Women Judges in International Courts: the Way to Parity[1]
Authored by:
Omnia Taher Gadalla
Lecturer at Al-Azhar University, Faculty of Law and Shari’a (PhD Candidate)
Founder of Her Honor Setting The Bar Initiative
Cambridge LLM 2022
Brenda Hale, Baroness Hale of Richmond[2] once said “As women make up half of the community, they should be half of the judges”[3]. Justice Ginsburg’s answer when she was asked "When will there be enough women on the Supreme Court?" she replied “when they are nine (9)”. She commented that her response shocked the people by stating: “but there'd been (9) men, and nobody ever raised a question about that”! However, this is a hope that is yet to materialize in national courts, let alone international courts. After a long struggle, women started to be judges in national courts in 1870[4] and international courts in 1995, however, their percentage remains more symbolic than reflective of equality. Nonetheless, the point is not numerical equality, it is about empowering women and giving them an equal opportunity to their male counterparts to apply and be considered for the same roles.
Calling for the appointment and the inclusion of women in judiciary is not just in favor of women and society, but also the judiciary itself, as it is established by dozens of studies that “organizations that prioritize inclusion attract better talent and perform better”[5].
· A glance at women judges’ representations in regional and international courts
Women judges have different representation percentages in regional and international courts, and it is not before the mid-nineties of the last century that we started seeing women presiding regional and international courts. While 27% of judges in national courts are women[6] -apart from supreme courts (4%)[7]-, the percentage highly varies in the different regional and international courts as follows: (i) the African Court of Human and People’s Rights (ACHPR): 45% (5 out of 11)[8], (ii) the International Court of Justice (ICJ): 25% (4 out of 16)[9], (iii) the International Criminal Court (ICC): 44% (8 out of 18)[10], (iv) the International Tribunal of the Law of the Sea (ITLOS): 23% (5 out of 21)[11].
Women have also, occasionally, and quite rarely, presided the most prominent International Judicial courts as follows:
1- The International Criminal Tribunal for Yugoslavia (ICTY) was presided by Justice Gabrielle Kirk McDonald (American) who was the first woman president (1997-1999) and the only woman to occupy the position since its inception in 1994.
2- ICJ was presided, for the first time, by a woman Justice Rosalyin Higgens (British) from 2006 till 2009, she was the first woman judge there in 1995. Recently, for the second time, the ICJ is presided by Her Honor President Joan E. Donoghue (American). She was a member of the Court since 9 September 2010, re-elected as from 6 February 2015, and President since 8 February 2021.
3- ICC was presided by Silvia Ferdenand (Argentinian) who was elected to be the only woman judge to preside the ICC (2015-2018).
As to the African continent, it has women of firsts list:
1- Justice Navi Pillay (South African) who became the first woman selected to sit on the International Criminal Tribunal for Rwanda (ICTR) in 1995 and presided it (1999-2003).
2- Justice Sophia A. B. Akuffo (Ghanaian) was the first female President of ACHPR in 2012-2014[12]. Lady Justice Imani Daud Aboud (Tanzanian) is, currently, a judge at the ACHPR since July 2018 and is presiding the court since February 2021[13].
3- Justice Julia Sebutinde (Ugandan) is the first African woman to sit as a judge on the ICJ in 2012 since its inception in 1945[14].
4- Fatou Bensouda (Gambian) who served as Chief Prosecutor in ICC is the only woman -African- in such a position in the court's history (2011-2021)[15].
Those names of women judge in international courts shine not only in the national arena but also in the international realm. Reading their biographies inspires and guides generations of qualified women who dream big, reflects their professionalism. Reaching these positions crowns their contributions to the legal jurisprudence and endeavors to achieve international justice and refutes all stereotypes and fallacies about women’s ability to be judges at both national and international levels.
