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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Feminist Approaches to International Adjudication

Nienke Grossman

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 16 June 2024

Access to justice — Gender — Women, rights — Rape and sexual violence

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

Feminist approaches to international adjudication, like feminist approaches to international law, are rooted in feminist theories and methods. (Feminism, Approach to International Law). Feminist legal theories seek to understand the impact of existing structures, norms, and institutions on women in order to eliminate their disparate status in society and achieve equality. While there are many strands of feminism, those of particular prominence in Western jurisprudence include liberal, radical, cultural, and post-modern feminisms. While liberal feminism is grounded in Western liberal universalist ideals of individualism and autonomy, cultural or relational feminism emphasizes the need to recognize the differences between men and women’s lived experiences (West, 2019, 5–20). Radical feminism is focused on eliminating patriarchy and structural domination of women by men and roots inequality in sex and politics, while post-modern feminisms highlight the differences among women, with an emphasis on intersectionality (Charlesworth and Chinkin, 2000, 38–48); Radacic, 2008, Feminism and Human Rights, 264–70).

Feminist approaches to international law began to achieve prominence in international legal scholarship in the early 1990s, with the publication of Hilary Charlesworth, Christine Chinkin, and Shelley Wright’s ‘Feminist Approaches to International Law’ in the American Journal of International Law, although international feminist activism and international community action—in the form of conferences, treaties, and declarations on women’s equality—far predate the 1990s (Charlesworth and Chinkin, 2000, 14–6). Feminist approaches to international adjudication have increased and evolved alongside growing feminist scholarship in international law more generally and the proliferation of international adjudicative bodies in the last twenty-five years.

Feminist scholars and activists have described, identified, developed, and applied feminist methodologies in the context of international law and international courts. Feminist methodologies typically utilize gender and sex as essential categories of analysis (Charlesworth, 1999, 379, 393). While ‘sex’ generally refers to biological differences between males and females, ‘gender’ is concerned with socially constructed qualities attributed to men and women. Utilizing these categories permits feminists to ‘ask the woman question,’ that is, to consider the disparate impact of law, procedure, and institutions on women (Bartlett, 1990, 837–43; Krivenko, 2017, 962).

The categories of gender and sex are, however, subjects of feminist analysis and deconstruction. For example, Third World, lesbian, post-colonial, and critical race feminists argue that these categories are premised on essentialist claims of a uniform set of women’s characteristics and concerns that inadequately take into account the unique experiences and perspectives of women oppressed on the basis of race, poverty, rural location, colonialism, class, sexuality, disability, or other intersectional identities or characteristics. These critiques have resulted in attempts to incorporate the diversity of women’s experiences into feminist theory and activism, while still advocating for the use of sex and gender analysis as valuable tools for understanding and improving society, as well as efforts to use feminist analysis to shed light on the rights, interests, and concerns of a broad range of oppressed groups (Bartlett, 1990, 835, 848–49). Judith Butler and queer theorists, however, have queried the extent to which gender and sex are stable and fixed categories at all and whether feminist analyses premised on these categories may ultimately reinforce marginalization and exclusion (Butler, 1999, xi; Otto, 2006, 106–7).

Feminist methodology is also frequently characterized by a persistent questioning of the objectivity of international law and the desire to bring to light hidden biases and assumptions in norms and institutions. For example, feminist methodologies seek to identify and deconstruct dichotomies with gendered assumptions and consequences, such as public/private, domestic/international, and procedure/substance, as well as engaging in multicultural and transboundary dialogue which recognizes the complexities of womanhood across boundaries of race, class, geography, and sexuality (Charlesworth, 1999, 381–85). Context-specific analysis, situated analysis, and feminist standpoint epistemology generally focus on the individual experiences of women in their own environments to unmask biases and silences in abstract descriptions of law and fact (Krivenko, 2017, 961, 971).

Feminist approaches to rectifying subordination, or feminist strategies, vary according to the feminist lens or lenses utilized. For example, liberal institutionalist feminists have focused on extending and enforcing existing law to cover concerns unique to women (Engle, 2005, 51–52). On the other hand, structural bias feminists, who understand existing international law and institutions as inherently biased against women, have advocated for deeper changes to existing regimes and the purported foundations of international law doctrine, such as obviating the public/private distinction to allow international human rights law to apply to violence against women perpetrated in the private sphere (Engle, 2005, 52–53). A similar debate on feminist strategy exists in the realm of international adjudication concerning whether feminist goals can be reached through the existing norms, institutions, and structures of international adjudication, or whether deeper, more structural change is necessary. A related question is whether international adjudicative bodies are an effective locus for rectifying the subordination of women.

Feminist approaches have been brought to bear in international adjudication in at least three areas, to varying degrees and with varying impacts. First, scholars and activists have critiqued the domination of international adjudicative bodies by male decision-makers, as well as the process by which they are selected. Second, they have evaluated and sought to influence internal adjudicative processes, specifically in international criminal courts and tribunals. Third, they have lauded and criticized outcomes produced by international adjudicative bodies. In some instances, feminists have rejected international courts altogether in favour of quasi-adjudicative bodies consciously separated from state power. Much feminist scholarship and advocacy has focused on international adjudication involving international criminal law and human rights, although in recent years the application of feminist methods to international adjudication in other subject areas appears to be growing.

B.  Feminist Approaches to International Adjudication: Decision-Makers

1.  Gender Balance among Adjudicators

One locus of feminist inquiry in international adjudication is the extent to which decision-making in international adjudication is dominated by men (Gender balance in international adjudicatory bodies). Academics, international institutions, and non-governmental organizations (‘NGOs’) in recent years have gathered data on the percentage of female adjudicators on various international adjudicative bodies. One study, conducted in mid-2015, showed that on twelve international courts and tribunals of global and regional reach and with varying subject-matter jurisdiction, nine had 20 per cent or fewer women judges (Grossman, 2016, 224). In early 2019, women made up three of fifteen judges on the International Court of Justice ('ICJ'), six of eighteen judges on the International Criminal Court, three of twenty-one members of the International Tribunal for the Law of the Sea, fifteen of forty-six judges on the European Court of Human Rights ('ECtHR'), six of eleven judges on the African Court on Human and Peoples’ Rights (ACtHPR), and one of six judges on the Inter-American Court of Human Rights (IACtHR). One of three members of the Appellate Body of the Dispute Settlement Body of the World Trade Organization in early 2019 was a woman. Four of seven members of the United Nations ('UN') Dispute Tribunal and three of six members of the UN Administrative Tribunal were women in early 2019.

The UN human rights treaty bodies, which are quasi-adjudicative in nature (Quasi-judicial body), have also been criticized for membership which does not reflect the general population in terms of sex, although the numbers have fluctuated over time. For example, only two women served on the fourteen member Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), and six women served on the eighteen member Committee on the Rights of Persons with Disabilities (CRPD) in mid-2019.

