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RESEARCH
Achieving Gender Parity: A Comprehensive Analysis of Women’s Underrepresentation on the International Court of Justice and Strategies for Future Reforms
LAURA WEGNER, Harvard College '25
THURJ Volume 14 | Issue 2
Abstract
The International Court of Justice (ICJ) is the highest judicial entity within the United Nations, resolving international conflicts to maintain global peace. The current judge selection process for the ICJ ensures diverse geographic representation with judges of varied nationalities, races, and cultures. However, female judges are underrepresented, comprising only 4.6% of judges in the court’s history. This research article aims to examine the connection between this lack of female representation and the judge selection process, starting from the nomination phase and extending through the election process. It is argued that there are four primary drivers for female underrepresentation on the ICJ: almost exclusively focusing on geographical representation, a male-dominated nomination process, the preference of judicial qualities aligned with expertise in male-dominated professions, and re-elections allowing judges to serve multiple terms. A diverse ICJ bench is imperative to ensure impartial case outcomes because they have the potential to impact entire societies. Consequently, equitable representation of the global population at large is inevitable. This research article proposes strategic reforms focused on refining the nomination and election procedures to achieve gender parity on the ICJ.
Introduction
The International Court of Justice (ICJ) is a powerful symbol of humanity’s ongoing pursuit of peace during conflict. Located within The Hague’s Peace Palace in the Netherlands, the ICJ was established in 1945 as the highest judicial body of the United Nations (UN). Its primary mission is to resolve disputes among countries through dialogue and the law, rather than resorting to violence. With jurisdiction over public international law disputes among the 193 UN Member States, the ICJ addresses issues such as conflict, war, and genocide, all in the pursuit of maintaining global peace and stability (List of All Cases, n.d.). Having handled 193 cases as of March 2024, the ICJ remains committed to upholding justice worldwide (Cases, n.d.).
Achieving justice in international courts is contingent upon a diverse bench of judges, each contributing unique perspectives and backgrounds to legal proceedings. This diversity is exemplified through the variety of interpretations of the law, stemming from differing legal philosophies, cultural viewpoints, and professional legal experiences. Such diversity guarantees a thorough examination of every aspect of a case, enabling judgments that authentically encapsulate the complexities of conflicts between countries while adhering to legal principles.
However, despite the ICJ’s mission of advancing humanity’s pursuit of world peace, it has encountered significant challenges in crafting a bench of judges that truly reflects the diverse perspective of the global societies it aims to serve. In other words, the court has never had more than four female judges at any given time, despite its bench consisting of 15 seats. These challenges contrast with the achievements of other institutions, such as the International Criminal Court (ICC), which successfully achieved gender parity back in 2018. Unfortunately, the ICJ has yet to make substantial progress in this regard. In fact, the ICJ is still as diverse in 2023 as it was ten years ago, raising concerns about the court’s ability to authentically represent the perspectives of the states it serves. Four out of the fifteen judges are currently women, the highest number in the history of the court. The court strives to include different nationalities and, therefore, different cultures, but, to this day, the ICJ does not yet have a well-balanced number of female and male judges. In a court that is representative of different countries, racial groups, and religions, why are female judges on the International Court of Justice still underrepresented?
The underrepresentation of female judges on the ICJ arises from four main factors: emphasis on geographical representation, a nomination process predominantly controlled by male decision-makers, the preference for traits commonly associated with professions primarily pursued by male ICJ candidates, and judge re-elections that keep current judges on the bench for multiple terms. These distinct issues reinforce the underrepresentation of women on the ICJ by creating a cycle in which male legal professionals set the bar for future judges who turn out to be like themselves. Increasing the number of women on the ICJ is crucial because only then can the general global population be represented truthfully, leading to case outcomes grounded in the law and more accurately reflecting the opinions of the global population.
In the process of answering the question of why female judges on the ICJ are still underrepresented, eight international experts from eight different countries were interviewed in December 2022 and January 2023 on their perspectives on gender parity in the context of international courts, the nomination process to the ICJ, and potential ways to increase the female representation on the ICJ bench, such as the elimination of judge re-elections and the introduction of a gender quota.
The Importance of Gender Parity
Improving representation on the ICJ is a crucial step to take because it will allow for more diverse perspectives to contribute to court decisions. Not achieving gender parity on the judicial benches is problematic because the court’s decisions impact entire societies. The ICJ should have both gender equality—achieved through policy changes to treat women and men equally—and gender parity, the demand for ‘an equal number of women and men,’ or in this case meaning seven or eight female and male judges each on the ICJ bench (Corsi, 2021). Decisions impacting the lives of both men and women are still, in the 21st century, predominantly being made by men in the highest jurisdiction sphere. This is especially, but not exclusively, important for cases involving women’s rights: The case Croatia v. Serbia (1999–2015), which decided ‘on whether rape and sexual violence constitute acts of genocide,’ had only three female judges on the bench and therefore involved in the decision-making process (International Court of Justice, n.d.). This presents an issue because sexual violence during conflicts and genocides is primarily inflicted upon women, underscoring the importance of female judges’ perspectives (Kelsey-Sugg et al., 2024). The ICJ ultimately decided that, while both countries committed acts of genocide, there was not enough evidence showing ‘genocidal intent’ (Milanovic, 2015). The ‘intent’ hereby includes both physically and mentally harming victims (Application of the Convention, 2015a). The three women, Judge Hanqin, Judge Donoghue, and Judge Sebutinde, submitted two individual declarations and one separate opinion. Judge Hanqin and Judge Donoghue submitted declarations and voted like the majority of the court but wished to express their individual concerns with the overall judgment. Judge Sebutinde submitted a separate opinion because she disagreed with the overturning of one of Serbia’s preliminary objections to Croatia’s claim against ‘violations of the Convention on the Prevention and Punishment of the Crime of Genocide’ during the Balkan War. In her opinion, upholding the objection could have led to a different court decision (Application of the Convention, 2015b). Out of the male judges, 58% submitted additional documents stating their individual opinions (Application of the Convention, n.d.). The more individual documents are submitted, the lower the legitimacy of the court decision. All female judges submitting additional documents after the court decisions had been made shows that they did not agree with the entirety of the decisions. The less diverse a court is, the more judging processes and results lack legitimacy (Kenney, 2013). Given that women are often disproportionately impacted by sexual violence compared to men, they are likely to offer a distinct perspective on the same matter. The outcome of the case might have been different had there been greater female representation on the bench.
