For the First Time, a Woman Judge Heads the International Criminal Court
By Kelly Askin
The election of Judge Silvia Fernandez de Gurmendi of Argentina as the first woman president of the International Criminal Court on March 11 marks a significant step forward for the proper representation of women in the top ranks of international justice.
Judge Fernandez replaces Judge Sang-Hyun Song of South Korea as the judge responsible for overseeing the court’s administration and for its relations with states and international organizations. Over the coming three years of her term, she will be supported by Judge Joyce Aluoch of Kenya, elected alongside her as first vice-president, and Judge Kuniko Ozaki of Japan, chosen as second vice-president. For the first time, the ICC Presidency consists solely of women. This is particularly notable as all six new judges sworn in on Tuesday, March 10, were male; females are currently outnumbered on the court 11 to 6 (not including Judge Sylvia Steiner, who has served her full term but is continuing in office to complete a trial).
Strong judicial leadership is indispensable to building a sustainable, credible court. Women in top positions in other international courts have often proved to be the most effective advocates and managers. I’ve had the great pleasure to know Judge Fernandez since the mid-1990s, when we collaborated during Preparatory Committees to establish the ICC. I’ve long been impressed with her outstanding legal, diplomatic, analytical, and mediation skills, and I am encouraged that she has the type of leadership qualities to help move this court past its awkward growing pains, to be the highly respected and effective court envisioned by its proponents.
Article 36 of the Rome Statute provides that judges must be chosen from among persons of high moral character, impartiality, and integrity, and candidates must possess the qualifications required in their respective states for appointment to the highest judicial offices.
Regrettably, all too often, states have failed to nominate those who represent the sharpest legal minds and have instead put forth candidates who merely qualify or because of they may be politically connected (and occasionally, ones who do not even meet the basic minimum requirements). It has been 22 years since the United Nations Security Council reversed the decades-long practice of worldwide impunity for mass atrocity crimes by establishing the International Criminal Tribunal for the former Yugoslavia, the contemporary predecessor to the subsequent tribunals. International courts adjudicating some of the worst crimes committable—including war crimes, crimes against humanity, and genocide—should be filled with the best, not the average or mediocre jurist. (Nonetheless, it should be emphasized that the various international courts have indeed had a few brilliant legal minds sitting on these courts, but these individuals are the exception, not the rule.)
The ICC Chief Prosecutor, Fatou Bensouda of The Gambia, is also female and has prioritized the development of new strategies in ensuring successful investigations and prosecutions of crimes within the court’s jurisdiction. There is good reason to hope that the current ICC leadership, including Registrar Herman von Hebel of the Netherlands, will all collaborate to build a stronger institution that provides real justice to the victims and creates a solid foundation for international criminal justice.
The ICC Chambers consist of a plenary of 18 judges for the pre-trial, trial, and appeals divisions. Nominations are currently open for states parties to recommend candidates from the Asia-Pacific region to replace the judge from the Philippines who resigned last year. Asia-Pacific for purposes of the Assembly of States Parties include: Fiji; Tajikistan; Marshall Islands; Nauru; Cyprus; Cambodia; Jordan; Mongolia; Timor-Leste; Samoa; Republic of Korea; Afghanistan; Japan; Cook Islands; Bangladesh; Philippines; Maldives; Vanuatu; and Palestine. States parties have until March 31 to nominate a qualified candidate to fill this judicial vacancy.
Meanwhile, despite the constant bad news around the globe, from mass atrocities committed in Iraq and Syria, Ukraine and Gaza, Democratic Republic of the Congo and Nigeria, Sudan and South Sudan—as a handful of examples— Judge Fernandez’s election provides hope for ICC leadership, the future of the court, and international justice.
Until July 2015, Kelly Dawn Askin was senior legal officer for international justice with the Open Society Justice Initiative.