20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
7 December 2021
Name of the Event: Gender Sensitive Judging in International Criminal Courts (co-hosted by: Australia, the Netherlands, Uganda and Africa Legal Aid (AFLA))
Report by: Lotte Peters, Junior Research Associate PILPG-NL
Highlights:
The panelists highlighted the importance of gender-sensitivity training for judges, for instance aiming at facilitating understanding of different power relationships.
Although much remains to be done, the panelists responded positively to recent developments in international criminal law regarding gender-sensitivity.
The panelists agreed that actors on all levels of society must cooperate to protect victims of gender-based violence.
Speakers:
Evelyn A. Ankumah, Executive Director, Africa Legal Aid (AFLA); Coordinator, Gender-Sensitive Judging Series
Judge María del Socorro Flores Liera, International Criminal Court (ICC)
Judge Janet Nosworthy, Special Tribunal for Lebanon (STL)
Judge Florence Mumba, Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia (ECCC)
Judge Althea Violet Alexis-Windsor, International Criminal Court (ICC)
Judge Fatoumata Dembélé Diarra, Former Judge and First Vice President, International Criminal Court (ICC)
Gabrielle Louise McIntyre, Chairperson, Women’s Initiatives for Gender Justice; Chairperson, The Truth, Reconciliation and National Unity Commission, Seychelles; Co-Coordinator, Gender-Sensitive Judging Serie
Summary of the Event:
Ms. Evelyn Ankumah opened this event on gender sensitive judging at international criminal courts by highlighting the importance of a gender-sensitive lens in adjudication, which provides a safe space for women and promotes awareness of gender biases. She expressed that such gender-sensitive adjudication can ensure a more inclusive and impartial international criminal justice system.
The floor was first given to Judge María del Socorro Flores Liera, who spoke about the interpretation of crimes from a gender perspective. She expressed the need for deep changes from all stakeholders: including prosecutors, practitioners, civil society organizations, states, and judges. Gender balance in the bench is not enough. All judges of international courts and tribunals should be aware of gender sensitivity. She further explained that women and girls are disproportionally affected by international crimes and violence as a tactic of war, and continuously face structural discrimination. According to her, “judges all over the world do not escape social constructions and are not immune to stereotypes.” She therefore highlighted the importance of gender-sensitivity training for judges. However, strengthening gender-sensitive judgement goes beyond the judiciary: it requires commitment from all stakeholders at different levels of society.
The second speaker, Judge Janet Nosworthy, spoke on interpreting crimes. She emphasized the role of judges in their interpretation of legislation, noting it is important to put a human face – a gender face – on the law to achieve justice “with the eye firmly placed on the long-term objective of world peace.” Judges of international courts and tribunals should engage in dialogue on new methodologies that enhance the judicial process and provide better interpretive solutions for contemporary times. Especially a more diverse range of judges enhances the quality of judicial debate. As men and women approach issues differently, a female contribution impacts judicial determination and the outcome. She therefore concluded that judges should look to and learn from the gender-sensitivity movement to improve the process of justice.
The third speaker, Judge Florence Mumba, provided a brief presentation about gender in the context of assessing the credibility of evidence. She first affirmed that assessing the credibility of evidence may be impacted by gender stereotypes. Therefore, evidence should be considered holistically and critically examined to avoid bias. Most importantly, she stressed that content must be the first and primary focus in the assessment of evidence before an international criminal court or tribunal.
The fourth speaker, Judge Althea Violet Alexis-Windsor, highlighted the importance of acknowledging gender-based targeting, especially in post-conflict contexts. She explained that oftentimes there is evidence about gender-based targeting, but fails to be explicitly called gender-based targeting and thus is no longer part of the evidence. However, gender-based targeting is not incidental or opportunistic. Rather, it is purposeful and specific, especially in times of conflict. While during the Nuremberg and Tokyo Trials, rape against women and girls was considered an “inevitable consequence of war,” Judge Alexis-Windsor affirmed that this has changed over the years. ICTY and ICTR cases revolutionarily decided that war time rape and sexual violence are, in fact, a tool of genocide. The Rome Statute reflects this important development, as sexual violence and gender-based crimes can be prosecuted as crimes against humanity and war crimes. She concludes that these offences should be specifically acknowledged, and not treated as incidental or opportunistic, in order for victims to better deal with the past.
Fifth speaker Judge Fatoumata Dembélé Diarra presented on the principle of complementarity from a gender perspective. She opined that the ASP should review Article 17 of the Rome Statute to include provisions taking into account errors made in prosecuting perpetrators of international crimes. Judge Dembélé Diarra found it regretful there is no solution in cases the Court does not manage to prosecute perpetrators of crimes that have been proven to be committed. She found it imperative to include in the Rome Statute a provision in the case the Court is unable to establish a perpetrator’s responsibility, to account for the women who have endured sexual violence at the hands of those perpetrators.
The event’s last speaker, Gabrielle Louise McIntyre, reiterated that crimes against women have historically been neglected and minimized. Domestic legal systems are designed for, and by, men. Therefore, McIntyre said, the justice system has both made women invisible and silenced them. However, in line with Judge Alexis-Windsor, she expressed her belief that the Rome Statute represented a shift in this regard. For the first time in international criminal law, the Statute defined gender as a social construct and included a vast array of crimes that are specific to women’s experiences. McIntyre was also positive about recent developments within the ICC regarding gender policy and significant improvements in the prosecution. Nonetheless, she noted that the Court should further improve measures to account for the experiences of women and victims of gender-based crimes. “The solution is not just adding more women to the mix,” she reiterated. Concluding, she shared her appreciation for the other panelists: the deep appreciation of gender that showed throughout their presentations needs to be mainstreamed throughout the Court.
The side event ended with several questions from attendees. According to Judge del Socorro Flores Liera, gender-sensitivity training of judges should be aimed at facilitating understanding of different power relationships. This should be incorporated in the way judges deliver justice. Judge Alexis-Windsor added that international law does not need to be changed: judges simply have to incorporate gender-sensitive awareness. This movement includes both women and men, with Judge Mumba highlighting that especially men are reluctant to come forward when they have been sexually assaulted. She affirmed that investigating officers and prosecutors should be explicitly trained for this when recording evidence, and most importantly, the international community should encourage victims of sexual assault to come forward. Judge Alexis-Windsor agreed: all sections of society should work together to ensure that victims are not revictimized upon return to their community after having testified as a witness. Judge Mumba acknowledged that cultural differences play a big role in the reluctance of victims of sexual assault to come forward. She highlighted that civil society organizations are able to support judicial systems to deal with these cultural differences and deep psychological impact. Indeed, Judge del Socorro Flores Liera agreed that all actors on all levels of society are required, both for the protection of victims of gender-based violence, and for gender-sensitization in adjudication.