Among experts, the consensus is that the legitimacy of court decisions can improve with an increased presence of female judges on the bench, even though it is generally difficult to isolate the exact factors that improve legitimacy. ICC judge Alapini-Gansou from Benin shared her opinion on whether more female judges on the ICC improved legitimacy upon achieving gender parity. She has been a judge on the ICC since March 11th, 2018. Prior to serving on the ICC bench, Judge Alapini-Gansou worked at the African Commission on Human and Peoples’ Rights for 12 years, including three years as Chair of the Commission from 2009 to 2012. From 2012 to 2014, she was a judge on the Permanent Court of Arbitration (Judge Reine Alapini-Gansou, n.d.). When interviewed, she argued that she does not ‘want to pay tribute to women for that [increased legitimacy] because all of us [ICC judges] are here to improve legitimacy of the court’ (Judge Alapini-Gansou, 2023). However, according to another expert, Nathalia Contreras-Pardo from Colombia, who has taught human rights and constitutional law at the Universidad de Los Andes and the University of North Carolina, gender parity is crucial. She argues that achieving gender balance is essential for fostering broader societal trust in court decisions, thereby enhancing their legitimacy (Contreras-Pardo, 2022). Court legitimacy is important because, if judges do not reflect the global community, ‘then there will be more of a reluctance to resort to the legal system’ (Khalifa, 2022). Judges on the ICJ bench are entrusted with the task of interpreting international law and advocating for the interests of the citizens of the nations they represent. This responsibility cannot be adequately fulfilled by a bench consisting of only one gender. An anonymous informant added that, especially when issues involve gender, ‘like gender-based violence, women’s voices are lacking and improving their representation probably does have an effect on [the] content [of the court’s decisions]’ (Anonymous #1, 2022). Arriving at more well-balanced decisions can only happen if different parts of the population are equally represented. The world’s population is made up of 49.6% women and 50.4% men, so 4.6% of judges in the history of the ICJ having been female clearly shows that there is a gender imbalance (Corsi, 2021). There are multiple causes for this misrepresentation, starting with the formulation of the Statute of the ICJ.
The ICJ Statute and the Focus on Geography
The ICJ aims at representing the world’s population on its bench. While its strategy of appointing a certain number of judges from predetermined regions has proven effective in generating a balance of different ethnicities, races, and nationalities, it has resulted in the exclusion of female judges. Article 9 in Chapter 1 of the Statute of the ICJ lies out the responsibilities of the ICJ to ensure a well-rounded constellation of the bench:
At every election the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured (Statute of the International Court of Justice, 1945).
The word ‘shall’ renders the language of the Statute of the ICJ rather suggestive. To represent ‘the main forms of civilization,’ the ICJ mostly focuses on geographical representation (Statute of the International Court of Justice, 1945). To do so, the ICJ splits the world map into five regional groups: Latin America and the Caribbean (two judges), Eastern Europe (two judges), Western Europe and other countries, including the United States (five judges), Africa (three judges), and Asia (three judges). This is an issue because female judges in certain regions, such as East Asia and the Pacific, as well as Sub-Saharan Africa, respectively only make up 17.78% and 23.95% of total judges (Constitutional Courts In Latin America And Sub-Saharan Africa, n.d.). Female judges are undervalued in these regions, resulting in less support on their way up the judicial ladder. Nathalia Contreras-Pardo argues that the ICJ ‘... was created in a different context’ where gender parity was not yet a policy goal ‘... and the question is why it [the ICJ Statute] has not been updated to the recent standards of equality’ to strive for gender parity (Contreras-Pardo, 2022). It follows that the outdated language of the Statute of the ICJ creates a barrier to success in the legal field for women and drastically limits the size of the nomination pool for female judges.
The scarcity of female judges on national courts is another factor that affects their presence in international courts. An expert on national courts, Amani Khalifa, participated in an interview on this topic. She is a lawyer at Freshfields Bruckhaus Deringer LLP, specifically engaged with cases in the Middle East and North Africa region. Her focus lies in the real estate as well as the oil and gas sectors, and she was called the ‘future star of arbitration’ by the Chambers Global legal rankings (Amani Khalifa, n.d.). Khalifa is the Co-Chair of the Africa Steering Sub-Committee for the Equal Representation in Arbitration (ERA) Pledge, advocating for female representatives on international arbitral tribunals (Committees, n.d.). Khalifa finds that if there are fewer women judges on national courts, there will be ‘fewer women on international courts as well’ because what might be perceived to be relevant experience to decide cases would not be found in many female candidates and ‘there is no substitute for experience’ (Khalifa, 2022). Since an all ‘male environment is taken for granted as being the default situation,’ it is difficult for women to work themselves up the judicial ladder in the same way (Anonymous #1, 2022). Khalifa describes this as a circular problem because female judges need experience to be nominated and later elected, but they are not provided the opportunity to work themselves up the judicial ladder. Even if potential female and male judges have equivalent credentials, the smaller pool of female judges lowers the chances of a woman being selected because male candidates outnumber female ones (Khalifa, 2022). Focusing on only geographical representation without accounting for low numbers of nominated female judges in some of the regions has therefore contributed to the exclusion of women on the ICJ. However, even if there are few female judges on national courts and therefore in the nomination pool of regions like East Asia and the Pacific or Sub-Saharan Africa, they technically only need one qualified woman to be nominated to have her elected and represent the region later. Therefore, geographical representation cannot be the sole reason for the underrepresentation of women on the ICJ.
The Nomination Process
Fifteen judges serve on the court, usually for nine-year terms. The election process begins locally within the regional groups. Within these regional groups, there are national groups consisting of four individuals with judicial expertise and diverse political affiliations who nominate judges to the ICJ. Article 6 in Chapter 1 within the Statute of the ICJ advises that, prior to formal nomination procedures, the national groups should seek input on potential nominees from reputable entities, including the highest court of justice in the respective country and faculty members from leading law institutions (Statute of the International Court of Justice, 1945). These institutions tend to be highly male dominated. For instance, the United States’ Supreme Court comprises four female judges alongside eight male judges (Current Members, n.d.). The United Kingdom’s Supreme Court features two female judges and ten male judges (Biographies of the Justices, n.d.). Likewise, within law schools, there is a disparity in the representation of female faculty members. Harvard Law School, for instance, has 28% full-time female faculty and 72% full-time male faculty members (Jenkins, 2018). Consulting predominantly male stakeholders during the domestic nomination process of ICJ judges could bias judge selection towards male candidates. Increasing the involvement of female stakeholders in the nomination process may enhance the chances of nominating female judges to the ICJ.
Psychological Influences on Judge Selection
According to the Oxford Handbook of Social and Political Trust, psychologically speaking, humans ‘place [their] highest levels of trust in people [they] interact with most closely and who are most like [themselves]’ (Uslaner, 2017). For the ICJ judge election process, this suggests that predominantly male decision-makers in the nomination process rather first think of male candidates and, if even, only of few female potential judges. However, this does not only have to be the subconscious favoring of people who are more like themselves, meaning men electing men, but also that fulfilling a high judicial role at the ICJ requires trust. People tend to trust candidates who are most like the nomination stakeholders and who are part of the same group, the male gender group in this case (Uslaner, 2017). These subconscious biases are difficult to measure or to eliminate.