Despite the promising raising numbers, it is apparent that there is a severe lag in the inclusion and appointment of women in international judiciary. As noted earlier, the first woman was appointed as a judge in the 1990s. Further, for example in the ICJ, the most prominent international court, which should lead by example being a UN organ, only five women judges sat on the bar throughout its long history (compared to 106 male judges at the same period)[16], the first of which was appointed in 1995, 4 decades after its establishment.
The different judge’s nomination policies for the international courts reveal a lot. As to the ICJ, the statute is silent about the gender representation in its nomination process[17], and so is the UN Charter chapter about the ICJ[18] and associated treaties[19]. However, the UN Charter mentioned no restrictions on women’s eligibility but did not guarantee women’s representation. It states, “The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.”[20]
On contrary, the policies of the ICC and the ACHPR are clearly more gender friendly and more explicit and affirmative on women judges inclusion. As to the Rome Statute -by which ICC was established-, Article (36) “Qualifications, nomination and election of judges” states “…8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: …(iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children…”.
As to the ACHPR Protocol – by which ACHPR was established, Article (14) “Elections” stipulates that "…3- In the election of the judges, the assembly shall ensure that there is adequate gender representation". Article (12) “Nominations” reads as “…2. Due consideration shall be given to adequate gender representation in nomination process”. This is further affirmed by Article (20) “Vacancies” which stipulates “1. In case of death or resignation of a judge of the Court,… 3. The same procedure and considerations as set out in Articles 12, 13 and 14 shall be followed for the filling of vacancies”.[21]
The picture is brighter in the ICC and the ACHPR where women judges were represented since their inception. This might be due to the relatively recent establishment of the ICC and ACPHR –in 2003 and 2004 respectively at times of strong movements of gender equality compared to the time when early establishment of the ICJ took place and when the communities were closer to patriarchy and women representation was almost nihilistic and considered a luxury.
Looking at the bigger picture, it seems that, a long time has passed with no women judges at international courts. The responsibility for such a situation is shared between the regional and international courts on the one hand, and the states in the other hand. In general, on the international, judges are nominated by their states to different positions in international courts and organizations. On the national, there are two potential scenarios for having women judges: (1) Down-top approach, which requires appointing women judges normally at national courts (either judges, law professors, legal experts, diplomats …etc.) to get the experience and promoted to supreme courts and be qualified for international benches, 2) A top-down approach which requires appointing women at the high/supreme/international courts by a political decision to normalize the existence of women judges in lower courts, then nominating “Her” for the national courts[22]. Practically, it seems like a flowery dream to have an international woman judge while women were and still, in some countries, deprived of applying to become judges in national courts equally as their male counterparts.
For example, it is noted that the nominations of states clearly failed to make a balanced nomination reflecting both male and female calibers, with some states failing completely to nominate any female. On the other hand, the selection and/or election of the judges also shows a failure in supporting female calibers to succeed.
In all cases, reaching parity and being merit-based appointed in the judiciary, from my own point of view, should be the norm. Quota/positive discrimination/positive procedure may be beneficial, at least temporarily, to help kick-start the process but it is not more important than having qualified judges based on fair selection for the best nominees. Otherwise, we cannot consider the aspired parity to be satisfactory or fulfilling to women’s aspirations. Plus, it would be a vicious circle to make male applicants for judiciary suffer what women struggle through now.
The role of international judicial bodies and organizations in improving women representation on the bench
International judicial bodies and organization have a very vital and important role in ensuring inclusion of women judges in national and international courts. Such judicial bodies and organizations have a positive obligation -a moral one at least- to lead by example by applying standards of equality[23], inclusion, and respect of human rights. In all cases, reaching parity and appointing women based on merits and qualifications in the judiciary is the aim and we can get closer to that aim deploying the below suggestions/ actions.
A clear and axiomatic action is to make sure that the drafting of the rules governing international judicial bodies guarantees a fair opportunity to women from the nomination stage throughout the selection process, appointment, and promotion. Moreover, the articles of the international courts’ composition and the work mechanism of international and regional organizations need to clarify their effective roles from one side and their responsibility from another side, towards observing the application of its articles and using the stipulated powers, which will accordingly lead to having women judges in both national and international courts.