10  Neither does gender balance exist in international arbitration. A study of arbitrators attending the Biennial Congress of the International Council for Commercial Arbitration in 2014 showed that only 17.6 per cent of arbitrators were women (Franck, 2015, 452). In 2016, women accounted for 14 per cent of arbitrators in the Milan Chamber of Arbitration. In 2017, women accounted for 16.7 per cent of all appointments and confirmations on tribunals under the rules of the International Chamber of Commerce, and 23 per cent of arbitrator appointments in the London Court of International Arbitration (LCIA) were women in 2018. 18 per cent of appointments went to women in the Stockholm Chamber of Commerce in 2017. In 2018, 34 per cent of the arbitrators appointed by the Singapore International Arbitration Centre (SIAC) were women, while 18.2 per cent of its Court of Arbitration were women.

11  In 2017, women accounted for only 14 per cent of first-time appointees to International Centre for Settlement of Investment Disputes (ICSID) tribunals or ad hoc committees, and for 14 per cent of the total number of appointments in 2017 (ICSID Annual Report, 2017, 35). While ICSID and respondent states jointly, and the parties involved in the arbitration jointly, appointed female arbitrators, investors/claimants and co-arbitrators made no appointments of female arbitrators (ICSID Annual Report, 2017, 35). Between 1966 and 2017, women accounted for only 9 per cent of 2,200 arbitrator appointments in ICSID (Kinnear and Babiak, 2018).

12  Although the percentage of women has increased on several specific adjudicative and quasi-adjudicative bodies over time, it has decreased on others, and men continue to be overrepresented on most of them (Grossman, 2016, 226–31). While empirical research on the percentage of women in decision-making capacities has grown in recent years, significantly less data is available on the percentage of women in other capacities involving international adjudicative bodies, such as advocates and staff. One study of contentious proceedings between 1999 and 2013 in the International Court of Justice (ICJ), by Cecily Rose and Shashank Kumar showed that only twenty-three female lawyers accounted for less than 8 per cent of the total speaking time for all oral arguments (2014, at 904). Of the ICJ bar, or repeat lawyers practicing before the ICJ, women accounted for only 2.9 per cent of the total speaking time (Rose and Kumar, 2014, 904). In addition, some have argued for broadening and deepening existing research on women in adjudication. For example, rather than focusing exclusively on numbers, some scholars seek a better understanding of who these women are, as well as an assessment of their experiences and contributions. How do women with multiple, overlapping identities experience service on the international bench and what unique challenges do they face? New scholarship delves into the experiences of African women judges on international courts, as well as women serving in arbitrator roles (Polonskaya, 2018, 259; Dawuni, 2017, 2). Overall, more data is needed to better understand women’s participation in other capacities on international courts.

2.  Theoretical Justifications and Debates Around Gender Balance

13  Feminist scholars and activists have proposed that the paucity or absence of women from international adjudicative bodies is problematic for a number of reasons (Grossman, 2012, 652). First, unrepresentative benches reflect the continued domination of international adjudicative bodies, like other international legal and law-making institutions, by men. To the extent that men and women differ in their approaches to judging, overrepresentation of one group may result in differences in procedure and biased decision-making. Empirical studies of gender effects of judging at the international level are rare due to low numbers of women on international court benches historically. Nonetheless, one study of sentencing practices on the International Criminal Tribunal for the Former Yugoslavia (ICTY) showed judicial panels with women imposed more severe sanctions on defendants who assaulted women, while men imposed more severe sanctions on defendants who assaulted men (Greening and King, 2007, 1064–66). A recent study of judgments of the ECtHR found that female judges were more favourably disposed towards discrimination cases filed by women than male judges, and towards male and female litigants alleging physical integrity rights violations, such as torture (Voeten, 2019). Another study of the ICJ, which has had a total of four female permanent judges and four ad hoc judges, found female judges did not produce more separate or dissenting opinions than their male colleagues (Krivenko, 2019).

14  Anecdotally, individual judges have suggested that gender may make a difference to both the process and outcomes of international adjudicative bodies. For example, former ICTY Judge Patricia Wald posited that if a judge suffered discrimination as a woman in her life, she may be more sensitive to expressions of discrimination and paternalism (Wald, 2009). ICJ and former Special Court for Sierra Leone (SCSL) Judge Julia Sebutinde asserted that her gender impacted the way she interacted with attorneys aggressively questioning a grandmother gang-raped during the armed conflict in Sierra Leone (Grossman, 2017, 43). Judge Cecilia Medina Quiroga suggested that her presence made a difference in the elicitation of facts concerning reparations in a Guatemalan massacre and rape case before the Inter-American Court of Human Rights (Terris, Romano, and Swigart, 2007, 180–90).

15  Another justification for gender balance is that the underrepresentation of women may also affect sociological legitimacy, or perceptions of these bodies’ justified authority, to the extent that stakeholders believe processes and outcomes are biased (Grossman, 2012, 652). Sociological legitimacy may also be affected when adjudicators as a group do not reflect those affected by judgments rendered, also closely related to democratic values. Those traditionally excluded from judicial processes may perceive processes and outcomes as less worthy of respect or biased against them when they do not see themselves represented in a meaningful way (Grossman, 2012, 664). Scholars have also justified gender balance on international court benches by reference to democratic values such as representativeness. (Grossman, 2012, 668–69).

16  Feminist scholars and advocates have also argued that the failure to nominate and elect both male and female judges in significant numbers violates states’ international legal obligations. Article 8 UN Charter (1945), states that the UN ‘shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.’ Furthermore, Articles 3 and 25 International Covenant on Civil and Political Rights (1976) require States Parties to ‘undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights’ including the right and opportunity to take part in the conduct of public affairs and to have access ‘on general terms of equality’ to public service. The Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights (1998) (‘Protocol to the African Charter’) also requires states to consider sex in judicial selection (Arts 12, 14). UN Security Council Resolution 1329 imposes similar requirements with respect to the International Criminal Tribunals for the Former Yugoslavia and Rwanda for ad litem judges. The Convention on the Elimination of All Forms of Discrimination Against Women (1981) (‘CEDAW’), too, requires states to take steps to ensure the right to participation of women at all levels of governance, ‘on equal terms with men and without any discrimination and the opportunity to represent their Governments at the international level and to participate in the work of international organizations’ (Art 8). Other soft law instruments provide similar obligations.

17  Debate exists concerning which justifications for gender balance are most compelling. For example, some argue that legal justifications for inclusion of women do not take into account existing interpretive approaches to non-discrimination and equality, which are overwhelmingly individualist—rather than group—focused (Torbisco-Casals, 2016, 93). In other words, to achieve sex representativeness, a difference-based approach that takes into account structural forms of disadvantage that women face is needed, rather than a simple application of existing norms, echoing well-worn debates between liberal institutionalist and structural bias strands of feminism (Torbisco-Casals, 2016, 93). Furthermore, if Article 8 UN Charter 8 bars only overtly discriminatory actions by the UN itself, it does not obligate Member States to take affirmative action (Rose, 2016, 87–89). As Cecily Rose proposes, Article 8 CEDAW may strongly obligate states to select both male and female decision-makers, but it, as well as regional human rights instruments, is considered a weak and inefficient motivator for state action (2016, 88). Rather than rooting arguments in legal obligation, some propose that legitimacy arguments are more effective. Further, questions have been raised about whether advocating for the presence of women on international courts is itself a feminist venture since more women on the bench does not necessarily result in more ‘feminist’ or ‘gender just’ or ‘gender responsive’ judgments, although it is acknowledged to remedy the longstanding domination of the international bench by male adjudicators (Grey and Chappell, 2019).