Male Domination in the Nomination Process
By consulting primarily male organizations during the ICJ nomination process, institutional sexism—discrimination within institutional frameworks based on an individual’s gender, such as salary gaps in the workplace—contributes to the absence of female nominees (Capodilupo, 2017). Many presume that men are competent for positions in the government or the legal system, whereas women must demonstrate their extraordinary competency. Amy Cuddy, an American social psychologist, describes this as the ‘warmth and competence’ group stereotypes where ‘warm’ people are ‘good-natured, trustworthy, tolerant, friendly, and sincere’ and ‘competent’ people are ‘capable, skillful, intelligent, and confident.’ The combination of these characteristics varies across gender groups, where women fall into the ‘warm but not competent’ category unless they are wealthy and white (Cuddy et al., 2008). Cuddy mentions that feminists were even categorized as both low on warmth and competence. Potential male judge nominees are more likely to be seen as warm and competent opposed to female candidates because ‘... when groups tend to be concentrated in certain roles, they receive the stereotypes that follow from those roles’ (Cuddy et al., 2008). The international judicial roles are mostly filled by men and therefore connected to the stereotypical character of themselves. This gender bias and the resulting constellation of the government, law schools, and courts reinforce the lack of female ICJ nominees through this institutional sexism. On America’s highest court, the Supreme Court, there were three women in 2010 when the American female judge, Joan E. Donoghue, was appointed to the ICJ as the first American woman. This was also the first year when three female judges served on the Supreme Court instead of two in the years before (Cornell Law School Legal Information Institute, n.d.). This correlation suggests that, once women are involved in decision-making, the outcomes of judge election processes are different. Still, the numbers of women in high government and law positions are too low to achieve gender parity on the ICJ in this way.
Vote Trading
The nomination process becomes increasingly complicated because countries leverage their international power and political relationships for vote trading, shaping the composition of the judge nomination pool. Luka Misetic, a partner at the international law firm Squire Patton Boggs, clarified that, at the end of the day, states, and not the national groups, have the last word in candidate nominations and elections (Misetic, 2023). As the youngest lawyer to defend a case in front of an international criminal tribunal, Misetic defended Croatian General Ante Gotovina before the International Criminal Tribunal for the former Yugoslavia in The Hague and was named one of the 100 most influential Croatians in the world (Bach, 2006; Luka S. Misetic, n.d.). According to Misetic, the reasons for why there are few female judges on international courts are ‘systemic,’ one of them being that many of the candidates are appointed in ‘diplomatic trading’ (Misetic, 2023). This diplomatic trading shows itself within a country through making deals with other countries to vote one way for a particular judicial candidate and in exchange agreeing on another unrelated vote at the UN. Misetic says he ‘wished it were the case that they [national nominating groups] were getting excellent resumes from professional judges and then pick the best judicial candidate, but that is not how this process works.’ For example, if Germany wants to present a candidate, they must look for other states willing to vote for that German candidate. A German male law professor who was interviewed and wished to remain anonymous explained that, in return, Germany makes promises to these states to vote for their candidate on a different occasion, such as for a Security Council membership (Anonymous #2, 2023). This candidate can therefore only be successful if the German government supports them and is willing to trade the German vote on a different occasion. Heavily involving a country’s political interests outside the judicial appointment to the ICJ leads to the following problem:
Some societies are traditionally not viewing women in or advancing women to positions of authority, whether they be judges or whether they be diplomats. You [the nominating groups and governments] still have to make deals with those countries to get your [their] candidates on. So, you [they] might end up having to pick judges from the Middle East, from African countries or from Eastern Europe where they might have a societal legacy of not advancing women. You [they] still have to make deals with those countries, so that you [they] pick someone from their region or their country in order to get your candidates on board (Misetic, 2023).
Vote trading therefore strongly influences the nomination pool beyond the direct control of regulators, driving down the number of female candidates that could potentially be elected. A recent example from the ICC is Zlata Đurđević from Croatia who received an endorsement from the UN committee for her candidacy, while her Italian opponent, Judge Rosario Salvatore Aitala, was not endorsed. Nevertheless, he won the election, most likely because ‘Italy is a much more powerful country, especially at the time, than Croatia, and was able to cut more deals’ (Misetic, 2023). More thought needs to be put into the landscape of nomination stakeholders, as well as into the nomination process, to create more opportunities for female judges to be nominated and later elected to the ICJ.
Independent Decision-Making: Good or Bad?
Based on the favored trait of region-dependent decision-making, the likelihood that a candidate will make independent decisions and not be sensitive to political factors is a major concern and decision factor during the nomination and election process (Creamer et al., 2017). Being known as a judge with independent opinions or as insensitive to policy considerations is known to reduce the expected vote share of the candidate in the relevant groups and organizations who seem to be looking for judges who do not tend to make independent decisions on their cases (Creamer et al., 2017). In this case, independent decisions refer to judges voting on cases based on their own beliefs, rather than on the standpoint of their home countries. The separation of independent and dependent decision-making in international law has a correlation with fewer women being nominated and later elected to the ICJ. According to psychological research, women typically make more independent legal decisions than men (Just, 2020). However, this does not necessarily have to mean that women disregard the standpoints of the country they are representing. This evidence suggests that women are less likely to be influenced by the other judges on the ICJ who are not only acting as individuals, but also representing different countries with diverging views.
The independence of female judges is evident as they exhibit lower susceptibility to the influence of other judges with opposing opinions. There are two studies relevant to establish this finding. First, Professor Sunstein from Harvard Law School found that in teams of three judges in America, three Republican judges vote one hundred percent according to their party’s beliefs, and the same happens with another team of three Democratic judges (Sunstein, 2006). When the panels do not consist of three judges of the same political views, the outcomes differ slightly by the type of case, but in most cases, the voting pattern of judges changes when they are the political minority on a panel. One Democratic judge working on a team with two Republican judges tends to vote like a Republican judge. The same happens when a Republican judge joins a duo of Democratic judges: the decision of the Republican judge goes more toward the Democratic side. The decisions made by individual judges can therefore be influenced by the other judges on the relevant court (Sunstein, 2006). This evidence underscores the impact of the composition of judicial panels on decision-making processes, demonstrating that judges’ voting patterns can change when they are the political minority on a panel.