Further, international, and regional organizations like the UN, the League of Arab States (“LAS”), ... etc, should have effective mechanisms through (i) adopting principles and rules that protect and guarantee equality, (ii) monitoring the application by its organs and its member states of such principles and rules; (iii) report on such application and start a conversation on how to improve it. Adopting such strategy is very beneficial and has proven effective as such reports, despite being not binding, cause international embarrassment and pressure on non-abiding states.
As an application, the UN observes the states’ implementation of the sustainable development goals (“SDGs”), including the gender equality goal. Many developing states started applying SDGs or other development agendas -including gender equality- only when the funding states or development banks/ funders insisted to make the loan to the developing state pending upon the implementation of such development agenda, thus, forcing such a state to provide a better life for its citizens.
More specifically, the UN CEDAW Committee monitors the gender equality status in each member country and imparts a clear image of women’s status in that country to the national and international public opinion.[24] This mechanism proved very useful. For example, in Egypt, when the UN CEDAW played a very important role by issuing its driving force report in 2001,[25] highlighting the total absence of Egyptian women judges, causing an embarrassment to the political leadership on the international level, and thus, leading to the appointment of the first and only –at that time- Egyptian woman judge[26] in 2003 in the Supreme Constitutional Court.
Other key actions are capacity building programs, exchange and training programs that are organized by international organizations and designed for women judges and legal practitioners to empower and prepare them for higher positions are of great added value and eye-opening experiences[27].
Furthermore, including gender studies, with successful experiences of other countries that adopted revolutionary women empowerment policies along with its impact on the economy and every aspect in the country, in the compulsory judicial trainings and hiring and promotion process is one of the key actions too.
· Conclusion:
There is a considerable enhancement in women’s appointment and inclusion on different levels and positions nationally and internationally. However, women judges were and still are disadvantaged in both national and international judiciary and there is still a long way to go till we see women judges in international courts from each and every country.
The absence of clear women judges’ inclusion, empowerment policies, strategies and political will severely undermine the development, not only of women, but of entire nations and organizations. Having the above strategies and key actions are a good starting point.
I love to end with my favorite quote of Justice O’Connor[28] in her valuable book “Majesty of the Law” which totally expresses what I strongly believe in “…My intuition and my experience persuade me that having women on the bench, and in other positions of prominence, is extremely important. The self-perception of women is informed by such examples, and by the belief of women that they too, can achieve professional success at the highest levels... Breaking free of these stereotypes required some good examples. Recent sociological literature strongly suggests that positive role models play a significant role in professional and other achievements…There is another reason that women acquired power slowly, and its closely related to the broad-based cultural explanation. A paucity of women in position of power creates a vicious cycle. When women are grossly underrepresented in government and in the law and in the corporate boardroom, other women are less likely to believe that they belong in positions of power. For years our society’s sexism fed on itself, and the powerlessness of women became a self-fulfilling prophecy …”[29]
Authored and translated by
Omnia Taher Gadalla
Lecturer at Al-Azhar University, Faculty of Law and Shari’a (PhD Candidate)
Founder of Her Honor Setting The Bar Initiative
Cambridge LLM 2022
[1] September 21 - International Day of Peace Towards Gender Parity in International Courts and Monitoring Bodies.The International Day of Peace was established in 1981 by the United Nations General Assembly. Two decades later, in 2001, the General Assembly unanimously voted to designate the Day as a period of non-violence and cease-fire https://www.un.org/en/observances/international-day-peace/2022
[2] First woman judge in the UK Supreme Court in 2009 and presided it in 2017.
[3] Egyptian women constitutes 49% of the population.