3.  Redressing Gender Imbalance through Selection Procedures

18  In response to the paucity of women adjudicators, NGOs, scholars, and some states have taken steps to call attention to this issue, with varying degrees of success over time. Since the 1990s, concerns about gender balance have resulted in lobbying for specific female judicial and arbitral candidates, the crafting of sex-sensitive selection procedures for some newer courts, and the modification of selection procedures or the passage of resolutions encouraging increased attention to sex representativeness for others (Grossman, 2016, 222). Other adjudicative bodies’ selection procedures remain unchanged, and in some cases, the percentage of women has declined over time. Advocacy campaigns initially focused on increasing the percentages of women on international criminal and human rights courts and tribunals, but in recent years, calls have grown louder for sex representation on international adjudicative bodies with varying subject matter jurisdiction, quasi-adjudicative bodies, and arbitral panels.

19  Feminist advocates and scholars put much emphasis on gender balance on the benches of the ad hoc international criminal tribunals and the International Criminal Court in the late 1990s and 2000s. During the creation of the ICTY and its first election, NGOs lobbied successfully for the nomination and election of female candidates to the bench. When the time came to negotiate the Rome Statute of the International Criminal Court (2002) (‘Rome Statute’), states and NGOs, such as the Women’s Caucus for Gender Justice, sought a requirement for gender balance on the new court (Grossman, 2012, 663). Article 36 Rome Statute requires ‘a fair representation of female and male judges,’ as well as judges with expertise in violence against women and children. If gender voting requirements are not matched with an adequate number of candidates, the President of the Assembly of State Parties may extend the nominations period, and states are given specific instructions about how many candidates of each gender, as well as regional group and expertise, they must vote for in order for their ballots to be valid. Advocates successfully lobbied for the creation of the Advisory Committee on Nominations, in an effort to increase the quality of candidates and to ensure compliance with Rome Statute requirements (ICC, Strengthening the International Criminal Court and the Assembly of State Parties (2011) paras 19–20).

20  After the Rome Statute’s conclusion, the UN Security Council (‘UNSC’) amended the constituent instruments of the ICTY and the International Criminal Tribunal for Rwanda (‘ICTR’) to require states to take ‘into account the importance of a fair representation of female and male candidates’ when nominating candidates for ad litem judges (UNSC Resolution 1329 (2000)). No change was made with respect to sex representation for permanent judges. While women reached 33 per cent of the bench of permanent ICTR judges in 2004, they accounted for 60 per cent of ad litem judges that same year (Grossman, 2016, 229–30). The percentage of women on the ICTR never again attained such levels subsequent to 2004 (Grossman, 2016, 229–30). On the ICTY, at their highest levels of participation, women accounted for 21 per cent of permanent judges in 1997, while they were 67 per cent of ad litem judges in 2002 (Grossman, 2016, 229–30). The United Nations Mechanism for International Criminal Tribunals (MICT), charged with the winding up of activities for both tribunals has struggled with achieving significant levels of female participation. In November 2018, the UN General Assembly issued an all-male list of candidates nominated by states for the UN International Residual Mechanism for Criminal Tribunals, leading to calls for a new process to ensure the inclusion of female candidates.

21  Various constituencies have advocated for increasing sex representation on regional human rights courts, again with varying degrees of success. Starting in the mid-1990s, the Parliamentary Assembly for the Council of Europe began focusing on the paucity of women judges on the ECtHR, through a series of resolutions, recommendations, and orders regarding selection procedures. In 1999, in addition to encouraging the systematization and institutionalization of transparent national selection procedures, the Parliamentary Assembly recommended that the Committee of Ministers apply a set of criteria to the creation of national lists of judges, including the selection of both male and female candidates. In 2004, the Parliamentary Assembly, through Resolution 1366 (2004), decided that it would no longer consider lists of candidates not containing candidates of both sexes. Following a challenge by Malta resulting in the issuance of an ECtHR Advisory Opinion, the Assembly modified its list requirement: it would only consider single-sex lists where a contracting party has ‘taken all necessary and appropriate steps’ to obtain a list with a candidate of the underrepresented sex, and various bodies of the Assembly must certify the existence of exceptional circumstances permitting a list with no members of the under-represented sex (Advisory Opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (No 2) (2010)).

22  The Parliamentary Assembly of the Council of Europe also created a Committee on the Election of Judges, which is charged with studying and ranking candidates submitted to the Parliamentary Assembly, including verifying the presence of candidates of both sexes. Decisions to reject a list of candidates or to consider a single-sex list of candidates require a two-thirds majority of votes cast. The Committee of Ministers, too, emphasized the importance of complying with the sex representativeness requirement and encouraged states to take affirmative steps to solicit applications from underrepresented groups, including women and minorities (Election of judges: European Court of Human Rights (ECtHR)) (Explanatory Memorandum to the Guidelines of the Committee of Ministers on the selection of candidates for the post of judge at the ECtHR).

23  A 2015 study found that since the institution of the 2004 requirement to include members of the underrepresented gender on candidate lists, only four states had submitted single sex lists (Hennette-Vauchez, 2015, 211). Also, the percentage of women judges on the ECtHR has risen dramatically since 2004. The same study indicated that some states appear to put forth less qualified female candidates than their male candidates, raising questions about the extent to which some states are only weakly complying with the list requirements imposed by the Parliamentary Assembly (at 220).

24  The African and Inter-American systems of human rights protection are significantly less developed than the European system with regard to sex representative adjudicators from a procedural standpoint. Article 14 (3) Protocol to the African Charter states that electors of judges are to ensure ‘that there is adequate gender representation.’ Further scholarship is needed to understand how this provision came to be, what motivated states to adopt it, and how it has been implemented.

25  No formally binding mandate exists to nominate or elect women in the Inter-American system of human rights. In 2016 and 2017, following an advocacy campaign by NGOs, the Organization of American States General Assembly passed resolutions AG/RES. 2887 (XL VI-O/16) and AG/RES. 2908 (XLVII-O/17), to encourage states to nominate and elect candidates with a view toward achieving gender balance on the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Also, regional and global human rights NGOs have convened expert panels on three occasions to vet candidates and to formulate recommendations for improving selection procedures. Their reports have advocated for greater attention to gender balance in the nomination of candidates by states, as well as selection of both commissioners and judges.

26  Human rights and international criminal courts are not the only adjudicative bodies that have been affected by calls for gender parity. In 2015, the UN replaced the UN Administrative Tribunal (Administrative Tribunal: United Nations (UN)), charged with adjudicating staff employment disputes bought against the UN, and requirements for gender balance were added. The statutes of the UN Dispute Tribunal and the UN Appeals Tribunal, the internal justice system charged with adjudication of staff employment disputes brought against the UN (United Nations Internal Justice System), both require that judges be appointed by the General Assembly on the recommendation of the Internal Justice Council and ‘due regard shall be given to geographical distribution and gender balance’ (Statute of the UN Appeals Tribunal (2008), Annex II; Statute of the UN Dispute Tribunal (2008), Annex I).