Beyond the influence of judges with different beliefs on each other, gender also plays a significant role in court decisions. Jennifer L. Peresie’s research on three-judge federal appellate panels in Title VII Sexual Harassment and Sex Discrimination cases reveals a strong correlation between the composition of the panel and case outcomes. In the 311 examined cases where only male judges were present, plaintiffs, meaning the victims of sexual harassment and/or sex discrimination, won only 17% of the time. However, the addition of one female judge increased the plaintiffs’ success rate to 34%, and with two female judges, it rose to 43% (Peresie, 2005). Female presence influenced both the decisions of Republican and Democratic male judges. For sexual harassment cases, the pro-plaintiff cases increased from 16% to 35%, and for discrimination cases, the number nearly tripled from 11% to 30% (Peresie, 2005). In total, male judges were influenced by the presence of one or two female judges on the panel, whereas the decisions of female judges were not impacted by the presence of one or two male judges. This study was about the rather sensitive topics of sexual harassment and sex discrimination where male judges may be more careful with their judicial reasoning and decision in the presence of women as equal members of the panel. Nevertheless, it is important to note that professionalism dictates that male judges should base their legal reasoning on the merits of the case rather than personal biases. While the addition of female judges to the panel seems to yield positive outcomes, it underscores the importance of diverse perspectives in achieving fair and impartial judgments.
These findings open new doors for the future of law-making as they do not only mean that men are more sensitive to making different decisions when women are involved in the decision-making process, but they also mean that this influence has a positive effect on the outcome of cases. This is, again, a sign to fight for gender parity on judicial courts, such as the ICJ. Now, for the nomination process of the ICJ, this means that women making more independent decisions might not even be undesirable for the countries that they represent. It does not necessarily mean that they put their own beliefs over the ones of their own countries, but it could rather mean that they will not let themselves be influenced by the opinions of judges who come from other countries and therefore represent different principles.
Gender and Court Decisions
The reasons behind the exclusion of female judges advance considerations about the potential impact of gender representation on judicial outcomes and call for further exploration into diversifying judicial benches. In her book, Can Three Women Really Change the Supreme Court?, Dahlia Lithwick raised the question of what significance more women on a court could truly have on court decisions in the context of Elena Kagan being appointed to the United States Supreme Court as the third woman (Lithwick, 2010). Some people might interpret this question in the way that ‘if women do not revolutionize judging or dramatically change outcomes, the achievement of representation and nondiscrimination by their participation does not offer a very compelling reason to mobilize, or even celebrate,’ but one should ask why women need to have a revolutionary influence on court decisions in order to be included and what may justify their exclusion (Kenney, 2013). It is sometimes assumed that when women enter institutions, they are only worthy of staying if they have a positive effect on the performance of said institution. Having no positive effect is automatically seen as having a negative impact on the performance. However, there is also no significant proof demonstrating the positive effect of men on institutional performance, as this is a question that fewer people are considering. Do women absolutely revolutionize judging? Probably not. Can they change how court decisions are made because they offer different views than their male colleagues? Yes, not always, but yes, as seen in the example of 100% of female ICJ judges submitting individual declarations and a separate opinion in the Croatia v. Serbia (1999–2015) ICJ case. Do female judges dramatically change case outcomes of current legal debates? Yes, they do change case outcomes, as seen in the example of sexual harassment and sex discrimination cases in the analysis of Peresie’s research. Judges interpret the law through varied lenses, and it is worth looking more into how decisions may change in the future. Until then, one must first look at how the judge nomination pool for the ICJ is being formed and then think of ways to alter this system.
If the criteria for becoming a judge does not change in any way, then it is likely that elected female judges will have similar views to their male colleagues. This does not have to be true, as it currently is not the case with four women on the court, but it could be the case, and it therefore needs to be considered. If this was because women and men make, on average, similar decisions on all issues, then women voting like men would not be an issue. However, the analysis of sexual harassment and sexual discrimination cases as well as the Croatia v. Serbia (1999–2015) case have shown that this is not true. Gender parity may be achieved with the same nomination process, but the purpose of gender parity would not quite be achieved. Different selection criteria offer the opportunity to lead to judges on the ICJ bench with more diverse opinions and backgrounds than it currently is the case. We do not know what exact influence more female judges can have on ICJ decisions, but we do know that diverse opinions need to be considered and that female judges have the power to change court decisions.
Judge Qualifications
To fully understand the ICJ judge nomination process, it is essential to consider a candidate’s qualifications as a determining factor in nominations. A successful candidate ought to be sufficiently intellectually equipped to fulfill their role. Both female and male judges at the ICJ are experts in international law and have equally earned their positions, which is why ‘a candidate’s level of expertise, education and personal reputation’ are likely to not be critical points of comparison (Creamer et al., 2017). The full educational background of ICJ judges varies, but their degrees are very similar. All judges have their bachelor’s degree. If they studied in a country where a law degree is not a bachelor’s degree, such as in the United States, where it is a Graduate Degree, then they often first studied International Relations or Political Science. Joan E. Donoghue even studied Russian and Biology, which is a unique combination compared to other ICJ judges (President Joan E. Donoghue, n.d.). Every judge achieved their Juris Doctor (J.D.) and often also a Latin Legum Magister (LLM) or a Doctor of Philosophy (PhD). Almost all judges have held professorships at prestigious universities, often in their home countries. All ICJ judges are lawyers and they have held a variety of different legal positions, but most of them had not been judges prior to serving on the ICJ. The educational background of the judges shows that they come from a variety of backgrounds, which, most likely, has a positive impact on court decisions, including a greater number of different experiences and opinions. The professional backgrounds of past elected ICJ judges reveal extensive expertise in the legal field, including various sub-focus areas.
Some experts argue that professors are particularly excellent candidates for serving on the ICJ bench. Vesna Crnić-Grotić, a professor of Law at the University of Rijeka in Croatia, argues that professors of law make excellent candidates ‘... because this is such a specialized field in international law, so in many countries it is really just for the professors to be dealing with these complex international issues that appear at the ICJ’ (Professor Crnić-Grotić, 2023). She was an agent for Croatia at the ICJ at the Convention for the Prevention and Punishment of the Crime of Genocide in Croatia v. Serbia and can therefore offer both expertise from the perspective of a professor as well as of an experienced professional involved with the ICJ (Vesna Crnić-Grotić, n.d.). She also acknowledges that the work of professors is often rather theoretical, suggesting that lawyers and ambassadors with a law degree, particularly specializing in international law, might make better equipped candidates for the ICJ. The takeaway is that there should be a great variety of former professions on the ICJ if they have extensive knowledge in international law affairs (Professor Crnić-Grotić, 2023). However, in some way, the professions are also limited because ‘judges have to know how to apply the law and not only how to achieve a fair outcome’ (Khalifa, 2022). Instead of rethinking the criteria for professions that ICJ judges should be working in or should have worked in, one therefore needs to further investigate how the pool of qualified candidates within these professions can be diversified.
