How Can the Methodology of Feminist Judgment Writing Improve Gender-Sensitivity in International Criminal Law?
| Author | Kathryn Gooding |
| Position | LLB (LSE) '18, LLM (Leiden University) '18, Public Law Paralegal at Irwin Mitchell 2019 |
| Pages | 115-151 |
Vol. 5 Feminist Judgement Writing: Gender-Sensitivity in International Criminal Law
115
How Can the Methodology of Feminist Judgment
Writing Improve Gender-Sensitivity in International
Criminal Law?
Kathryn Gooding*
ABSTRACT
The Feminist Judgments Project has been utilised in a number of jurisdictions, including the
UK, US, Canada and Australia, to critique real-life judicial judgments and to re-write these
problematic judgments using feminist judging methodologies. This paper seeks to demonstrate the
utility of the application of feminist judging methodologies to judgments and decisions from
international criminal law mechanisms, with a specific focus on sexual and gender-based crimes,
as a means to improve gender-sensitivity in international criminal judicial decision-making.
Through an analysis of feminist judgments and feminist dissenting opinions from the UK, US
and International Criminal Court, the main hallmarks of feminist judging are identified. The
author uses the hallmarks of feminist judging to create her own Feminist Judgment based on a
decision from the Prosecutor v Ongwen case before the International Criminal Court, to display
the indeterminacy of judicial decision-making in international criminal law and to demonstrate
how greater gender-sensitivity can be achieved at the International Criminal Court through
feminist judicial reasoning.
INTRODUCTION
The field of international criminal law has been consistently criticised for its
lack of gender-sensitivity. Suzan M. Pritchett argues that international law is a
gendered system, which has failed to reflect the experiences or needs of women.
1
* LLB (LSE) ‘18, LLM (Leiden University) ‘18, Public Law Paralegal at Irwin Mitchell
2019. Areas of interest: international criminal law and socio-legal studies.
1
Suzan M Pritchett, ‘Entrenched Hegemony, Efficient Procedure, or Selective Justice?
An Inquiry into Charges for Gender-based Violence at the International Criminal Court’
(2008) 17 Transnational Law and Contemporary Problems 265.
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Whilst it must be conceded that the attitude of the international bench has
improved towards women, and that sexual and gender-based crimes are receiving
unprecedented attention, particularly in the International Criminal Court,
2
significant problems r emain. The gendered elements of international crimes are
systematically overlooked, and the impacts of sexual and gender-based crimes on
men, and the corresponding implications f or women, are ignored. Many of these
problems stem from the lack of diversity and consequential lack of differing
perspectives on the i nternational criminal bench. Hilary Charlesworth and
Christine Chinkin argue that there has been a notable lack of women in the
development of international law, which has produced a narrow and inadequate
jurisprudence, perpetuating the unequal position of women around the world.
3
On nine of the twelve international courts, women made up 20 percent or less of
the bench in mid-2015.
4
In the international criminal field, the bench has been
defined by a lack of gender diversity. At the time of writing, male judges
outnumber female judges on the current bench of the International Criminal
Court (ICC) by two to one.
5
In 2016, all 14 permanent judges of the International
Criminal Tribunal for the former Yugoslavia (ICTY) were men.
6
This lack of gender diversity is highly concerning because there is evidence
to suggest that women and men may approach certain legal iss ues differently.
Rosemary Hunter argues that, on the basis of an assessment of English and Welsh
judges, non-traditional judges reach different decisions. She claims that female
judges can alter the outcomes of cases by bringing a “gendered sensibility”
7
to the
process of decision-making. One reason for this phenomenon may be that all
2
See for example ICC Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based
Crimes’ (June 2014).
3
Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist
Analysis (Manchester University Press 2000) 1.
4
Nienke Grossman, ‘Achieving Sex-Represen tative International Court Benches’ (2016)
110 American Journal of International Law 82.
5
International Criminal Court, ‘Who’s Who’ -cpi.int/bios-2> accessed
24 January 2019.
6
Joseph Powderly and Jacob Chylinski, ‘The Women Judges: Leading the Line in the
Development of International Law’ in William A Schabas and Shannonbrooke Murphy
(eds), Research Handbook on International Courts and Tribunals (Elgar Publishing 2017)
143-180.
7
Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-
Making’ (2015) 68 Current Le gal Problems 119.
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judges bring their life experience to the process of judging.
8
Female judges have
markedly different experiences to male judges, in particular with their experiences
of giving birth to and raising children, sexism, and discrimination. These
alternative experiences could lead to judgments more accuratel y reflecting the
reality and diversity of human experience, not simply the male life experience.
It is submitted that a means to improve gender-sensitivity in international
criminal la w would be for judges of the international criminal bench to utilise
feminist methodologies of judging in their reasoning and in determining case
outcomes. Berger, Crawford and Stanchi argue that feminism strives to embrace
justice for all and associates itself with movements for the representation of
historically marginalised gr oups.
9
By prioritising the views and interests of
historically marginalised groups, feminist theories allow us to challenge the
concepts and rules of the international legal order, which are built on “sexed and
gendered hierarchies of difference”.
10
This is not to say that by having greater
gender diversity on the international bench, there would be an explicit move
towards feminist judging. However, greater diversity on the bench is indicative of
broader perspectives brought to international judging, as can be seen with the
impact that women have on the domestic judging process.
Many feminist judgment projects have arisen around the world, whereby
original decisions from different jurisdictions are re-written using feminist
methodologies of judging. The fir st feminist judgments project was originally set
up by a group of Canadian lega l academics, who published six judgments. These
judgments were rewritten opinions of the Canadian Supreme Court, which re-
interpreted the Canadian Charter of Rights and Freedoms using feminist
reasoning.
11
The feminist judgments project was then taken up in 2010 by English
feminist scholars, who re-wrote judgments that were problematic from a feminist
8
ibid.
9
Linda L Berger, Bridget J Crawford and Kathryn M Stanchi, ‘Feminist Judging Matters:
How Feminist Theory and Methods Affec t the Process of Judging’ [2018] Scholarly
Works 1100.
10
Charlesworth and Chinkin (n 3) 44-45.
11
Rosemary Hunter, ‘The Power of Feminist Judgments?’ (2012) 20 Fem. Leg. Stud. 135.
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