27  In the world of international arbitration, arbitral institutions have taken proactive steps to increase the percentage of women in arbitration. For example, in 2018, in the London Court of International Arbitration, where women were appointed as arbitrators, the LCIA selected the arbitrators in 71 per cent of the cases, while the parties did so only in 13 per cent of the cases, and co-arbitrators did so in 17 per cent of the cases. In 2017, the Stockholm Chamber of Commerce’s appointments were 37 per cent women, while women accounted for only 8 per cent of party appointments, and 0 per cent of co-arbitrator appointments. In ICSID, while only 14 per cent of the total number of appointments went to women in 2017, ICISD and the Respondent/State each appointed 43.5 per cent of them, 13 per cent were made jointly by the parties in the underlying arbitration, and no women were appointed by the Claimant/Investor individually or by the co-arbitrators.

28  NGOs have been actively involved in lobbying for change across numerous international adjudicative bodies in recent years. In September 2015, Gqual, a campaign to promote gender parity in international tribunal and monitoring bodies, was launched at the UN, to increase the percentage of women on international law bodies, including on a diverse array of international adjudicative bodies. It included a declaration calling on governments to nominate and vote with the aim of achieving gender parity on international adjudicative bodies, as well as asking states and international organizations to develop mechanisms, guidelines, and standards to promote equal representation of women. Signatories include heads of state and other government officials, sitting and former adjudicators from numerous international bodies, and academics from around the globe.

29  The same year, global representatives of corporate entities, states, arbitral institutions, arbitration practitioners, including both counsel and arbitrators, and academics, developed the Equal Representation in Arbitration Pledge to increase the number of women appointed as arbitrators to achieve a fair representation of male and female arbitrators, with the goal of achieving parity. ArbitralWomen, another non-governmental organization, created on an informal basis in 1993, also strives to promote the involvement of women in dispute resolution. While they helpfully raise awareness about and marshal important arguments around gender parity, whether these efforts are successful in changing the composition of benches and panels of adjudicators remains to be seen.

C.  Feminist Approaches to International Adjudication: Internal Procedures and Access to Justice

30  Based on existing literature in the field, feminist critiques or advocacy concerning the internal adjudicatory procedures used by international bodies appear almost exclusively in the realm of international criminal courts and tribunals, although concerns about the relationship between procedures and access to justice for women have been raised with respect to some human rights bodies. Perhaps the impermeability of other bodies’ procedures to feminist critique or advocacy is attributable to focused concentration on what are perceived to be uniquely ‘women’s issues,’ or long overdue, or alternatively, over-emphasis, on sexual or gender-based violence. Elaboration of a feminist critique of international courts and tribunals’ procedure beyond sexual or gender-based violence and human rights merits further scholarly and activist attention.

31  Thus far, however, feminists have been actively engaged in modifying and shaping procedures of adjudicative bodies interpreting and applying international criminal law in cases involving sexual and gender-based violence. During establishment of the ICTY, feminists not only lobbied for the creation of the tribunal itself, but also they advocated for specific rules of procedure and evidence (Engle, 2005, 778). For example, the Tribunal included a Victims and Witnesses Unit to support victims and witnesses, especially survivors of sexual assault, and through the Rules of Procedure and Evidence, limited the admissibility of evidence regarding consent to sexual assault, required in camera hearings of evidence before admitting any evidence regarding victim’s consent, did not require corroborating evidence of sexual assault, and excluded evidence of prior sexual conduct. Also, the ICTY’s Office of the Prosecutor created a Legal Advisor for Gender to develop investigatory and prosecutorial strategies to address sexual assaults under the Statute. The same position was later added to the International Criminal Tribunal for Rwanda, although neither position has been consistently filled (Sellers, 2009, 307–11). Among their tasks were crafting guidelines and authoring papers on the gender makeup of investigation and prosecution teams, and establishing systems to address internal complaints, propositions which were sometimes met with resistance.

32  Despite some successes, judges, scholars, and advocates have noted that treatment by investigators, prosecutors, defense attorneys, interpreters, and judges, and the limitations imposed on testimony by rules of procedure and evidence may have resulted in added trauma for witnesses (Mertus, 2004, 110–12) (Koomen, 2012, 253–77). Former ICTY Judge Patricia Wald expressed concern about witnesses’ mental well-being during and after legal proceedings, noting that they would sometimes seek to be protected from the accused (Witness protection measures) (Wald, 2001, 108–13). Similarly, former Special Court for Sierra Leone Judge Julia Sebutinde recounted an episode of aggressive defense counsel questioning of a visibly disturbed seventy-year old grandmother testifying about gang-rape in front of her husband and adult children at an open hearing (Grossman, 2018, 43). In the same vein, some query whether witnesses’ poverty and need to travel long distances to testify, while staff and defendants appeared well-dressed and well-nourished, may be highly distressing to witnesses and question whether differences in culture and class between international tribunal employees and local witnesses could render testifying confusing, frustrating, uncomfortable, and even traumatic for many (Koomen, 2012, 264). Further, concerns have been raised that the adversarial process itself may reinforce the narrative of the woman as victim, as well as gender and cultural essentialism (Mertus, 2004, 110).

33  In response to the identification of perceived flaws at the ICTY and the ICTR, feminists, especially non-government organizations such as the Women’s Caucus for Gender Justice, sought to avoid the same mistakes at the International Criminal Court. They played an active role in shaping the ICC’s Rules of Procedure and Evidence concerning sexual and gender violence crimes, as well as emphasizing the importance of the role of victims and witnesses and providing them with adequate measures of protection, reparations, and ensuring the appointment of gender experts and women on the court’s staff, as well as in the judiciary (Spees, 2003, 1238, 1241). These efforts were responsible, at least in part, for a prohibition of the defense of consent and submission of evidence involving sexual violence in the great majority of cases; a requirement that hearings on whether such evidence be permitted be held in closed sessions; and a prohibition on mandating corroboration of victim testimony (Victim participation in international criminal proceedings) (Spees, 2003, 1241).

34  The Rome Statute also allows for victim and witness participation in proceedings, including with legal representation, and it mandates that the Court take steps to protect witnesses and victims’ safety and well-being, including holding in camera hearings. For example, Article 68 Rome Statute provides that where victims’ personal interests are affected, the Court ‘shall permit their views and concerns to be presented and considered,’ in a manner that is ‘not prejudicial to or inconsistent with the rights of the accused.’ Also, the Court must take measures ‘to protect the safety, physical and psychological well-being, dignity and privacy of witnesses,’ taking into account their age and gender (Art 68 Rome Statute). Article 75 Rome Statute permits the Court to award reparations to or in respect of victims. About ten years after the Rome Statute was concluded, a mechanism was established in the Extraordinary Chambers in the Courts of Cambodia (ECCC) to provide some participation rights to victims of the Khmer Rouge. Despite successful aspects of these victim participation schemes, questions remain about their impact on the visibility and trauma of survivors of sexual and gender-based violence (SáCouto, 2012, 300–2).