[4] Ada H. Kepley became the first woman in the United States to graduate from law school. A year later, in 1870, Esther Morris was appointed as a justice of the peace in Wyoming Territory – the first woman in the United States appointed to a judicial position.
https://blogs.loc.gov/law/2015/03/women-in-history-lawyers-and-judges/
[5] 4 Ways Managers Can Be More Inclusive (https://hbr.org/2017/07/4-ways-managers-can-be-more-inclusive)
[6] UN Women “progress of the world’s women – in pursuit of justice 2011/2012” report. https://www.un.org/ruleoflaw/files/Progress%20of%20the%20Worlds%20Women%202011-2012.pdf
Photo (1)
[7] 4% of Supreme Court Judges of All Time are Women
https://www.scobserver.in/journal/4-of-supreme-court-judges-of-all-time-are-women/
[8] African Court of People’s and Human Rights, accessed Nov 23, 2017, https://www.african-court.org/wpafc/current-judges/
[9]https://icj-cij.org/current-members
[10] https://www.icc-cpi.int/about/judicial-divisions
Previously, the percentage was 33% (6 women jduges out of 18)
https://www.icc-cpi.int/about/Pages/in-the-courtroom.aspx#
[11] https://www.itlos.org/en/main/the-tribunal/members/
[12] http://en.african-court.org/index.php/30-profiles-of-former-judges/109-profiles-of-former-judges
[13] https://www.african-court.org/wpafc/lady-justice-imani-daud-aboud-tanzania/
[14] https://www.icj-cij.org/en/current-members
[15]https://www.theguardian.com/law/2012/jun/14/fatou-bensouda-international-criminal-court
[16] https://news.un.org/en/story/2023/03/1134487#:~:text=The%20first%20woman%20to%20be,Donoghue.
[17] https://www.icj-cij.org/en/statute
[18] https://www.un.org/en/sections/un-charter/chapter-xiv/index.html
[19] Convention for the Pacific Settlement of International Disputes 1899 and Convention for the Pacific Settlement of International Disputes 1907. https://pca-cpa.org/en/documents/pca-conventions-and-rules/
[20] https://www.un.org/en/about-us/un-charter/chapter-3
[22] An attempt of this top-down approach occurred nationally in Egypt 2003, after the UN CEDAW Report in 2001 highlighting the total absence of Egyptian women judges, causing an embarrassment to the political leadership on the international level and subsequently leading to the appointment of the first and only –at that time– Egyptian woman judge in 2003 in the Supreme Constitutional Court and then the appointment of 66 women judges in ordinary courts.
The first Egyptian woman judge was appointed directly at the Supreme Constitutional Court by a presidential decree. She was a senior lawyer and never served as a judge. Her appointment method was quite unusual since the judges of any court in Egypt are selected from the judges of the lower court. Choosing a lawyer to serve as a judge in the Supreme Constitutional Court is rare –if at all-, even for men. “Her” appointment at that time shed light on the total absence of women on the national courts, especially after the continuation of banning female law graduates from applying to the national courts even after “Her Honor”s appointment at the highest court in the country!
Similarly, the unusual appointment of 66 women judges in ordinary courts was through an exceptional procedure[22] as they did not go through the normal selection process but were selected from the females serving in the administrative prosecution and the State Lawsuits Authority “ESLA”.
Unfortunately, this attempt has been disrupted by the collective rejection of the different judicial bodies in Egypt, who unanimously refused to allow females to even apply to those judicial authorities, as their male counterparts. Another element of this disruption is the 2011 revolution which –due to human rights violation and political corruption- overthrown Mubarak and the first Lady, Susan Mubarak, who has been rumored to be the engineer of this attempt.
Another attempt took place in 2019 when president El-Sisi appointed the first woman dean ever of a law faculty, Prof. Fatma El-Razaz, as a judge at the Supreme Constitutional Court,
[23] Centre for International Courts and Tribunals, University College London, “Selecting International Judges: Principle, Process and Politics” DISCUSSION PAPER, P 37. https://www.ucl.ac.uk/international-courts/sites/international-courts/files/selecting_int_judges.pdf
[24] All conventions and declarations of human rights guarantee the right of women of sitting in the bar. The merit of the international conventions is it makes the country liable before the international community for violating any of the terms enshrined therein. Among those conventions are the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 , African Charter on Human and People’s Rights 1981 , Universal Islamic Declaration of Human Rights 1981, UN Basic Principles on the Independence of the Judiciary 1985, Cairo Declaration on Human Rights in Islam 1990, Arab Charter on Human Rights 2004 by the Arab League and Cairo Declaration of Arab Woman 2014 by the Arab League-Arab Woman Organization.