The Path to the ICJ Bench
To further investigate the core barriers and potential avenues for female judges to be considered for ICJ nomination, the anonymous German law professor explained common ‘springboards’ that provide aspiring candidates with required background knowledge and exposure to the national decision-makers. He identifies four key professions serving as common pathways to the ICJ: high-ranking public officials, such as government legal advisors (e.g., Judge Donoghue); permanent representatives at the UN (e.g., Judge Salam); international law professors (e.g., Judge Nolte); or high-ranking judges within their respective national courts (e.g., Judge Bhandari, former Indian Supreme Court Judge).
Given the male dominance in governmental and high-ranking judicial positions within national courts, female candidates may encounter barriers in accessing these essential springboards to the ICJ nomination pool (European judicial systems, 2016; Press release: Women in politics, 2021). Consequently, especially developing countries must actively seek out female candidates who would ‘... formally have the same qualifications as male candidates from other countries, leading to the number of women [with these professional experiences] being very limited’ (Anonymous #2).
However, careers within the UN and academia can serve as effective springboards for female judges. The UN system has made significant strides towards gender balance, achieving nearly equal participation of both female and male delegates (Improvement in the status of women in the United Nations system, 2023). While top-ranking law schools in the United States currently exhibit a lower presence of female law professors, there is a gradual increase in the representation of female law professors across law school in general (Katz, 2023). This upward trajectory suggests that careers in academia could increasingly provide realistic springboards for female judges to enter the ICJ nomination pool.
The Relevance of Political Involvement in Judicial Nominations
An additional selection criterion—the role of interstate politics—creates another barrier to the successful nomination of women. The combination of political involvement and walking on or towards one or more of the four mentioned springboards can give candidates an even greater competitive advantage. However, preferring judges who not only make judicial decisions based on politics, but who are also heavily involved in them, excludes many potential female candidates because they tend to be less involved in interstate politics. Judges ought to be deeply connected to the political landscape in their home country (Creamer et al., 2017). 74.5% of members of global national parliaments are men and only 25.5% are women. Even though these percentages do not entirely represent the share of female and male judges involved in politics, they show that women are overwhelmingly less represented in high government positions, implying that the percentage of female judges in politics is lower than the one of male judges (Press release: Women in politics, 2021). The lack of political involvement of female judges lowers their chances of being nominated by a national group. Even the four women who have been elected to the ICJ do not show as much political involvement compared to their male colleagues. Xue Hanqin held governmental positions in the field of international relations (Judge Xue Hanqin, n.d.). Joan E. Donoghue held a variety of political positions, such as a legal advisory position in international law for U.S. president Obama (President Joan E. Donoghue, n.d.). Specifically, Joan E. Donoghue was therefore largely involved with politics in her home country, while Xue Hanqin worked on a more international scale. Hilary Charlesworth was not involved in politics before her appointment to the ICJ (Judge Hilary Charlesworth, n.d.). Similarly, Julia Sebutinde did not fulfill political roles in her home country (Judge Julia Sebutinde, n.d.). Both were elected in later years than Judge Hanqin and President Donoghue. Politics cannot be ignored in the domestic nomination process as the ICJ needs to allow for a variety of geographical origins and political affiliations to make well-balanced decisions on its cases. However, this political nomination process is currently constructed in a way that largely prevents women from being nominated and later elected.
An area of improvement could be to define multiple backgrounds that can make a respected judge on the ICJ. Having been involved in interstate politics can be one of them, but it certainly should not be the focus. The two latest female judges elected to the ICJ do not show a history of political involvement. This marks a step toward considering political involvement less intensively, but, proactively, more qualities that make a good judge on the ICJ should be defined to allow for greater representation of women throughout the election process.
Expertise versus Politics
It could also be possible that the true driver of political involvement was the inclusion in and familiarity with the political elite who ends up being the decision-making group during the nomination process. Judge Samba from the ICC offered her point of view. She is from Sierra Leone and joined the ICC bench on March 11th, 2021. Beforehand, she held high judicial positions in her home country, including serving as Justice of the Supreme Court of Sierra Leone in 2021 and Judge of the High Court from 2015 to 2019 (Judge Miatta Maria Samba, n.d.). Samba explained that she did not feel like she had to be politically involved to be nominated and later elected. Rather, she was chosen based on her merits, based on the work that she did at the national level in Sierra Leone, especially having prosecuted in a national court. She was ‘known as an expert in criminal law in Sierra Leone and therefore equipped to serve on the court’ (Judge Samba, 2023). Similarly, Judge Alapini-Gansou from the ICC ‘… worked hard in a judicial way and I am [she is] an expert in what I [she] applied for [ICC], but without being a member of a political party, it is important that a candidate is well-known by the political actors in their home country’ (Judge Alapini-Gansou, 2023). She therefore suggests that political involvement is a helpful recognition enhancement, but that the true key to a successful nomination is being a well-known expert in international law. Being an international judge is a position that requires technical knowledge, suggesting that the best judges cannot be an expert in international law and a politician at the same time (Anonymous #2, 2023). Nathalia Contreras builds upon this thought, saying that ‘the judges still need political skills. If you [they] want to get to an international body, you [they] have to be known by the politicians. They might not have to be politicians themselves, but they should be connected in their home country, or even in their region [defined by the Statute of the ICJ]’ (Contreras-Pardo, 2022). Aligned with this reasoning, prioritizing the advancement of female experts into roles where they can gain judicial expertise and recognition holds the potential to enhance female representation in the ICJ nomination pool, addressing the existing disparity between female and male ICJ candidates.
Interlocking Factors Contributing to Female Underrepresentation
The focus on geographical representation, the underrepresentation of women in key roles during the nomination process, along with the preference for qualities typically linked to male-dominated professions all mutually reinforce one another. The status quo in some of the regional groups, such as Africa and Asia, leads to fewer women entering the field of law or politics. For example, Saudi Arabia allowed women to practice law only in the year 2013 (Zoepf, 2016). These preexisting conditions then lead to fewer women being at the top of the legal and political landscape, becoming members of high-ranked law school faculty, and being appointed to the highest court of the individual countries. These male-dominated entities are consulted by the national groups who determine the qualities that a future judge on the ICJ should have. The promoted ideal qualities, such as involvement in politics and political decision-making, then start the cycle again by providing an example of what the ideal legal practitioners look like. This encourages the support for aspiring judges who align with this stereotype, predominantly consisting of male candidates.
The seemingly never-ending cycle can be broken with measures to promote gender parity, which is a unique problem to tackle because allowing for the voices of both genders to be heard increases the credibility of the ICJ and leads to well-balanced decision-making. It is difficult to change whether more women than currently are making it to the nomination and election decisions, partly because the work of the nominating groups is non-transparent and partly because gender diversity in high government positions, law school faculties, and the highest national courts worldwide are all separate topics that would need to be individually explored and largely depend on individual countries. Nevertheless, there is room for modification in the nomination and election process for ICJ judges.