35  Advocates have also attempted to shape the procedures for selecting crimes to be charged, in particular with the goal of ensuring that sexual and gender-based violence is prosecuted. Feminists decried the failure of prosecutors at Nuremburg to charge defendants with sex crimes despite ample evidence, as well as the decision of prosecutors in the International Military Tribunal for the Far East to use euphemistic labels for the sex crimes they prosecuted (Brouwer, 2005, 7–8). When faced with skepticism about using international criminal jurisdiction to prosecute sex crimes in the ICTY and the ICTR, feminists took steps such as filing amicus briefs and challenging prosecutors to address sex crimes adequately and judges to amend indictments (Guzman, 2011, 517). For example, the Coalition for Women’s Human Rights in Conflict Situations made a motion to file an amicus brief encouraging the ICTR to request amendment of an indictment to add sexual violence charges after two witnesses testified during a trial about sexual violence (SáCouto, 2012, 305–6). Due to these efforts, at least in part, Article 54 Rome Statute specifically mandates that the Prosecutor shall:

Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.

In addition, the Office of the Prosecutor made the effective investigation and prosecution of sex and gender-based crimes one of its key strategic goals in its Strategic Plan 2012–15. It also issued a 2014 Policy Paper on Sex and Gender-based Crimes committing to ‘integrating a gender perspective and analysis’ into all its work, providing adequate training for staff, adopting a victim-responsive approach, and taking into account staff interaction with victims and witnesses and their families and communities (para 53).

36  Limited feminist critique or activism around procedure exists outside the realm of international criminal courts and tribunals. For example, little is known about the procedures regional or international human rights courts and commissions utilize when faced with cases involving gender-based violence or sexual assault. As regards access to justice, procedures may be partly at fault for disproportionately low rates of usage by women of regional human rights bodies and UN treaty body complaint mechanisms. For example, only a handful of contentious cases at the African Court on Human and Peoples’ Rights have ever involved women, and its limited jurisdiction with respect to NGOs that seek to obtain advisory opinions diminishes its jurisdiction to consider questions involving women’s rights. In the same vein, Francoise Tulkens, a former judge of the ECtHR proposed consideration of procedural reforms to ensure more equitable usage of the court’s resources, in response to a study showing that women lodged applications in the ECtHR only 16 per cent of the time between 1998 and 2006 (2007, at 431–32). Women appear to file only a small number of complaints in UN treaty bodies as well (Sjöholm, 2018, 96).

D.  Feminist Approaches to International Adjudication: Outcomes

37  Because feminist critiques or methods are not necessarily labeled as such, it can be challenging to identify feminist critiques or analysis of international courts’ outcomes, or to assess the impact of feminist approaches on the outcomes of international adjudication. Outcomes in this context are the reports, decisions, judgments, and rulings of international adjudicative bodies. At times, alternative or additional terminology may be used, including ‘gender perspective,’ ‘gender justice,’ ‘gender responsiveness,’ or ‘gender jurisprudence,’ to locate the outcomes of international adjudicative bodies related to gender and sex. Systematic and timely compilations of relevant jurisprudence are not always available or accessible, depending on the international adjudicative body concerned, its priorities, and its resources. Also, adjudicators may be reticent to frame their decisions or methodologies in overtly feminist terms for fear of backlash and accusations of prejudice (Charlesworth, 2019). Further, international judges’ career paths, often requiring nomination at the national level and election at the international one, and therefore, close connections to the highest levels of the legal profession, coupled with long-held conceptions of propriety in judging, may favour more conservative or conventional forms of legal analysis (Charlesworth, 2019). In other words, the culture of international judging may render international decisions somewhat impervious to overt and explicit feminist judging. Despite these limitations, this section provides some non-exhaustive examples of outcomes potentially of interest to feminist scholars and activists, and it highlights some feminist critiques of these bodies.

1.  International Criminal Courts and Tribunals

38  Extensive scholarship exists assessing the record of international criminal courts and tribunals’ judgments on sexual and gender-based violence, as well as feminists’ role in shaping the law. Some of the many opinions generally lauded for their impact on the development of international law concerning gender and sex-based violence include those classifying rape as a crime against humanity; rape as a violation of the laws and customs of war; sexual violence as a component of the crime of genocide; sexual violence, including rape as torture; as a violation of the laws and customs of war; and sexual slavery and forced marriage as crimes against humanity. Feminists have also extolled the ICTY Appellate Chamber’s decision in Prosecutor v Furundzija, 2000, to deny a motion to recuse a judge based on allegations of bias due to her participation in the UN Commission on the Status of Women during the Yugoslav war. In denying this ground for appeal, the Appellate Chamber noted that associating oneself with the view that rape is abhorrent and should be prosecuted within the limits of law does not constitute judicial bias and that experience in human rights law, including service on the Commission for the Status of Women, enhances the eligibility of judges to serve on international criminal tribunals.

39  Janet Halley and others have proposed that feminists and feminist ideas have, to a significant extent, already reached the level of ‘Governance Feminism’: although feminists have not achieved all of their goals, feminism and feminist ideas have become incrementally and noticeably installed in legal-institutional power in the realm of international humanitarian law (Halley, Kotiswaran, Shamir, and Thomas, 2006, 340–2). Others paint a less rosy picture of these courts’ and tribunals’ jurisprudence, for example, by criticizing the Office of the Prosecutor for missing opportunities to develop the law on sexual and gender-based crimes during the court’s first twenty years (McIntyre, 2018, 177). Also, feminist emphasis on sexual and gender-based crimes in international criminal tribunals has been criticized on feminist grounds for potentially establishing a hierarchy of harms, devaluing harms that are not sexual, privileging sexual violence in war or other contexts over sexual violence in peacetime, and reinforcing the assumption that victims are destroyed and forever shamed by rape (Simm, 2018, 63; Engle, 2016, 225).

2.  Human Rights Bodies

40  In the realm of human rights law, feminist scholars and activists have both lauded and decried the decisions of regional bodies, and they have been involved to varying degrees in attempting to influence outcomes. The ECtHR has the most cases concerning gender equality of the regional human rights bodies. A January 2019 Factsheet of the ECtHR summarizing jurisprudence on gender equality lists over sixty-five cases involving: the right to life and prohibition of torture and inhuman or degrading treatment or punishment—domestic violence; the prohibition of slavery and forced labor—discrimination against men in jury service, military service, and fire brigade; right to liberty and security—discrimination in provisions governing liability to life imprisonment; right to a fair trial—action for disavowal of paternity, reasoning in support of a judgment based on difference of sex, failure to enforce a judgment acknowledging gender discrimination; right to respect for private and family life—disavowal of paternity, compensation for a medical error, choice of family name and transmission of parents’ surnames, calculation of disability allowance, dismissal on the grounds of gender, immigration rules, ineligibility for a stay of execution of a prison sentence and right to respect for private and family life, parental leave and parental leave allowances, right to prison leave, termination of a widower’s pension; freedom of thought, conscience, and religion—wearing of religious clothing; protection of property—elder person’s travel permits, entitlement to a refugee card, entitlement to social security, obligation to pay contributions under social-welfare scheme, pension scheme, unavailability of widows’ allowances to widowers; and right to free elections—lists of candidates for election to representative bodies. The Court also publicizes factsheets on cases involving Gender Identity, Homosexuality: Criminal Aspects, and Sexual Orientation Issues. The vast majority of its cases concerning gender equality arose after the year 2000.

