wald’s fierce service as a judge on the International Criminal Tribunal for the former Yugoslavia. There, she took part in noted judgments, among them a genocide conviction in Prosecutor v. Krstić and a “turning point” appellate ruling in Prosecutor v. Kupreškić.

Even after retiring from the ICTY, Judge Wald championed international criminal justice, placing particular emphasis on women. It was my privilege to welcome her interventions on these subjects, and at times to aid publication of her contributions (Pat’s computer savvy was, it must be said, rudimentary).

Just last year, the Georgia Journal of International & Comparative Law was honored to publish Pat’s essay “Strategies to Promote Women’s Participation in Shaping International Law and Policy in an Era of Anti-Globalism,” based on remarks she’d given here at my home institution, the University of Georgia School of Law Dean Rusk International Law Center. They were a highlight of our 10th birthday conference for IntLawGrrls blog, not least because Pat referred to us assembled scholars and practitioners as “you ‘young people’ in the room.” She traced the beginnings of international criminal justice, then said:

“I do not suggest that the process of integrating women as upfront participants in international courts, let alone the inclusion of the crimes most commonly committed against women as worthy subjects of international criminal law jurisprudence, has been completed. More accurately, these developments had just gotten off to a reasonable start at the moment that global politics seem to have begun to shift toward a so-called anti-globalist populism. My central point, therefore, is that we must strategize in the face of a desired, yet elusive future.”

Her strategies: ally to strengthen international law, international legal education, and global-mindedness in many sectors, including the arts; “protec[t] the venues in which women have had significant impact,” including the International Criminal Court and related forums; and work globally to raise women’s awareness “about educational opportunities, rights to land ownership and profits, how to start a small business, how to farm efficiently, how to participate in voting or run for office, and about legal rights to divorce or separation.”

Issues like these were prominent in a special issue of the International Criminal Law Review, “Women and International Criminal Law,” dedicated to the Honorable Patricia M. Wald, for which I served as a co-editor along with Jaya Ramji-Nogales, Beth Van Schaack, and Kathleen A. Doty. Wald herself wrote on “Women on International Courts: Some Lessons Learned” for vol. 11 no. 3 (2011). And as shown in that issue’s table of contents, additional contributors included many whom Judge Wald’s life and work had touched: Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow, along with Kelly Askin, Karima Bennoune, Doris Buss, Naomi Cahn, Margaret deGuzman, Katharine Gelber, Laurie Green, Nienke Grossman, Rachel Harris, Dina Francesca Haynes, Jennifer Leaning, David Luban, Rama Mani, Jenny Martinez, Fionnuala Ní Aoláin, Katie O’Byrne, Lucy Reed, Leila Nadya Sadat, and David Tolbert. The issue stemmed from a 2010 roundtable (pictured below) that then-Executive Director Elizabeth “Betsy” Andersen hosted at the American Society of International Law, an organization Judge Wald long supported.

Pat’s support for IntLawGrrls predated this event. In 2009, she had contributed a trilogy of essays to the blog: 1st, “What do women want from international criminal justice? To help shape the law”; 2d, “What do women want? Tribunals’ due attention to the needs of women & children”; and 3d, “What do women want? International law that matters in their day-to-day lives”.

In keeping with the blog’s practice at that time, Pat dedicated her IntLawGrrls posts to a transnational foremother, “a wonderful German/Jewish woman, Gisela Konopka,” a University of Minnesota social work professor with whom Pat had collaborated in a lawsuit against the Texas Youth Authority. In her lifespan of 93 years, Konopka, Wald wrote, “fought in prewar Germany for children’s rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.” Explaining how Konopka had influenced her, Judge Wald penned a sentence that today does service as her own epitaph:

“She inspired me as to what an older woman can do right up to the point of departure to help those behind.”

(Cross-posted from Diane Marie Amann)

Women, accustomed to the International Court of Justice

/ Diane Marie Amann / Leave a comment

Standing beneath the portrait of Dame Rosalyn Higgins, the 1st woman judge and 1st woman president of the International Court of Justice, are, from left: University of Georgia School of Law students Lyddy O’Brien and Evans Horsley; IntLawGrrl Kathleen A. Doty, now serving as Interim Director of Georgia Law’s Dean Rusk International Law Center; student Jennifer Cotton; and IntLawGrrl and Georgia Law Associate Dean Diane Marie Amann.

HAGUE –  A briefing at the International Court of Justice was part of today’s Hague leg of the Global Governance Summer School that we at the University of Georgia School of Law Dean Rusk International Law Center are co-presenting with KU Leuven Centre for Global Governance Studies. Providing insights into the work of the court was Dr. Xavier-Baptiste Ruedin (right), Legal Adviser for Judge Joan E. Donoghue. As IntLawGrrls well know, she’s one of three women who are now permanent members of the court, and one of only four in the court’s 72 years.

Recalling the photo at left, on which I posted a few years back, couldn’t resist making the “Women of the Global Governance Summer School” photo above.

Thus does international custom begin to crystallize.

 

 

‘Nuff said: Sebutinde on women judges, international courts

/ Diane Marie Amann / Leave a comment

sebutinde_hires“I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a women to be on this court. They have no idea what a deal it is. It is a big deal.”