Nudging Gender Parity
Experts agree that changes to the nomination process need to be made and that advocacy for gender parity for the domestic nomination process is important. The most crucial change to be made is that the UN needs to communicate to the political actors on the national and international level that gender parity must be achieved. One way to do so could be ‘for electing bodies, such as the General Assembly and the Security Council to say that they will only elect a state party if they nominate at least one female candidate’ (Judge Alapini-Gansou, 2023). This has been done before by other courts, such as the African Court of Human and People’s Rights, to achieve gender parity. Another example is the Parliamentary Assembly of the Council of Europe rejecting Malta’s all-male candidate list when at least one female candidate was required (Anonymous #2, 2023). The Parliamentary Assembly of the Council of Europe limited the power of domestic national elites and made clear demands about what the list of candidates should look like. This is a productive way to create a more diverse pool of candidates because countries who might truly not have a qualified female candidate are then inclined to invest in more opportunities to help women climb up the judicial ladder. Judge Alapini-Gansou makes it very clear that ‘we need to keep gender parity in mind and make them [the nominating and electing parties] realize that it is the time of women now’ (Judge Alapini-Gansou, 2023).
The fastest, but also the most aggressive measure to ensure gender parity would be a requirement to include at least seven women on the ICJ bench. Such a quota would be effective immediately at the next judge elections and it would be the fastest and the most guaranteed way to achieve an almost equal number of female and male judges on the court. This quota would keep geographical representation in the focus during the election process and it could eliminate the consequences of having predominantly male groups select the judges because there would be a limited number of male judges who could be chosen. However, individuals should not be denied their seat based on their gender and a gender quota might therefore not be the right choice of action. What is truly needed in the nomination process to the ICJ are nudges to naturally achieve gender parity. With a quota, gender parity would be achieved through a shortcut and not through rethinking and rebuilding the nomination process as part of the election process. A quota also ‘stigmatizes the marginalized people that you [one] are [is] seeking to bring in and destigmatize because to some it might seem like they [female judges] are having spots reserved for them’ (Anonymous #1, 2022). It is also difficult to say at which exact number a quota should lie if it were to be implemented or if there should only be a minimum number of female judges, which shows that there are too many uncertainties surrounding a gender quota. Overall, a forced gender quota on the ICJ would be a very abrupt intervention and it is unlikely to be put into place. Instead of imposing a quota on the judicial bench directly, a quota ‘at the beginning of the nomination process with a minimum requirement of female and male nominees makes sense because it might otherwise influence election results too much’ (Professor Crnić-Grotić, 2023). Gender parity and electing the most qualified ICJ judges should not be mutually exclusive. This can be achieved by strictly diversifying the nomination pool from the start of the judge selection process.
Gender Parity at the ICC
Within the ICC, the pursuit of gender parity is not only a central topic of discussion but, more importantly, a focal point of action. This underscores the ICC’s commitment to gender equity on its bench. The ICC has not only set the goal of achieving gender parity but also implemented specific measures to actualize it, setting an exceptional standard for international courts. Judge Alapini-Gansou describes gender parity as ‘a normal process’ and ‘we [the ICC] cannot say that this success story about gender parity within the ICC is coming from nowhere. It was hard work by all the stakeholders, saying that we [the ICC] need more women at every stage of the election process’ (Judge Alapini-Gansou, 2023). She mentions that the court opened a gender committee to work toward preserving gender parity at the ICC through written statements and specific plans to achieve and maintain gender parity.
The term of six male judges will terminate next, which means that there will be six seats to be filled at the next election. The current nine female judges will stay on the bench until their terms are fulfilled. Judge Samba argues that there will most likely be a female domination of the ICC after the next election if even only one new female judge will be elected. Therefore, ‘there might not be gender parity as time progresses,’ but in future election rounds this phenomenon will balance out so that gender parity persists and neither gender outnumbers the other one on the ICC bench (Judge Samba, 2023). Considering future elections, the ICC’s gender committee’s efforts towards upholding gender parity hold significant importance. As subsequent elections unfold, on average, the domination of either gender is unlikely, and a balance is to be expected. This would ensure the continuity of gender parity on the ICC bench.
Changing the Legal Language
To naturally achieve gender parity at the ICJ, an additional statement in Section 9 of the ICJ Statute could be included to advocate for the nomination and subsequent election of additional female judges. Such a statement might not seem powerful enough at first, but the ICC successfully achieving gender parity proves otherwise. The court achieved gender parity in 2018. The language of the Rome Statute for the ICC, practically the equivalent to the Statute of the ICJ, clearly states that ‘the states parties shall, in the selection of judges, take into account the need, within the membership of the Court for a fair representation of female and male judges’ (United Nations Diplomatic Conference, 1998). The Rome Statute outlines two additional requirements for the nomination and election of judges: accurately representing the principal legal systems of the world as well as ensuring geographical representation. These two requirements closely mirror those articulated in the Statute of the ICJ. The phrasing of the Rome Statute 1998 Article 36(8a) does not suggest a fixed quota for judge elections, but it makes gender parity an official goal of the court. This is something that the ICJ is missing in its Statute. The ICC consists of 18 judges on nine-year terms with nine female and nine male judges on the court. For comparison and as a reminder, the ICJ consists of 15 judges, four of them currently being women. In recent years, the ICC has published statements on gender parity and took part in gender parity efforts of other organizations. Without having to force gender parity, the ICC achieved their goal through showing the benefits of gender parity and creating more opportunities for female judges, one of them being a greater likelihood of being nominated and later elected to the ICC. This is not a one-time effort, but a long-term commitment to ensuring continuous gender parity on international courts. The ICC did not need a forced gender quota for judges on the court to achieve gender parity. For some, statements about the importance of including women in major decision-making processes might almost seem too easy to be the solution to gender issues. However, it worked for this international court, and it can work again. Words may not immediately promote the desired movement toward gender parity, but words will create personal beliefs and values in decision-makers who may then change their behavior. The question remains why the ICJ has not used words in the same way.
[Note: This section was finalized prior to the 2023 ICC election. As of March 2024, there are eleven female judges and seven male judges on the ICC (Current Judges, n.d.).]
Persisting Challenges to Gender Parity at the ICJ
Although the ICC sets an example of how gender parity can be achieved at an international court, the same exact strategy may not be successful at the ICJ due to the differences between the two courts. The ICC and the ICJ are two different international courts not only in the sense that they handle different kinds of legal issues and prosecute individuals rather than settling disputes between states, but also in the sense that their nomination processes are different. Currently, two primary differences between the ICC and ICJ hinder the ICJ from directly adopting the ICC’s strategies to achieve gender parity, emphasizing the importance of thoughtful deliberation when crafting gender parity solutions.
