Symposium on Gender Representation: The International Criminal Court’s “Boys Club” Problem

[Angela Mudukuti is a member of Opinio Juris and a human rights lawyer who specialises in international criminal law. She has worked with a variety of international institutions and organsisations including the International Criminal Court and Human Rights Watch.]

Yes, the International Criminal Court (ICC) has a “Boys Club” problem. Whilst the ICC is but one part of the international criminal justice landscape, the severe and unsustainable gender imbalance continues to affect the field as a whole. It affects the work environment, the jurisprudence and the profession as one gender continues to have privileged access to work opportunities, particularly senior roles. Adequately addressing this imbalance is a matter of urgency. The recent Report of the Human Rights Council Advisory Committee on “Current levels of representation of women in human rights organs and mechanisms” offers a good opportunity to reflect on gender representation at the ICC.

The Assembly of States Parties

The first problematic area is the ICC’s legislative and oversight body, the Assembly of States Parties (ASP) where important decisions are made and individuals are appointed to undertake highly influential and significant tasks. This body continues to produce entities with no gender balance. To start, the ASP is led by an ASP Presidency and since the Court’s inception there have been 7 presidents and only 2 of them have been women.

The Independent Experts (Experts) established by the ASP and mandated to conduct a much needed review of the Court, consisted of only 3 women and 6 men. The Committee on the Election of the Prosecutor (CEP), appointed by the ASP member states through regional groups in 2019, had 4 men and 1 woman. The Panel of Experts (PoE) appointed to assist the CEP had 3 men and only 2 women. The current Advisory Committee on the Nomination of Judges (ACN) mandated to facilitate the appointment of the highest-qualified judges has 9 members and only 3 of them are women.

It is clear the composition of the ASP itself is part of the problem and that can be traced back to national level processes. The diplomats who constitute the ASP are proposed to the Credential Committee by their respective Head of State or their Minister of Foreign Affairs. Efforts to address the national level gender imbalance must continue but it is incumbent upon ASP representatives to proactively make decisions that reflect an appreciation for gender balance when appointing members to committees or groups.

ICC Staff

At the Court itself, according to the 2020 Report of the Bureau on Equitable Geographical Representation and Gender Balance in the Recruitment of Staff of the ICC (Gender and Geographical Representation Report), as of 30 September 2020, the ICC staff was 49.2 percent female and 50.8 percent male (para 11). This may seem acceptable (not perfect) but when one digs deeper the real problem is revealed- most of the women are in junior roles. The percentage of female staff at P-5 or above positions is 23.5% whilst male staff come in at a hefty 76.5%

According to the same report, “although the quality of female candidates was not lower than that of male candidates, the pool of the latter for senior-level posts tended to be lower…” Perhaps not enough women apply for these positions but even if they did, would they be selected for the job? In the event that they are selected for the job, are they likely to accept based on the impression they may have gathered during the recruitment process?

Research conducted by Google, in their attempt to address their own gender imbalance, revealed that, “women who turned down job offers had interviewed only with men.” They then ensured that women met other women during the hiring process and as a consequence, the number of women being hired increased.

Excluding elected officials who have a limited term, many staff members at the ICC have been in secure positions at the Court for several years. According to the Independent Expert Review (IER), 44% of D-1 staff and 23% of P-5s have been at the Court for more than 10 years whilst 33% of D-1s and 41% of P-5s have been at the Court for between 5–10 years (para 248, footnote 145).This means that men, who form the majority of senior staff, stay in their coveted positions and promotion or appointment of women is unlikely, if not impossible, until the position is vacant.

Seeing the general problem of lack of movement at the top and the need to balance institutional memory and experience with fresh thinking, the IER recommended a tenure system be introduced for new recruitments in P-5 and director level positions (para 249). Citing international organisations that operate in this manner, the Experts pointed to the Organisation for the Prohibition of Chemical Weapons which has a maximum 7-year term for all its officers, the Organisation for Security and Cooperation in Europe, and the International Atomic Energy Agency which have a maximum of five years (para 249). The Experts recommend something between the five-year term of the Registrar, and the nine-year terms of the judges and prosecutor (para 249). Whilst that is very helpful it does not help solve the imbalance with current P-5s and director level staff.

In its Overall Response to the IER, the Court’s resistance to the tenure proposal was evident, particularly the OTP which used the example of a Senior Trial lawyer to make its point. According to the OTP, given the length of time cases take, losing a Senior Trial Lawyer would result in “[t]he loss of the skill, experience, case and situation knowledge, and personal commitment to the mission possessed by the senior lawyer” and that, in their view, “would be detrimental to OTP operations”(para 236). Other objections included the strain on limited resources via having to recruit frequently (para 237).

Whilst I am not completely unsympathetic to the Court’s resistance, a tenure policy is essential for staff turnover, to give others the opportunity to hold these positions and ultimately improve the gender balance. If all the male P-5s and directors remain in their positions the gender imbalance will persist.