41  Cases concerning Muslim women’s headscarves have drawn particular attention of feminist scholars and advocates. In Leyla Sahin v Turkey, 2005, the European Court found that barring a female medical student from wearing her hijab to classes, and thereby from medical school in Turkey, did not violate Turkey’s obligations with respect to freedom of religion or right to education. In what arguably constitutes a rare instance of the application of explicit feminist methodology, Judge Françoise Tulkens criticized the Court for failing to take into account the opinions of women who choose to wear or refrain from wearing the headscarf. Cases involving domestic violence have also received special focus, especially Opuz v Turkey, 2009, concerning a victim of domestic violence whose husband also murdered her mother. In this case, the Court for the first time recognized the domestic violence at issue was rooted in discrimination on the basis of gender, and it took into account the high number of incidents involving domestic violence in the state, the impunity of victimizers, and the passivity of the judicial system (Cuenca, 2018, 333). Cases involving sex trafficking, sexual and reproductive rights, birth control and forced sterilization, abortion, access to reproductive technology, and surrogacy have also drawn attention.

42  Court watchers have criticized the Court’s gender-related case law on a variety of grounds, including charges that the Court has a formalistic understanding of discrimination and an unsophisticated understanding of gender equality which ignores the intersectionality of discrimination. In a comprehensive study of the Court’s gender jurisprudence, Ivana Radacic found the Court’s decisions improperly focused on the type of policy involved, whether the relevant conduct occurred in the public or private sphere, or whether there is a European consensus around the issue, rather than on the impact of policies on gender and gender relations (Radacic, ‘Gender Equality Jurisprudence’, 2008, 850). Interestingly, she also found that the majority of sex discrimination cases were brought by men, although women are disproportionately affected by discrimination. Others, including Encarna Carmona Cuenca, have evaluated the degree to which the Court has begun to incorporate gender perspectives and attention to existing gender stereotypes into its case law, particularly in recent times, as well as the link between the Court’s reliance on and shaping of the margin of appreciation doctrine and the continuation of potentially discriminatory policies and practices, and the extent to which the Court takes into account the intersectionality of discrimination (at 311–34) (Danisi, 2011, 795).

43  Scholars and activists have also focused attention on the Inter-American system of human rights protection which includes both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Although no official and current compendium of the Court and Commission’s gender jurisprudence is available, a report of the Inter-American Commission on Human Rights highlights key cases and reports in the Court and the Commission’s work involving gender equality and women’s rights up until 2015. Cases and reports of interest include those relating to violence, discrimination, and the duty to act with due diligence; sexual violence and access to justice; intersection of different forms of discrimination; the definition of sexual violence and its link to the integrity of women; due diligence and acts committed by private actors; indigenous women, sexual violence, and specific barriers to access to justice; violence against women in armed conflict; sex as a prohibited factor of discrimination; the link between discrimination and violence against women; discrimination on the basis of sexual orientation; and equality before the law, the obligation not to discriminate, and reproductive rights. Although the facts of the case had nothing to do with women’s rights or gender, the Court’s decision in Velásquez Rodríguez, 1988, made a substantial impact on women’s rights in the realm of domestic violence by imputing responsibility to states for lack of due diligence in preventing or responding to human rights violations undertaken by private actors.

44  The Court’s gender jurisprudence was generally considered inconsequential prior to 2006, prompting one scholar to argue that the Court’s lack of sensitivity to gender resulted in ignorance and mishandling of the limited number of claims involving women’s human rights violations, thus depriving victims of justice and women’s rights practitioners of tools to advance women’s rights (Zuluaga, 2008, 231–32). More recently, scholars and advocates have lauded several decisions in which the Inter-American Court adopted a gender perspective and referred explicitly to gender stereotypes and their impacts. For example, in González y Otras v Mexico ‘Campo Algodonero’, 2009, the Court affirmed that violence against women in Ciudad Juárez was a form of structural discrimination based on gender, and for the first time explicitly referred to gender stereotypes and declared its jurisdiction to interpret and apply the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belem do Pará). In Atala Riffo and Daughters v Chile, 2012, the Court ruled that Chile violated the human rights of a lesbian woman judge in Chile by depriving her of the custody of her daughters because of her sexual orientation and inquiring into and investigating her sexual orientation during a judicial disciplinary investigation. These cases were lauded not only for their sensitivity to gender stereotypes, but also for the remedies the Court crafted, which included undertaking public acts acknowledging the responsibility of the state in the presence of high state officials, the publication of the Court’s rulings, and training for public officials and the community on human rights and non-discrimination, including training on eradication of gender stereotypes (Undurraga and Eggers, 2017, 375–76; López, 2012, 31–2, 37–40). Scholars have argued that challenges to the Court’s continuing application of a gender perspective include a lack of knowledge and understanding of what a gender perspective is, as well as opposition to gender-driven reform by conservative discourse (Undurraga and Eggers, 2017, 385–87).

45  Also of particular interest to feminist scholars and activists is a 2017 Inter-American Court Advisory Opinion concerning states’ obligations to same sex couples, touching upon gender identity, equality, and non-discrimination. The opinion includes a glossary of terms such as ‘sex’, ‘binary system of gender and sex’, ‘intersexuality’, ‘gender’, ‘gender identity’, ‘gender expression’, ‘transgender’, ‘transvestite’, ‘cisgender’, ‘sexual orientation’, ‘homosexuality’, ‘heterosexual’, ‘lesbian’, ‘gay’, ‘homophobe’, and ‘cisnormativity’, among others (para 32). The Court’s qualifications that these definitions are ‘en constante revisión’ and should be treated with the utmost care (para 31) arguably incorporate queer theory tropes about the fluidity and dynamism of these categories.

46  Feminist approaches to and gender jurisprudence in the African system of human rights protection appear to have been subject to substantially less scholarly attention than the European and Inter-American systems. Some have argued this may be due to the filing of only a small number of petitions and applications involving gender, numerous and weighty barriers to accessing justice both at the local and international levels, procedural limitations on how allegations of violations of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa can reach the African Court, and lack of awareness across the continent about the human rights mechanisms that exist (Rudman, 2018, 328). The African Court on Human and Peoples’ Rights was only established relatively recently in 2004, and as of April 2019, only nine states had recognized the Court’s competence to receive complaints from individuals and NGOs, limiting the pool of possible applicants substantially. Of the fifty-nine completed cases filed at the African Court by early 2019, only a very small number involved a female complainant or women or girls in the relevant facts. One case of interest to feminist scholars is Association pour le progrès et la défense des femmes maliennes and The Institute for Human Rights and Development in Africa v Republic of Mali, 2018, brought by NGOs concerning the minimum age of marriage, right to consent to marriage, right to inheritance, and the obligation to eliminate traditional practices and conduct harmful to the rights of women and children. It was the first and only case as of early 2019 to find violations of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Another case, Mariam Kouma and Ousmane Diabaté v Mali, 2018, involves violence perpetrated against a woman and her son, also represented by NGOs, for failing to accept the return of a monkey and reimburse the purchaser, but the case was ultimately deemed inadmissible.

