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The Promises of Gender Justice and the Potential of Gender-Sensitive Judging at the ICC

07 Mar 2024
By Suzanne Varrall
Permanent Premises of the International Criminal Court. Source: UN Photo /

The role that judges have played, and can play, in enhancing gender justice at the the International Criminal Court  (ICC) is underexamined. By applying a feminist judgment method to the ICC we can shed light on the possibilities for more gender-inclusive international justice.

The gender framework of the Rome Statute

Created in 1998 by the Rome Statute, the ICC is responsible for prosecuting those individuals most responsible for war crimes, crimes against humanity, aggression, and genocide. The decisions of the ICC’s judges, who are elected by state parties to the Rome Statute, have far-reaching consequences. Not only are these decisions influential within the ICC, they also function as persuasive precedents in other international, regional, and national criminal courts.

During the Court’s creation, the international feminist legal community successfully advocated for strong gender justice provisions in the Rome Statute. These provisions were supported by numerous states, as well as the Women’s Caucus for Gender Justice, the key feminist organisation engaged in the negotiations, who were successful in locking in many gender justice rules. For example, the provisions of the Rome Statute recognise a wider range of sexual and gender-based crimes than any previous instrument of international law; include special measures to protect the dignity and wellbeing of victims of sexual and gender-based violence; require that the law be interpreted and applied without discrimination on gender grounds; and incentivise the election of female judges and judges (of any sex or gender) with legal expertise in violence against women.

The Rome Statute is also the first to recognise the crime against humanity of persecution on gender grounds – a crime which the Court has now applied in several situations including Mali and Afghanistan, where women and girls have been stripped of their rights and subjected to forced marriage and other sexual crimes; the Central African Republic and Darfur, in respect of mass killings of civilian men and boys by attacking forces; and Nigeria, where attacks on girls’ schools, the use of female suicide bombers, and sex-selective attacks on men and boys have been described by the ICC Prosecutor’s Office as gender-based persecution. As such, a framework for realising gender justice is arguably embedded within the Rome Statute.

The ICC record on gender justice

Since July 2002, ICC judges have issued ten convictions and four acquittals. Concerningly, while sexual and gender-based crimes are endemic in periods of conflict, and despite the promising gender justice mandate of the Rome Statute, the ICC has secured just two convictions for such crimes. Both of these eventuated towards the end of the second decade of the Court’s operation; in the cases of Dominic Ongwen in 2021, and Bosco Ntaganda in 2019. This low level of accountability for such crimes creates a series of injustices: it leaves intact perpetrator impunity; it leaves victims without recognition or reparation; and it fundamentally undermines the legitimacy of the ICC, given the commitment of its architects to advancing gender justice.

Yet the ICC’s weak contribution to gender justice runs much deeper than just failed convictions for sexual and gender-based crimes – the ICC’s failure to integrate a gender perspective has touched every stage of proceedings. As numerous feminist scholars and lawyers have noted, it is “not only rape cases” that call for a gender analysis in international criminal law, which needs to include but also go beyond the issue of sexual crimes against female victims. This is not to suggest that there is no more to say on that issue. To the contrary, there is great scope for the ICC to adjudicate crimes of sexual violence more sensitively and more fairly. However, nor should this endeavour obscure the possibilities for gender analysis on issues that otherwise remain on the fringes of feminist scholarship in international law.

The role of judges and feminist judging

Existing gender-oriented analyses of the ICC have tended to focus on how investigation and prosecution strategies have contributed to the Court’s initial failure to secure convictions for sexual and gender-based crimes. The ICC Prosecutor’s Office has appointed gender advisors and published a comprehensive gender policy aimed at improving its track record across the board. However, this focus has meant that there is comparatively little recognition or research into the role that judges have played in adjudicating sexual and gender-based crimes, and no collective action by the ICC’s judiciary to draw lessons from the extensive research on gender-sensitive judging in domestic courts.

Although the term “gender-sensitive judging” is not used in the Rome Statute, this treaty provides a firmer foothold for such an approach than the statute of any other international court. Through its provisions for the election of judges, the Rome Statute addresses both gender parity and gender expertise on the bench, requiring states parties, in the selection of judges, to take into account the need for a “fair representation of female and male judges” and “the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.” Despite these provisions, however, the Court has a mixed record, both in terms of gender parity and in the appointment of judges with specific gender expertise.

From 2010 to 2014, women constituted a majority of justices on the ICC bench, reaching a peak of 61 percent in 2011. However, in 2015 female representation on the bench slipped to an all-time low of 33 percent. In December 2023, at the 22nd Assembly of State Parties, six new judges were elected to the ICC (two of whom were women), taking women’s representation currently to 50 percent. Perhaps more significant for realising gender justice is the number of judges with specific gender expertise. In 2023, five out of the eighteen sitting justices at that time self-identified as possessing gender expertise. Of course, gender expertise is not the sole purview of women, and sex does not connote knowledge or authority, and two of the five judges self-identifying as having expertise were male. The point is not to over-emphasise the significance of these numbers in any empirical sense, however, the fact that the Court’s provisions on gender representation and expertise have not been fully realised opens the door for asking: what if they had been?

One strategy that feminist scholars and lawyers have adopted for illuminating the part played by the judiciary in perpetuating poor gender justice outcomes is the application of the feminist judgment methodology. This approach has been used in projects from around the world to “re-imagine” (rewrite) judgments from all manner of courts with a gender-sensitive or feminist lens.

The most recent addition to this scholarship is a project applying the feminist judgment method to the jurisprudence of the ICC. In a forthcoming edited volume nearly fifty authors of all genders from almost twenty different countries explore the connections between gender, race, nationality, ethnicity, faith, and sexual orientation in relation to the law and practice of the ICC. The book aims to reveal how the ICC’s judgments might have been different if a commitment to gender equality, and an awareness of gendered power relations, were at forefront of the judges’ minds.

There is clearly much work to be done to deliver gender-inclusive international justice as far as the ICC is concerned, and a significant role for the judiciary to play in realising this goal. However, the transformative power of judges along with the gender justice mechanisms that already exist within the framework of the Rome Statute make the ICC fertile ground for applying the feminist judgment method and demonstrating the possibilities for creating a new future for international criminal law in general, and the ICC in particular.

Suzanne Varrall is completing a PhD at UNSW in international law. She is also an Associate at the Australian Human Rights Institute. Her research areas include international humanitarian law, international criminal law, gender justice, arms control, and business and human rights. Suzanne is a lawyer and former policy adviser for the Commonwealth Government. She is a co-editor and contributor to the forthcoming McLoughlin et al ‘Feminist Judgments: Reimagining the International Criminal Court’ (Cambridge University Press).

This article is published under a Creative Commons Licence and may be republished with attribution.