The first difference is that the ICC formalizes in its statute that achieving gender parity is a necessity for elections. Furthermore, the ICC requires their nomination groups, the Assembly of States Parties, to justify their nomination choice. The ICJ lacks such formal mandates. Even though the Assembly of State Parties can only nominate one candidate, justifying their opinion helps nominate qualified judges, no matter their gender (Electing the best ICC & ASP leaders, n.d.). The State Parties write a detailed note on how their candidate fulfills the judicial requirements to be on the court. These requirements are very similar to the ones of the ICJ, such as candidates being of high moral character and having relevant experience in international law. However, the difference is that the States Parties are also asked to justify their decision regarding the Statute’s Article 36(8a) (iii), which argues for the fair representation of women and men on the court (United Nations Diplomatic Conference, 1998; The Prosecutor and the Deputy Prosecutors, n.d.). The positive effect of this can be proven with the fact that the representatives of the States Parties at the ICC (from African States, Asia-Pacific States, Eastern European States, Latin American and Caribbean States as well as from Western European and other States) are proposed by the Head of State or the Minister of Foreign Affairs of the individual countries (ICC, n.d.; The States Parties, n.d.). These two positions are predominantly filled by men. However, this did not turn out to be a barrier to gender parity on the ICC, which suggests that the same could be true for the male-dominated decision-making groups of ICJ nominations. Again, the goal is to change how nomination decisions are made and justified. It is a must to pay more attention to gender parity at the ICJ as gender homogenous court benches only offer limited perspectives on relevant issues. The gender parity success story of the ICC suggests that there might not even need to be any big changes in the composition of the national groups, but that having nominators thoroughly explain their choices can lead to a well-balanced court while still choosing the most qualified candidates.
Judge Re-elections at the ICJ
The second relevant difference between the ICC and ICJ lies in the renewable terms at the ICJ. ICC judges have non-renewable nine-year terms. This is likely a reason for the slow gender parity movement at the ICJ. Members who have performed well during their terms are likely to be re-elected. Most of the members, especially before 2010, are men, meaning that not only new male judges are elected, but former judges are also re-elected. Since 1995, 19 judges were re-elected, and 17 judges were not re-elected. Since 2010, four out of five judges were re-elected, not counting James Richard Crawford, who passed away before his term ended, and newly elected judges since 2015, because their first term has not ended yet (Chesterman, 2021). Achieving gender parity, especially at a faster rate, is more realistic without the option to re-elect judges.
Among the interviewed experts, there is consensus that re-elections not only slow down the gender parity process, but that they also do not leave enough room for new talents in general, no matter the gender. A recent example was the candidacy of Professor Maja Seršić from Croatia. Peter Tomka, a current ICJ judge from Slovakia, has been occupying one of the two Eastern European seats on the bench for about 20 years. This made him the rival of the new candidate Maja Seršić. ‘Peter Tomka is an excellent judge, and he has been on the bench for a long time, she could only lose’ (Anonymous #2, 2023). This suggests that ‘his [Peter Tomka’s] connections and his reputation were two things too strong to beat for Maja Seršić’ (Professor Crnić-Grotić, 2023). Without re-elections, the two Eastern European seats could have been occupied by new judges, offering a more diverse range of opinions over the years. Judge Samba agrees, saying that after her nine-year term she feels that it is right to give the seat to ‘younger and more vibrant judges’ instead of having re-elections as an option. She also raises an important point of taking back her newly acquired knowledge to her home country and further helping in her judiciary as a way of giving back to the country that trusted her with representing it on the ICC (Judge Samba, 2023). Similarly, Judge Alapini-Gansou argues that seats on the ICC bench should be ‘left for the next generation’ (Judge Alapini-Gansou, 2023). Striking a balance between a diverse constellation of court benches by allowing new candidates to become judges on international courts, while also recognizing the acquired wisdom of long-serving judges, therefore remains a crucial consideration for international courts.
There is value both in denying re-elections, but also in having experienced judges on the court for a longer time than their initial terms. Luka Misetic agrees that ‘being able to run again limits the number of opportunities’ for female judges to be elected, but generally speaking, he is not in favor of term limits because, in his experience, it is hard to find high-quality judges for international courts, male or female, that he wants to see continue being on the bench, ‘because many of them have little or no experience trialing cases’ (Misetic, 2023). He argues that a large percentage of potential candidates are not used to ‘running trials efficiently to reach the right decisions quickly.’ While this is a valid point, there is also a balance to be struck between having judges with a lot of experience and ‘also having judges that have a fresh perspective to make sure that the law is evolving as it should as society changes. As women, we can bring this different perspective’ (Khalifa, 2022). Even if a popular and highly knowledgeable Judge, such as Peter Tomka, does remarkable work at the ICJ, the overall population is not well represented as time goes on because the diversity on the ICJ bench is also influenced by different generations of thinkers bringing different experiences to the decision-making processes.
To address the issue of re-elections, the European Court of Human Rights decided to allow no re-elections. The reasoning, however, uncovers that there was not only a lack of gender parity at the court due to repeated re-elections, but ‘candidates were actually found to not be independent anymore because they want to please their country to be nominated again’ (Professor Crnić-Grotić, 2023). Countries may not prefer independent judges, but, in the eyes of the European Court of Human Rights, being an independent thinker is a preferred quality of a judge. Professor Crnić-Grotić further explained that judges who make ‘too independent’ court decisions have low chances of re-elections. She mentions that this inclines judges to vote in a way so that their government will support their re-election, leading to ‘the re-election possibility actually playing a role in the quality of [court] decisions,’ and potentially granting the respective countries an advantage during judgments. Having identified the reasons for why the ICJ could benefit from terminating any form of re-elections, it is now worth summarizing which exact changes can be made to the nomination and election processes of ICJ judges to then evaluate which modifications can be put into place.
Action Items to Achieve Gender Parity
I believe that geographical representation and gender parity should be the primary concern during the election process of ICJ judges. As previously discussed, the geographical representation is given by having no more than one judge from a country serve on the court. Geographical representation ensures national diversity and, in some cases, also racial and religious diversity on the ICJ, which is why it needs to be kept as a selection criterion. Still, solely geographical representation does not lead to gender parity on the court, which is why new selection criteria need to be added that can be combined with geographical diversity. Gender parity should not be forced but could be promoted through the following suggested three changes in the overall election process. First, eliminating the opportunity to be re-elected could increase the pace at which gender parity is being achieved at the ICJ. A greater frequency of new judges on the court gives a greater number of qualified candidates the chance to be elected, many of whom could be female judges. Second, new language in the Statute of the ICJ is essential to communicate the importance and the responsibility of national groups to include gender parity considerations when making their nomination decisions. Like the ICC, the third change that the ICJ would benefit from is continuously participating in the conversation on gender balance in international law and publicizing their goal for gender parity regularly. Adding a section to the Statute on gender parity and publishing written statements about the goal of the ICJ to reach gender parity are high-impact options to work towards achieving gender parity on the ICJ bench.
