Symposium on Gender Representation: Gender Parity in International Courts – The Voice of an International Judge

[Elizabeth Odio Benito is President of the Inter-American Court, a former judge on the International Criminal Court and on the International Criminal Tribunal for the former Yugoslavia.]

As I look back on my journey as an international judge, I recall a specific moment when I was asked to chair a so-called ‘Court of Conscience’ in the midst of the World Conference on Human Rights in 1993. Hundreds of women, among them distinguished colleagues and dear friends, had come to Vienna with one common objective: the recognition of Women’s Rights as Human Rights. As States representatives and members of NGOs and Civil Society Organizations arrived in Vienna for the Conference, so too did a group of survivors from the Balkan Civil War that had started the previous year, in 1992. Even though the International Community had long been aware of the sexual violence waged against women and children of all ages and ethnicities in the conflicted territories, justice had not yet been served. So, we did what was right at the time. We were part of this ‘Court of Conscience,’ expecting that the victims’ voices would finally be heard, and their stories would finally be told.

As I sat for hours and listened to individual and collective experiences of sexual violence and slavery, torture, forced pregnancy, along with other heinous practices aiming to humiliate victims, demean them, and destroy their lives, families, and religious groups, I told myself that I could never work in a Court that knew and ruled over these kinds of horrors.

How Many Times Does a Woman Need to Be Raped for You to Consider it a War Crime, Counsel?

Despite the promise I made to myself, that same year I was chosen along with Judge Gaby Macdonald (United States) as the one of the only two women to integrate the ad hoc International Criminal Tribunal for Former Yugoslavia. As I reminisce and search for the reason that made me change my mind, one thing is clear: The testimonies of the Balkan women moved me so deeply that I decided I was going to do everything in my power to fight for justice for women at the international level. Against all odds, that was the same purpose that united Judge Macdonald and I.

We faced many difficulties. Some of them more anecdotal than others. However, the most powerful one was the resistance to characterize gender related crimes and sexual torture as such. For centuries, women’s bodies were transformed into weapons of war. Militias, military officials, both legitimate of illegitimate combatants, all of them, have resorted to rape and sexual violence as warfare tactics. These actions were not considered as individual or collective crimes, but as ‘‘contextual’’ or ‘‘side actions’’. Women were invisible to international law.

I recall one episode when I was a sitting Judge at the ICTY. During a cross-examination of a victim of sexual violence, a defense counsel asked, trying to prove his point that rape could not be considered a war crime: So, you were only raped once? I was so disrupted by the question that I asked him: “In your opinion, counsel, how many times does a woman need to be raped for it to be considered rape?”

Women Belong in All Places Where Decisions Are Being Made

Our efforts at the ICTY made it possible for international law to consider rape and other sexual assaults as torture. With this example, I want to show how crucial the participation of women in international bodies is.

Of course, the Rome Statute of 1998 was pivotal in including sexual violence under the scope of international crimes. However, violence and discrimination against women do not only take place during armed conflict. These occur every day, in every sphere of our lives, in the daylight, in the public and the private, in our homes, in our workplaces, and in relation to education and healthcare. Violence against women is only the tip of the iceberg that includes sexual harassment labor inequality, the glass ceiling, the lack of access to education, gender micro aggressions, and many other forms of gender-based discrimination.

It is clear to me that the challenge for women all over the world in search of substantive equality does not end here. As the late Justice Ruth Bader Ginsburg accurately stated, “Womenbelong in all places where decisions are being made’’.

The Three Components of Gender Parity: Human Rights, Democracy, and Sustainable Development

From a human rights stand point, achieving equality in the judiciary is an urgent goal. On the one hand, equal access to public offices under equal conditions is a human right. On the other hand, the representation of women in the judiciary is essential for the rule of law, as well as a basic component of the right to access to justice. As to the latter, I cannot stress the importance of women in the judiciary’s contributions enough. Thanks to the contributions of great women such as former judge Cecilia Medina Quiroga, the Inter-American Court of Human Rights ruled on the most groundbreaking cases related to violence and discrimination of women and girls. In cases such as Castro Castro Prison V. Peru and González et al.(‘‘Cotton Field’’) V. Mexico, the Court established the obligation of the State to use a gender lens when hearing cases of violence against women. An understanding of the power dynamics of gender is key to eliminating reductionist approaches to international law. The use of this gender perspective has made visible the most common gender stereotypes, as well as the possibility to analyze and reject them. Moreover, its case law is not limited to cases of violence. The Inter-American Court has also analyzed a wide range of cases on gender-based discrimination spanning sexual and reproductive rights, access to health, and education.  The message is clear: The law (whether domestic or international) must not turn a blind eye on women.