One of the most important conventions for combating gender discrimination is CEDAW which stipulates in its 11th Article “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion,; ... 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary”.
Further, the African Charter stipulates in its 1st Article “The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them”. Article 2 reads as “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status”. Article 3 asserts that “l. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law”. Article 15 confirms that “Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.” Article 19 reads as “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights...”.
Moreover, the Universal Islamic Declaration of Human Rights 1981 stipulates in its III Article titled “Right to Equality and Prohibition Against Impermissible Discrimination stipulates “a) All persons are equal before the Law and are entitled to equal opportunities and protection of the Law….c) No person shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by reason of religious belief, colour, race, origin, sex or language”. Article IV “Right to Justice” says that “a) Every person has the right to be treated in accordance with the Law, and only in accordance with the Law…. d) No person shall be discriminated against while seeking to defend private and public rights…”.
Most importantly, the UN Basic Principles on the Independence of the Judiciary 1985 Article 10 titled “Qualifications, selection and training” confirms and highlight that “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory”.
In addition, the Cairo Declaration on Human Rights in Islam 1990 stipulates in its 13th Article “Work is a right guaranteed by the State and the Society for each person with capability to work. Everyone shall be free to choose the work that suits him best and which serves his interests as well as those of the society….. He shall be entitled - without any discrimination between males and females - to fair wages for his work without delay”.
Moreover, the Arab Charter on Human Rights 2004 by the Arab League stipulates in Article 3 “1. Each State Party to the present Charter undertakes to ensure to all individuals within its territory and subject to its jurisdiction the right to enjoy all the rights and freedoms recognized herein, without any distinction on grounds of race, color, sex, language, religion, opinion, thought, national or social origin, property, birth or physical or mental disability. 2. The States Party to the present Charter shall undertake necessary measures to guarantee effective equality in the enjoyment of all rights and liberties established in the present Charter, so as to protect against all forms of discrimination based on any reason mentioned in the previous paragraph. 3. Men and women are equal in human dignity, in rights and in duties, within the framework of the positive discrimination established in favor of women by Islamic Shari’a and other divine laws, legislation and international instruments. Consequently, each State Party to the present Charter shall undertake all necessary measures to guarantee the effective equality between men and women”. Article 24 reads as “….7. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a society that respects freedom and human rights, in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”. Article 34 affirms that “1. Every citizen shall have the right to work. The State undertakes to ensure employment for as many employment seekers as possible, while ensuring maximum state production, and the freedom to work and equality of opportunity without discrimination of any kind as to race, color, sex, language, religion, political opinion, affiliation to a trade union, national or social origin, handicap or other status.… 4. No distinction between men and women shall be made in the exercise of the right to benefit effectively from training, employment, protection of work, and equal pay for work of equal value and quality”. Article 43 asserts that “Nothing in the present Charter shall be interpreted as impairing the rights and freedoms protected by the State Parties’ own laws, or as set out in international or regional instruments of human rights that the State Parties have signed or ratified, including women’s rights, children’s rights and minorities’ rights.”. Article 44 stipulates “Where not already provided for by existing legislative or other measures, the State Parties undertake to adopt, in accordance with their constitutional processes and with the provisions of the present Charter, the necessary laws or other measures in order to give effect to the rights recognized by the present Charter”.
[26] Clarified in footnote 22 above.
[27] https://www.africanwomeninlaw.com/post/women-judges-from-the-mena-region-visit-the-netherlands
[28] First woman judge the in USA Federal Supreme Court in 1981.
[29] Ibid