47  As of March 2019, the Court had issued no advisory opinions because the Court has repeatedly determined it has extremely limited jurisdiction to rule on requests for Advisory Opinions brought by NGOs (Advisory Proceedings: African Court of Human and Peoples' Rights (ACtHPR)). For example, several women’s rights NGOs sought an advisory opinion on the nature and scope of states’ obligations with respect to unrecorded and unregistered marriages, but the Court found no jurisdiction to issue an advisory opinion because none of the NGOs were recognized by the African Union as required by Article 4 (1) Protocol to the African Charter (Advisory Opinion No 1/2016, 2017). The Court rejected another request for an Advisory Opinion, this time by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians, for the same reason (Advisory Opinion No 002/2015, 2017). Interestingly, in both cases Judge Rafâa Ben Achour filed a separate opinion urging the African Union to amend its Protocol to create greater possibilities for NGOs to seek Advisory Opinions from the Court.

48  A handful of communications involving women’s rights have been filed pursuant to the quasi-adjudicatory jurisdiction of the African Commission on Human and Peoples’ Rights, resulting in only a small number of decisions on the merits. One study found that between 1996 and 2015, the Commission engaged with women’s rights issues in only 10 of 408 communications (Rudman, 2018, 331). These include: Doebbler v Sudan, 2003, involving the arrest and public flogging of female students having a picnic with male students, for acts contrary to public morality in public; and Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 2011, involving alleged human rights violations, including sexual violence, against four female journalists at a political demonstration. Scholars have critiqued the Commission for generally failing to engage with rape and sexual violence in a meaningful way and for failing to develop a consistent or systematic approach to addressing the subordination of women and the violation of women’s rights in Africa, and they have suggested the establishment of new institutional mechanisms devoted to monitoring women’s rights in Africa (Rudman, 2018, 333; Durojaye and Oluduro, 2016, 3; Budoo, 2018, 60).

49  The Court of Justice of the Economic Community of West African States (ECOWAS) has also issued a limited number of opinions which may be of interest to feminist scholars and activists. For example, in Hadijatou Mani Koraou v The Republic of Niger, 2008, the Court held the Republic of Niger responsible for violations of rights under the African Charter on Human and Peoples’ Rights, of a twelve-year old girl who was enslaved pursuant to a customary practice called ‘wahiya’, due to the inaction of its administrative and judicial authorities, and ordered reparations, although the Court found Niger was not responsible for the discrimination she suffered. Another case, Henri v Côte d’Ivoire, 2009, concerns the rights of pregnant and nursing mothers while detained or imprisoned, and those of newborn children.

50  The outcomes of UN human rights treaty bodies, quasi-adjudicative bodies charged with interpreting and monitoring the implementation of various global human rights treaties, and in some cases, hearing individual communications or conducting inquiries into human rights violations, have been subject to more limited feminist analysis. Scholars and activists have questioned the extent to which issues relevant to women have been relegated to the Committee on the Elimination of Discrimination against Women (CEDAW), rather than being integrated or mainstreamed across all the treaty bodies (Johnstone, 2006, 151). Radacic critiqued the Human Rights Committee, charged with interpreting and monitoring implementation of the International Covenant on Civil and Political Rights, for failing to discuss women’s experiences with regard to freedom from gender-based violence and reproductive rights in early comments on the right to life, torture, security of persons and the right to liberty, and privacy, and argued the jurisprudence of these bodies contains many of the same biases and silences feminists have critiqued in other areas of international law (‘Feminism and Human Rights’, 2008, 243). Nevertheless, through its General Recommendations and Comments, as well as reports on individual communications and inquiries, several of the treaty bodies, including CEDAW, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights (CESCR), and others, have commented on a wide range of topics potentially of interest to feminist scholars and activists. These topics include but are not limited to gender based violence, equality between women and men, discrimination against women, discrimination on the basis of sexual orientation and gender identity, women and health, women migrant workers, women and climate change, equal remuneration for work of equal value, and women in conflict situations, among many others.

3.  Other Adjudicatory Bodies

51  While feminist scholars and activists have relatively frequently assessed the work of international criminal courts and tribunals, and to a lesser extent regional and global human rights bodies, feminist engagement with the outcomes of other international adjudicative bodies and with a broad range of topics transcending ‘women’s issues’ appears much more limited. Krivenko found disengagement from women’s and feminist issues in a rare ICJ case where violence against women was raised in the Application (2019). Specifically, the majority of the judges appeared unaware of or did not wrestle with the connection between Article 1 CEDAW explicitly concerned with the principle of non-discrimination, and its connection to the prohibition of violence against women, detailed in a generally well-known CEDAW Committee General Recommendation, as well as a plethora of scholarship. The extent to which both male and female judges are utilizing feminist methodologies in ICJ judgments, as well as in separate and dissenting opinions, has only just begun to be explored (Krivenko, 2017, 962).

52  In recent years, one group of scholars took on the challenge of rewriting international law judgments from a feminist perspective. In ‘Feminist Judgments in International Law,’ feminist scholars rewrote fifteen international decisions, including advisory opinions and judgments from the Permanent Court of International Justice (PCIJ), the ICJ, the Court of Justice of the European Union, the ECtHR, the Special Court for Sierra Leone, the International Criminal Court, and the ICTY, as well as Views from the Committee on the Elimination of Discrimination Against Women. In so doing, the authors sought to bring new emphasis to individuals affected by the disputes, including women and others, and to rely on a broader range of sources of international law, including resolutions generated by women, and noted the failure of international criminal tribunals to grapple with extensive evidence about sexual crimes (Charlesworth, 2019). Interestingly, eight of the fifteen judgments involved human rights in the European system or international criminal law, raising questions about the extent to which feminist judgments might be rewritten about topics less traditionally associated with feminist analysis, such as the law of the sea or international investment law, as well as in other regions of the world.

E.  Feminist Rejection of International Adjudicative Bodies

53  Feminists have on occasion rejected international adjudicative bodies as a locus for effectuating their goals in favour of non-traditional bodies with some adjudicative characteristics. For example, feminists have created ‘peoples’ tribunals’ or ‘women’s tribunals,’ in response to perceived flaws in existing law or failure of existing tribunals to adjudicate adequately or fairly their factual or legal claims, particularly in regard to international human rights violations and international crimes (Otto, 2017, 225–27; Simm, 2018, 40–1). Although procedures and subject matter appear to vary widely, as indicated in the growing scholarship in this field, a peoples’ tribunal is generally initiated by civil society, and a body of renowned individuals hear evidence and arguments concerning the accountability of a wide range of actors, including corporations, individuals, states, and international organizations, for violations of either domestic, international law or ‘peoples’ law’ (Simm, 2018, 3–4).