As for democracy, the composition of a justice system must reflect the diversity of its own society. The inclusion of women at all levels of the justice system allows the judiciary to gain credibility and legitimacy in the eyes of the public. 

In addition to being an imperative to human rights and democracy, gender parity is also a component of sustainable development. The Sustainable Development Goal 5, ‘‘Gender equality,’’ is clear: Women and girls everywhere must have equal rights and opportunity and be able to live free of violence and discrimination. Women’s equality and empowerment is one of the 17 Sustainable Development Goals, but it is also integral to all dimensions of inclusive and sustainable development. Therefore, Sustainable Development Goal 16 that looks to ‘‘peace, justice and strong institutions’’ requires the effective, accountable, and inclusive participation of women in all spheres of government, especially the Judiciary.

As gender parity moves towards the pinnacle of the global agenda, the justice system struggles to leave behind its traditional, mostly male composition, in judicial benches across the globe. This sentiment was echoed by the Human Rights Council Advisory Committee in its report titled “Current levels of representation of women in human rights organs and mechanisms,” which reflected on the over-representation of men in the United Nations’ organs and mandates responsible for administering, implementing, and developing International Human Rights Law. Gender equality and the empowerment of women and girls around the world has also gained special significance, as it constitutes the fifth Sustainable Development Goal. Additionally, Goal 16 also looks to consolidate fair, pacific, and inclusive societies, which can in no way be achieved without the participation of women.

Our European peer, the European Court of Human Rights, is composed of one judge per country contracted to the European Convention of Human Rights. Currently, there are 47 judges in total. Out of the 47 permanent judges, only 14 are female judges.

The African Court on Human and Peoples’ Rights is composed of 11 judges. Currently, it is chaired by Justice Imani Daud Aboud and is made up of 5 male judges and 6 female judges, including Madam President. This is a great example of what gender equality in the Court can look like.

In its current composition, the Inter-American Court of Human Rights is composed of six male colleagues and myself, as the single female judge and President. In the entirety of the Court’s existence, only four other distinguished women have occupied the bench. Sonia Picado Sotela was nominated by Costa Rica and served as the first female judge and vice-president in 1991. In 2004, Chilean judge Cecilia Medina Quiroga joined the Court, and was elected as vice-president three years later. The same year, Jamaican judge Margarette May Macaulay was elected along with judge Rhadys Abreau Blondet from the Dominican Republic. In light of said elections, 2007 was the year with the highest proportion of women represented on the bench of the Inter-American Court to date. The following year, judge Medina Quiroga became the first female president, making me, in 2019, the second woman in history to ever preside over the Inter-American tribunal.

As much as presiding over this honorable Court has been one of the highest accolades of my career and life, it is my hope for future elections that States take note of the importance of equal representation in order to accomplish our mission as judges – the protection of human rights in the region.

Women Belong on the Bench

As I myself have often been one of the privileged few or the only woman to occupy certain positions in judicature, I raise a challenge to all justice systems to strive for parity in their structures. In line with this agenda, on March 8^th of this year, the Inter-American Court of Human Rights presided over a three-day cycle of conferences titled “Challenges for gender parity in justice: Mechanisms and opportunities to overcome obstacles in the advance of women in the judicial field”, which reflected upon the issue. As part of that event, the Court had the honor to collaborate with some of the most prestigious female jurists and influential women, including Silvia Fernández de Gurmendi, Margarette May Macaulay, Nancy Hernández, Sylvia Steiner, Alejandra Mora Mora, Maria-Noel Vaeza, Vanessa Ruiz, Viviana Krsticevic, Julissa Mantilla, Romina Sijniensky, Elvia Barrios Alvarado, Andrea Muñoz Sánchez, Clara Mota Pimenta, Norma Lucía Piña Hernández, Daniela Salazar Martín, and Luz Patricia Mejía. All of them presented compelling and informed arguments on the equal inclusion of women within the justice system at the international and domestic spheres. (Recordings of the conference can be accessed here: panel 1 / panel 2 / panel 3 )

Among the many relevant conclusions of the conference, participants identified the formal and social, cultural, and economic barriers that perpetuate the underrepresentation of women in justice. To name a few:

• Selection processes for judges are not inclusive
• Biases on behalf of judicial authorities, and also from society as a whole, impact how women’s capabilities as judges are perceived
• Gender stereotypes, harassment, and discrimination discourage women from seeking to join the judiciary
• Women face violence and discrimination as a consequence of holding public offices, or even for participating in selection processes for these offices
• There is a lack of access to specialized education or training on the judicial field

Gender parity is a human rights, democracy, and development issue. Female judges contribute substantively and substantially to the inclusion of women in all fields of life. Together we can take action so that the rule of law protects the human rights and inherent dignity of all human beings. Women belong to all the spheres of the public life. Women belong to the bench. It is the time of women, once and for all.