Missing: Asian Women on the International Bench

[Anuja Jaiswal is a human rights consultant who has worked in various contexts, including Gambia, Ukraine, MENA, Myanmar, and North Korea. She studied at the University of Oxford and Columbia University, and has an LL.M in Transnational Crime and Justice.]

Generally, there is an absence of adequate gender representation on the international bench. This gap has been identified by academics and practitioners alike, with few regional and international courts having balanced benches through time. The newly adopted Beijing + 30 Action Agenda affirms the importance of achieving gender parity in such institutions. Action 4 of the six key actions focuses on ensuring women enjoy equal and full decision-making power across all systems. 

The research suggests that the prolonged lack of equal representation has implications for the actual and perceived legitimacy of a court and the development of international  law. Women judges have contributed significantly on the bench both substantively and procedurally in international criminal law. For example, Judge Navanethem Pillay – then the only woman on the bench at the International Criminal Tribunal for Rwanda – “is credited with taking the initiative to question witnesses about evidence of sexual violence”. Her efforts, alongside advocacy from NGOs, led to amended charges in the Akayesu case and the first conviction of rape as a form of genocide.

Similarly, geographic representation is crucial at the international level. Even though judges serve in their personal capacity, building an international legal system that is truly representative of its international character necessitates the inclusion of practitioners that capture the diversity of views, legal traditions, and cultural and social traditions in the international community. 

This piece builds on research I conducted as part of the Asia Justice Coalition’s Women in International Justice & Accountability (WIJA) project. The WIJA project aims to empower women leaders in Asia and develop their leadership in international law. I examined the gender and regional representation of judges at four international courts and tribunals. I focused on judges because they optically hold the most important role in courts and are the ‘face’ of judicial work. Given their impartial and representative mandate, judges should ideally represent the global character of international justice. Practically, data about the gender and nationality of judges is readily available, making it a good starting point when analyzing representation. 

I looked closely at the International Court of Justice (ICJ, 1945-present), the International Criminal Court (ICC, 2003-present), the UN International Residual Mechanism for Courts and Tribunals (UN IRMCT, 2011-2024), and the Extraordinary Chambers in the Courts of Cambodia (ECCC, 2001-2022). The ICJ and the ICC are the largest permanent international courts and have distinctive approaches to representation. The Presidency at both these courts is currently held by two Asian judges, one of whom is a woman: Iwasawa Yuji (Japan) and Tomoko Akane (Japan). The UN IRMCT shows how the international community approached justice in two specific situations – Rwanda and the former Yugoslavia. The ECCC is an example of a hybrid court. Although other courts, such as the Special Court for Sierra Leone and the Special Tribunal for Lebanon could also serve as examples, the ECCC seemed especially relevant given the focus on Asian women judges.

International Court of Justice

The International Court of Justice is the oldest Court examined. Since 1945, 115 judges have been elected to the ICJ over the course of almost 80 years. 15 of these judges came from Asian countries (15%). Out of the 115 judges elected over time, only 6 were women – a mere 5.2%. Four of them are on the current bench: Vice-President Julie Sebutinde (Uganda), Xue Hanqin (China), Hilary Charlesworth (Australia), and Sarah H. Cleveland (USA). Furthermore, Xue Hanqin is the only Asian woman to ever serve as a judge. Compared to other courts surveyed, the ICJ has had the lowest gender and regional representation through time.

International Criminal Court

The International Criminal Court has relative gender parity compared to other international courts. The Rome Statute takes a new (and welcome) approach by creating active nomination obligations for State parties. Article 36(8)(a) codifies the need for “fair representation of female and male judges”. The current bench has near-equal representation, with eleven women and seven men. Although they are not officially part of the current bench, three (male) judges are staying on to finish past cases. Over the years, 26 out of the 59 judges at the ICC have been women (44%). Given the statistics, the ICC reflects the positive effect that such policy can have on gender representation. However, there has still been notable disparity in the past – between 2014 and 2020, female judges were consistently under-represented on the bench.

Importantly, however, the Statute also stresses the need for “equitable geographic representation”. Only State parties can nominate judges to the Court. The low number of ratifications by Asian States limits representation from this region. Over its history, the Court has had eight Asian judges (15%). At first glance, this statistic matches the regional breakdown of member States. 19 Asia-Pacific States have signed and ratified the Rome Statute, out of a total of 124 countries (15%). However, six out of eight of the Asian judges came from only two States – Japan and South Korea – showing the importance of disaggregating data about ‘regional’ representation. Over the years, four Asian women have served as judges: Kuniko Ozaki (Japan), Tomoko Akane (Japan), Fumiko Saiga (Japan), and Miriam Defenser Santiago (elected but resigned, Philippines).