Elected Court Officials

Prosecutor

As mentioned above, the CEP was appointed to assess and evaluate applicants for the role of prosecutor. State parties made the final choice via the ballot box. Whilst the process itself had its problems, in terms of gender balance the pool of applicants left a lot to be desired. According to the CEP’s June 2020 report, out of 89 applicants, only 26 were women (p.6). Of those 26 women only two made the final short list of nine. The CEP, in accordance with its Terms of Reference had due regard to the “extent possible” to gender balance and other factors such as geographical representation and legal system.

In the same June report, the CEP recommended that, “gender balance and diversity of legal systems be taken further into account in the selection and appointment of the Deputy Prosecutor(s)” and the subsequent election of a male prosecutor made that recommendation even more relevant. The Deputy prosecutors are elected by the states parties from a list provided by the current prosecutor. The Deputy Prosecutors vacancies have been advertised and if all goes according to plan two new deputies will be elected in December 2021. It is important that the deputies be well-qualified, experienced, of high moral character and female.

Judges

Judges at the ICC are nominated by states, assessed by the ACN and then elected by states. The prescribed minimum voting requirements are a helpful attempt to balance gender, amongst other factors, but they have not always been effective.

In December 2020, six new judges were elected and the ICC bench reached gender parity after years of imbalance. Currently there are 9 female judges and 9 male judges. Prior to that, it was the sixth consecutive year that female judges were outnumbered by male judges. In fact, at the beginning of 2020 there were 12 male judges and only 6 female judges.

Registrar

The ICC Presidency establishes a list of candidates who responded to the vacancy announcement and meet the requirements. This list is transmitted to the ASP with a request for recommendations. After the ICC Presidency has recommendations from the ASP, the judges are provided with those recommendations and asked to vote. It would be far too simplistic and unfair to suggest that men only vote for men, but it is worth mentioning that of the 3 registrars in the Court’s history, two were men and one was a woman. In the ICC’s Overall Response  to the IER it mentioned that in recent Registrar elections there have been a “clear majority of male applicants” (para 179).

The Impact of Gender Imbalance

The current gender dynamics at the ICC have a significant impact. Firstly, the gender imbalance perpetuates further gender imbalance. Women do not see other women in these roles and may therefore not apply, and when they do, being interviewed predominantly by men may also result in a certain bias that can affect the outcome.

Secondly, gender imbalance affects office culture, as noted by the IER Report, the ICC office culture can be described as, “adversarial and implicitly discriminatory against women” (para 209). The IER Report also indicates that the men “exert enormous weight and influence not merely over the substantive work of the Court and how it is organised, but over recruitment, placements and other staffing decisions that impact officers at all levels”(para 205).

Thirdly, gender imbalance has also been known to affect the jurisprudence of an international court as it is often women prosecutors and judges who ensure the inclusion of gender crimes. As explained by Thompson, this was evident at the International Criminal Tribunal for Rwanda (ICTR) where the original bench of nine judges only included one woman, Judge Navi Pillay. Judge Pillay’s efforts in the Akayesu case led to a major advancement in the jurisprudence relating to the prosecution of sexual violence.

Going further back in history, Grossman, citing Askin writes that the absence of female judges during the Nuremberg trials meant that crimes against women were “virtually ignored” (p.649). Despite stories of brutal sexual violence perpetrated during World War II, Nuremberg prosecutors “chose not to prosecute or introduce evidence about these crimes”. (p.649)

Fourthly, gender imbalance walks hand in hand with the prevalence of sexual harassment at the ICC. The Experts, “heard a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates” (para 209) and identified the need to improve disciplinary measures as one of the way to address workplace harassment but also rightly pointed out that it is important to have more women in managerial positions. “[E]xperience in other organisations suggests that when the composition of management approaches parity between women and men, the overall culture of the office becomes more collaborative and is less tolerant to bullying behaviour” (para 212), said the Experts.

The Court and its leadership are not blind to the gender imbalance. There have been efforts to address the issue. In its Overall Response to the findings of the IER report, it acknowledged the gender balance challenges and welcomed the IERs recommendations in general terms.

Specifically, they noted that they consider gender balance in recruitment panels to be “crucial” (para 211) and that currently all panels are required to have both men and women. They also stated that the Court “can consider the mainstreaming of initiatives including trainings ahead of recruitments to ensure panel members are aware of unconscious bias” (para 211). The Court is also considering psychometric assessments to avoid bias during the selection processes.

Their response also states that the Court considers the appointment of more women to senior positions to be a priority (para 202).

The Court also appointed a long-awaited Gender Focal Point in March 2021 whose mandate is to “ assist the Court’s Leadership in their efforts to strengthen gender related policies across the Court and to address issues related to employment conditions of women in the institution, including gender balance at all levels of employment.”

Thankfully, there are other initiatives outside of the Court and valiant efforts by civil society to level the playing field including the ATLAS Network, the International Gender Champions Initiative, GQUAL, and the Institute for African Women in Law, for example.

The gender imbalance will continue to affect the Court’s credibility, reputation and effectiveness. It is time to take bold, concrete, and sustainable steps towards gender parity at the ICC.