Monday, October 5, 2009

What do women want from international criminal justice? To help shape the law

(Part 1 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald)

Women want to be a significant part of the tribunal process. In the words of one of my former colleagues still laboring away at the International Criminal Tribunal for the former Yugoslavia:

'As long as men make the decisions for women, irrespective of how well-intentioned they may be, the particular experiences of women in armed conflict will always be overlooked.'
Progress in integrating women fully into all aspects of the tribunals’ activities has been encouraging, but still far from optimal; indeed, the United Nations itself mirrors that same measured rate of advancement.
The tribunals have generated some outstanding women leaders. Luminaries include Chief Prosecutors Louise Arbour (right) and Carla Del Ponte (below left) and Presidents Gabrielle Kirk McDonald (middle right), Navanethem Pillay (bottom left), and Renate Winter (middle left). Except perhaps for the International Criminal Court, whose statute mandates representation of women, and the Special Court for Sierra Leone, where 4 out of 11 judges are women, in totality the number of women judges has not been up to the mark.
While I was on the ICTY, we had 2 to 14 women; there are now none save for the ICTR woman judge appointed to the joint appellate chamber. There have never been more than 3 at a time. In late 2001 as I was leaving, only 1 woman had been nominated for the new group of judges coming in, and it took an explosion of outrage by NGOs and the European press to galvanize the nomination of more women as ad litem judges to help fill the gap.
Part of the difficulty in getting more women into leadership positions is obviously traceable to the selection process: judges, on the U.N. courts at least, appear to be selected by region, so the onus is on the national governments to nominate women. Governments have appeared likely do so principally when their domestic constituencies pressure them. Thus, women’s groups and NGOs should turn their attention to becoming even more active in the electoral and nomination sphere.
Why is it so important to have a significant number of women judges and high-level prosecutors?
We have very recently been asking this same question about judges in the United States. Our record – about 1/3 of federal judges are women – is not brilliant. Our Supreme Court record – never more than 2 out of 9 – is downright pitiful. Other nations have done far better.
So far, research does not give a definitive answer as to whether women decide substantial number of cases differently than men. But I will tell you:
Women do bring different life experiences to the court.
And given the concentration in the tribunals – on campaigns and assaults against civilians, most of whom are women – women judges' insights are especially relevant.
Our own Supreme Court demonstrated the case for women’s input in a recent case involving the strip search of a 13-year-old schoolgirl suspected of carrying a few aspirin. While some of the men Justices thought her experience not so different from their own schoolboy disrobing for gym class – even though it resulted in her leaving school and developing an ulcer – the single woman, Justice Ruth Bader Ginsburg (right), expressed her exasperation at argument and called the experience “humiliating.” The Court ultimately found such a drastic response by the school a violation of the girl’s fundamental right.
In tribunal history, some have attributed the progress already made in recognition of gender crimes as major instruments of war at least partially to the infusion of talented women judges and prosecutors, however few their number. The five major gender-crime precedents were made when at least 1 woman judge sat. Playing a commanding role was Judge Pillay. After hearing plentiful evidence of gender crimes admitted to prove other offenses, she requested midtrial in the Akayesu case that the prosecutor go back and re-decide whether to bring a separate gender-crime charge. Her intervention ultimately resulted in the first major gender-crime conviction in tribunal history.
I would also stress the importance of women judges and prosecutors themselves not hesitating to draw on their own sensitivities and experiences in interpreting the law and the relevance of evidence in factfinding.
I do not of course mean women should give free rein to their preferences – an accusation frequently hurled at judges in my country by critics who do not like their decisions. All judges should follow the law as it is written, and as interpreted by prior courts whose rulings bind them. But as all judges, domestic and international grapple with, for instance:
► the precise scope of a somewhat vague provision in a statute; or
► the precise reach of a prior ruling; or
► the status of an alleged crime in international customary law; or
► which of two allegedly conflicting provisions in the charter should prevail; or
► whether a provision was intended to cover an atypical situation; or
► which justifications were meant to be credited as legitimate defenses.
All these dilemmas demand judgment, not just word-parsing by a judge. Her life experiences will inevitably, and should, influence that judgment in many cases. We should not deny the tribunals the benefit of women’s unique experiences and insights; they can and do make a difference. I have seen it on the courts, at home and abroad, in which I have judged.

(Tomorrow's post: paying due attention to needs of women and children; Wednesday's post: extending crimes against humanity to peacetime oppression of women)

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