UN International Residual Mechanism for Courts and Tribunals

The UN IRMCT was established by the UN Security Council in 2010 as the successor to the International Criminal Tribunals of Yugoslavia (ICTY) and Rwanda (ICTR). At its close, around one third of the judges sitting on the bench were women – 8 out of 25, including President Graciela Gatti Santana (Uruguay). Since 2010, 10 out of 36 of the judges that presided at the tribunal were women – 28%. Despite being established under the aegis of the UN, only two Asian judges – both men – ever sat at the IRMCT, i.e: Liu Daqun (China), and Seon Ki Park (South Korea).

Extraordinary Chambers in the Courts of Cambodia

At its close, there were three women judges at the ECCC – Claudia Fenz (Austria) Florence Ndepele Mwachande Mumba (Zambia), and Katrien Gabriël Witteman (Netherlands). Since its inception, only 8 out of the 31 judges that served at the tribunal were women (~26%). Moreover, despite being an Asia-based tribunal with both national and international staff, no Asian woman ever served as a judge.

Larger Picture

None of the courts surveyed had 50% gender representation through time. The only court with mandated gender representation, the International Criminal Court came closest – 44% of its elected judges were women (Figure 1).

Collectively, a total of 241 judges were elected to these four courts over time. Only 48 of them were women (~20%). Of those, only five were Asian women (10%) (Figure 2).

Regarding geographic representation, the 29 Asian international judges elected to these courts come from just eight countries: Mongolia, India, Japan, China, South Korea, Sri Lanka, and the Philippines. Moreover, judges from only three countries – China, South Korea, and Japan – make up almost half (19) of the Asian international judges elected through time (Figure 3).

Asian women judges were wholly absent from two out of four of the tribunals surveyed – the UN IRMCT and the ECCC. Even the largest international courts – the ICJ and the ICC – only had five Asian women judges through time. 

Beyond the Numbers

Whilst the analysis above shows that there is limited gender and regional representation across the courts surveyed, we miss many important details if we focus solely on the numbers. Looking more closely suggests that the limited representation of both Asian and women judges is heavily skewed towards a mere handful of States. This is evident when we examine the data on Asian judges. Through time, most of them came from only three East Asian countries, with limited representation for other sub-regions. Some may argue that this skew is the natural result of larger or more economically powerful countries electing more judges. However, even India, now the most populous country in the world, has only elected four judges – and no women – to the international courts surveyed. This suggests there are multiple factors at play. Similarly, the minuscule number of Asian women judges who have served at the above courts come from just three States:  China, Japan, and the Philippines. 

Despite fluctuations in the makeup of individual benches, the Rome Statute’s emphasis on gender representation has been fairly successful at ensuring gender parity through time. Could a similar approach to regional representation secure geographic parity too?

UN Human Rights bodies offer an insight into the effects of mandated regional representation. The Committee on Economic, Social, and Cultural Rights (ESCR), mandated that 15 seats will be equally distributed among regional groups in 1985, with four allocated to the Asia-Pacific region. These are currently held by representatives from South Korea, Thailand, India, and China. This shows that policies must go beyond promising ‘consideration’ for regional parity and mandate it through defined rules on allocation.

Intersectional and Intra-regional Representation: A Local or International Problem?

The above analysis shows how disaggregating and comparing statistics on the gender and nationality of judges at international tribunals illuminates broader issues. Specifically, the lack of Asian women across the courts surveyed reveals a lack of intersectional representation, and the skew of Asian nationalities represented exposes a lack of intra-regional representation.

Targeted policies can help improve gender and regional representation at the surface. But these deeper issues require a more localized approach. Being considered for a judgeship at an international court or tribunal often requires a long track record of (international) legal expertise and experience. Given this, lawyers hoping to enter public international law need equitable access to opportunities long before they apply to positions at international tribunals and courts, alienating women. Perhaps, instead of asking why no international women judges have emerged from a specific country or region, we should consider if a lack of international women judges implies a lack of visibility of women judges at the domestic level.

The Women in International Justice & Accountability (WIJA) project of the Asia Justice Coalition aims to increase women’s leadership in international law by implementing interventions in three Asian jurisdictions, for now: India, Bangladesh, and Sri Lanka. Notably, both India and Sri Lanka have sent judges to the international courts surveyed, but none of them were women. Across all three jurisdictions, the number of women in the legal profession decreases with seniority. Statistics about law school enrolment and junior roles may spark hopes of growing equality but numbers from the higher judiciary tell a different story. Many complex realities underpin this phenomenon – gender roles, workplace culture, men holding a disproportionate amount of decision-making power, etc. Unfortunately, this trend is not unique to South Asia – statistics from Canada and the USA show a similar lack of women’s leadership in the legal profession.

Conclusion

In conclusion, analyzing the gender and nationality of judges highlights serious disparities, especially at courts without mandated statutory representation. Implementing policies that encourage better nomination practices could create a much-needed shift towards equality at these institutions. However, disaggregating the statistics reveals a lack of both intersectional and intra-regional representation. Although these issues could be partially alleviated through policies at the international level, they also require more localized work through grassroots-led interventions that encourage long-term social change. The adoption of the Beijing + 30 Action Agenda marks an important opportunity towards the achievement of gender parity in decision-making power across various systems, including international courts.