54  Among the guiding principles of these tribunals is a critique of states as the exclusive interpreters, generators, and appliers of international law (Simm, 2018, 24). Examples of such initiatives with a feminist bent include: the International Tribunal on Crimes against Women, held in Brussels in 1976, which considered evidence involving violence against women, sexual and reproductive freedom, crimes within the family, crimes against Lesbians, and economic crimes, among others; the Tokyo Women’s Tribunal, which investigated the Japanese military’s ‘comfort women’ system during World War II; the Asia-Pacific Regional Women’s Hearing on Gender-Based Violence in Conflict, which focused on sexual violence perpetrated against women in the Cambodian conflict; and the Judicial Council for the Women’s Court-Feminist Approach to Justice, also known as the Sarajevo Tribunal, to investigate gender-based harms perpetrated against women in the former Yugoslavia (Simm, 2018, 69; Otto, 2017, 226–27).

55  In addition, non-governmental organizations have sponsored a series of World Courts of Women, beginning in 1994, predominantly in Africa and Asia, on a diverse set of topics, including violence against women, reproductive technology, racism, trafficking and war crimes, several as counter-conferences to international summits. While these bodies have been challenged from multiple perspectives, including bias, lack of legitimacy, and lack of due process, they nonetheless can be understood as a meaningful critique of conventional international courts and tribunals, seeking to create a new space for addressing feminist concerns.

F.  Conclusion

56  International adjudication has benefitted from feminist approaches in a number of contexts. Asking the woman question, as well as using other feminist or ‘gender sensitive’ or ‘responsive’ methods, has engendered challenges to the continued dominance of international adjudicative bodies by male decision-makers, while pushing states to reconsider processes for nominating and electing them. It has resulted in changes to internal judicial procedures in cases involving sexual and gender-based violence in international criminal courts and tribunals, and in enhanced emphasis on the prosecution of sexual and gender-based crimes. In addition, international adjudicative bodies have produced some significant outcomes that reflect feminist ideals. Feminist approaches to international adjudication also provide insights into the numerous challenges that continue to exist to achieving equality for women and men. They serve to unmask hidden biases and gendered assumptions in the processes and outcomes of international adjudication.

57  Yet some areas of international adjudication appear more susceptible to the application of feminist approaches than others. Feminist advocacy and critique appears to have made a significant impact on decision-makers, processes, and outcomes of international criminal courts and tribunals. The scope and influence of feminist approaches appears more attenuated with respect to decision-makers, processes, and outcomes in human rights bodies, although it seems to vary depending on the court, commission, or committee at issue and area of law involved. Lack of easy access to up-to-date compendia of gender-related jurisprudence may hinder feminist analysis and critique, and disproportionate lack of access to justice mechanisms may, in some instances, limit the jurisprudence these bodies can develop. Also, gaps exist in knowledge about the extent to which feminists use these bodies strategically to further women’s rights and equality, and whether and to what extent they may have made efforts to influence internal procedures.

58  Calls for sex representative adjudicators exist for international adjudicative bodies with subject matter jurisdiction transcending human rights and international criminal law. Yet development and application of feminist methodology to the procedures and outcomes of bodies like the ICJ, the International Tribunal on the Law of the Sea, the World Trade Organization Dispute Settlement Body, and international investment dispute bodies is at a nascent stage. In some cases, the application of feminist approaches has resulted in rejection of international courts as a locus for effectuating change, in favour of peoples’ tribunals entirely divorced from state power.

59  Despite the challenges and limitations, feminist approaches have and can continue to enrich the debate about the decision-makers, processes, and outcomes of international adjudication in meaningful ways. They also raise important questions about the extent to which international adjudication is a useful tool for achieving equality for and eradicating the subordination of women and how international adjudication can be improved.

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  • K Polonskaya, ‘Diversity in the Investor-State Arbitration: Intersectionality Must Be a Part of the Conversation’ (2018) 19 Mel J Int’l L 259–98.

  • A Rudman, ‘Women’s access to regional justice as a fundamental element of the rule of law: The effect of the absence of women’s rights committee on the enforcement of the African Women’s Protocol’ (2018) 18 African Human Rights Law Journal 319–345.

  • G Simm, ‘Peoples’ Tribunals, Women’s Courts and International Crimes of Sexual Violence’ in A Byrnes and G Simm (eds), Peoples’ Tribunals and International Law (Cambridge University Press 2018) 61–83.

  • M Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human Rights Law Systems (Brill Nijhoff 2018).

  • H Charlesworth, ‘Prefiguring Feminist Judgment in International Law’ in L Hodson and T Lavers (eds), Feminist Judgments in International Law (Hart 2019) (forthcoming).

  • R Grey and L Chappel ‘“Gender just judging” in international criminal courts: New directions for research’ in S Rimmer and K Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar Publishing 2019) (forthcoming).

  • E Krivenko, ‘Women and the International Court of Justice’ in S Rimmer and K Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar Publishing 2019) (forthcoming).

  • E Voeten, ‘Gender and Judging: Evidence from the European Court of Human Rights’ (SSRN 2019) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3322607> (accessed 4 March 2019).

  • R West, ‘Introduction to the Research Handbook on Feminist Jurisprudence’ in R West and C Grant Bowman (eds), Research Handbook on Feminist Jurisprudence (Edward Elgar Publishing 2019) 1–22.

Further Bibliography

  • N Grossman, ‘Sex Representation on the Bench and the Legitimacy of International Criminal Courts’ (2011) 11 International Criminal Law Review 643–53.

  • V Oosterveld, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’ (2011) 44 Cornell Int’l L J 49–74.

  • Inter-American Commission on Human Rights, ‘Legal Standards Related to Gender Equality and Women’s Rights in the Inter-American Human Rights System: Development and Application’ (2011, updated 2015).

  • M Ebrahim-Carstens, ‘Gender Representation on the Tribunals of the United Nationals Internal Justice System: A Response to Nienke Grossman’ (2016) 110 AJIL Unbound 98–104.

  • N Grossman, ‘Achieving Sex-Representation International Court Benches’ (note and comment) (2016) 110 AJIL 82–95.

  • L Yong, ‘Milan Chamber honours Pledge with gender diversity stats’ (27 July 2017) Global Arbitration Review.

  • Open Society Justice Initiative and The International Commission of Jurists, Strengthening from Within: Law and Practice in the Selection of Human Rights Judges and Commissioners (Open Society Foundations 2017).

  • M Kinnear and O Babiak, ‘International Investment Arbitration Needs Equal Representation’ (9 April 2018) Center for International Governance and Innovation <https://www.cigionline.org/articles/international-investment-arbitration-needs-equal-representation> (accessed 23 April 2019).

  • ‘About Arbitral Women’ (2019) Arbitral Women <https://www.arbitralwomen.org/aw-outline/> (accessed 27 April 2019).

Cited Documents

Further Documents

Cited Cases

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