Feasibility of ICJ Statute Adjustments
Having identified core inhibitors of gender parity in the ICJ, one must realistically evaluate how feasible significant changes made to the Statute of the ICJ would be. Three interviewed experts commented on this analysis and concluded that making formal changes to the Statute of the ICJ is not an option. ‘Big countries realize the power of having a judge on the bench,’ so they are likely to be against nomination quotas, as they might not see any of their potentially qualified female nominees as successful candidates, and against the elimination of re-elections because it increases their chances of losing their current seat on the ICJ bench quicker than they might do now (Professor Crnić-Grotić, 2023). ‘There is no chance to amend the Statute of the ICJ because it is very formalistic. It would be like changing the Charter of the UN. It will not happen,’ mainly because there would need to be a ⅔ majority within the General Assembly and Security Council, including the five permanent members voting for the changes to the Statute of the ICJ. ‘You would open a Pandora's Box’ and many other change requests to the ICJ Statute could come up (Anonymous #2, 2023).
On the related issue of judge criteria rather being tailored towards traits seen in male judges based on their prior professions, Contreras-Pardo says that ‘the ideal[istic] person in me [her] says that we should change the criteria after which judges are nominated, so that it is written down and it has the force of the law. However, the process to reform the ICJ Statute is complex, and it is more efficient through interpretation. We need to make sure that it is interpreted according to the current times’ (Contreras-Pardo, 2022). Formal changes to the ICJ Statute might not be an option unless the UN would strictly agree that there will only be changes made to sections whose improvement could lead to gender parity. This may not lie in the interest of most countries, leading to no formal changes being made in the next few years. However, regional groups can make informal political agreements to increase the pressure amongst each other to work towards gender parity on the ICJ bench.
Representation Beyond Gender Parity
The suggestions for changes that could be made to the nomination and election process of ICJ judges were created with the goal to have an almost equal number of women and men on the bench of the court. However, this is only one step toward the accurate representation of human society at the ICJ. Even within the two groups of female and male judges there is more diversity needed in the future. For example, an increased number of female judges should not only mean more white women on the court, but women from diverse racial backgrounds. Additionally, splitting the world’s population into the female and male genders leaves out the representation of other genders, such as transgender and genderqueer, as well as people with different sexual orientations in the LGBTQIA+ community. Enhancing awareness of diverse identities is important because it fosters inclusion of varied backgrounds and life experiences that can significantly shape case outcomes. Diversifying the bench of the ICJ could promote constructive critique among judges, potentially leading to even more comprehensive decisions.
Nevertheless, achieving gender parity between the female and male gender on the ICJ makes sense as the first step to represent the world’s population more accurately because there is a great number of qualified women that can be nominated. There is no exclusive proof that starting out with more female judges on the court is the best first step toward a more diverse bench, but it is a step. The ongoing struggle for female representation reflects the need for additional time to incorporate genders beyond the binary and individuals with diverse sexual orientations, considering their persistent underrepresentation in the pool of potential ICJ candidates.
Recent Developments
The most recent ICJ elections, held in November 2023, resulted in the appointment of five judges to the court. As of February 6, 2024, the composition of the ICJ remains unchanged, with four female judges out of a total of 15 judges. Former ICJ President Judge Joan Donoghue’s term concluded, and she has been succeeded by Judge Sarah H. Cleveland from the United States of America (Current Members, n.d.). Three new male judges were elected, filling vacancies left by their three male predecessors, while Judge Hilary Charlesworth from Australia was re-elected (Five judges elected, 2023).
This election marked a departure from previous trends in terms of the number of re-elections, but there was no change in the number of female judges on the ICJ bench. Despite the reduction in overall re-elections compared to the 2020 election, where four out of five judges were re-elected, the potential negative impact of re-elections on achieving a diverse bench remains significant (Security Council Elects 5 Judges, 2020). Eliminating re-elections could also offer a chance for a broader representation of countries over time, thus mitigating the concentration of power in certain nations.
[Note: This section was added after finalizing the article to incorporate the latest information regarding the 2023 ICJ elections. While the article primarily reflects data preceding November 2023, the conclusions remain relevant given the sustained lack of increase in female representation on the ICJ bench.]
Conclusion
The ICJ stands as a beacon of justice that gives nations hope for global peace. The court’s decisions influence the trajectories of nations and protect citizens’ human rights. Yet, the absence of gender parity on its bench casts a shadow upon the very principles of equality and fairness it strives to uphold. It is imperative that achieving gender parity on the ICJ becomes a primary goal of the court during the next election cycle.
While diversity is important, pursuing it should not keep the court from appointing the most qualified judges. In my opinion, there should be long-term efforts to increase the number of qualified female judges, but also to allow more genders and individuals with various sexual orientations to enter the legal field through university scholarships and other educational opportunities. It is difficult to say when these efforts would create successful outcomes, but, in the long run, they will change the landscape of global leaders in law, which is necessary to ensure the most diverse and, at the same time, qualified bench of the ICJ. Gender parity would not only be a milestone for female judges; it can be a catalyst for amplifying the voices of several underrepresented identities. By achieving gender parity, we will take the first step toward a more inclusive bench, paving the way for greater diversity in the future.
ICJ court cases are not only about which country wins or loses, but the importance often lies in the content of the decisions. The current lack of diversity within the ICJ bench hinders its ability to deliver fully nuanced judgments. Embracing representation across various identities – gender, sexual orientation, geography, race, and religion – not only enriches case outcomes but enhances the court’s legitimacy in the eyes of the public affected by its decisions.
Nevertheless, there is hope for gender parity in the future. Rather than overhauling the stakeholders in the nomination and election process, the focus should be on tangible actions to achieve gender parity. In parallel with the ICC, the ICJ should actively engage in discussions on gender parity, consistently reaffirming its commitment to fostering a diverse bench through both written and public statements. If gender parity remains unattained after the next two election cycles, by 2029, I propose the implementation of term limits that eliminate re-elections, thus preventing judges from serving consecutive terms on the bench. This approach not only expands the pool of potential candidates, many of whom could be female judges, but also ensures that no countries maintain automatic prolonged representation on the ICJ bench.
Ultimately, international cooperation is essential to enact these changes. Enhanced diversity on the ICJ can serve as a model for the composition of legal decision-making bodies, ensuring judgments rooted in the law, crafted by judges with varied cultural perspectives and professional backgrounds. Over time, the representation of diversity within the legal field can extend its positive influence on other legal institutions and international as well as national courts to further inspire a collective drive for unity in the global pursuit of peace during conflict.
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