So commented Judge Julia Sebutinde, reflecting on her tenure at the International Court of Justice. She was quoted in “Africa’s most senior female judge: ‘Would these men even listen to me?’, a November profile published in South Africa’s Daily Maverick. Sebutinde has served on the court since 2012, following a lengthy U.N. election process; she is the 4th woman, and the 1st African woman, to be elected in the court’s 70-year history.

Sebutinde began her distinguished career as a lawyer and judge in her native Uganda. She also has served as a judge both on the Special Court for Sierra Leone and on the International Criminal Court. In the Daily Maverick article, she not only speaks of her work at the ICJ, but also offers criticism of current opposition to the ICC. (credit for ICJ photo)

Race to the top? African women judges and international courts

/ J. Jarpa Dawuni, Ph.D. / Leave a comment

What do we know about African women as subjects of international law? More so, what do we know about African women judges who sit on international courts at the regional and international levels? These questions are central to moving forward the agenda on increasing the number of women on international courts, especially considering that most judges (though not all) on international courts are also judges at the domestic level. Countries across Africa have made substantial gains in the numbers and leadership roles of women judges, as documented in Gender and the Judiciary in Africa: From obscurity to parity? Across, the continent, women occupy important leadership positions such as that of Chief Justices and Heads of Constitutional Courts (for more see Her Ladyship Chief Justice).

Developments at the domestic levels have been replicated at the international level with a growing number of African women judges serving on international courts. The diversity of the continent of Africa, its peoples, culture and rich history cannot be simply qualified by one word “African”, however, for purposes of creating a uniform understanding of who I am referring to, I use the word “African” to denote women who hail from a country in Sub-Saharan Africa. In “African women judges on international courts: symbolic or substantive gains?”, I have argued that the presence of African women judges challenges notions of tokenism;  indeed they are highly qualified to be in those positions. The professional achievements of these women indicate that they have stellar academic backgrounds, outstanding professional qualifications, trailblazing achievements, and some of them have earned the status as “first” in their various professional endeavors. Notwithstanding these observations, women’s entry into international courts appears to be a road less travelled for various reasons as documented by IntLawGrrl Nienke Grossman. A critical rule of thumb remains that appointments to international courts involve a great deal of domestic politics and women have to find strategies to combine their professional experiences with other political considerations in creative ways. As fellow IntLawGrrl Fionnuala Ní Aoláin notes,

By accessing elite judicial institutions, women exert agency by taking    ‘strategic, creative and intuitive action’, to generate individual opportunity as well as to enable dynamic entry to gendered institutional environments that have been, as a practical matter, closed to the female sex since their inception (231).

 The persistent trend of gender imbalance in international courts is more disturbing when viewed in the light of the fact that international courts are perceived as arenas for fighting injustice and inequality. Increasingly, research has demonstrated that courts, both domestic and international, continue to be informed by masculine expectations, often operating within institutional selection cultures that view the qualifications of women as secondary to those of men, as argued by Terris, Romano and Swigart (another IntLawGrrl).  In essence, Mackenzie et.al remind us that the playing field is not equal for men and women.

That being said, we are seeing some preliminary advancements in the number of women sitting on the benches of international courts. Women judges on the International Criminal Court (ICC) represent the different geographic regions of the world, yet, we see that some countries have had success in nominating women to the court and not so for others.  For instance, women represent about fifty percent of all judicial positions in France’s judiciary. Yet, France has yet to successfully nominate a woman judge to sit on the ICC or the International Criminal Court (ICJ).  Similarly, in Great Britain, women are said to account for about fifty percent of the judiciary, though a dismal number occupy positions on the higher courts. This poor record of women on higher courts may provide some preliminary explanation for its failure to nominate a woman to sit on the ICC, though the first woman to sit on the ICJ in 1995, Judge Rosalyn Higgins, was from Great Britain.  In the case of Uganda, we see success in producing two women on international courts, one on the ICJ -Judge Julia Sebutinde and the other on the African Court on Human and Peoples’ Rights (ACtHPR).- Judge Solomy Balungi Bossa. Continue reading →

The Judge is a Woman

/ Nienke Grossman / 2 Comments

The Universite libre de Bruxelles is hosting a conference on November 7 and 8, 2013 on gender and the judiciary: “The Judge is a Woman: Reality, Impact and Justification for Gender Diversity on the Bench. ” The link to the conference program is here.  Topics include “Taking Stock of Gender in the Judiciary – Where are the Women?”, “Gender Equality, Gender Diversity – A Condition of Legitimacy for the Judiciary?”, and “The Impact of Gender on the Bench: Do Women Judges Make a Difference?”  Participants include Anne Boigeol (Institut des sciences sociales et du politique/Ecole normale superieure de Cachan), Kate Malleson (Queen Mary, University of London), Arvind Agrawal (Central University of Himachal Pradesh), Judith Resnick (Yale Law School), Nienke Grossman (University of Baltimore), Anne Lagerwall (ULB), Ulrike Schultz (Fern Universitat in Hagen), Sally Kenney (Tulane University), Francoise Tulkens (former Vice President of the European Court of Human Rights), Laura Hilly (University of Oxford) and many others.  Baroness Hale of Richmond (Justice of the Supreme Court of the United Kingdom) and Susanne Baer (Justice of the Federal Constitutional Court of Germany) will provide closing remarks.  It promises to be an interesting and engaging event!