Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity

Overview

The 1993 and 1994 statutes that created the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) broke new ground in international criminal law by recognizing for the first time rape as a crime against humanity in the context of a war tribunal. The Rome Statute, the treaty that created the International Criminal Court in 2002, was seen by many in international law as heralding a new era of international criminal justice and security in which, for the first time in its history, gender-based violence would be acknowledged and punished for its full effect on women in wartime, and would serve to further advance efforts at gender equality for women in the world. The Rome Statute, for the first time in international law, codified violence against women as crimes against humanity, war crimes, and in some instances, genocide.

Though rape and sexual violence in armed conflict had been codified as criminal since 1949 when Article 27 of the Fourth Geneva Convention included rape, enforced prostitution, and indecent assaults as crimes, sexual violence was still not seen as a grave or serious breach of law, and was understood by its enactors as “an attack on honor” (Pruitt, 2012, citing KWO, 2004), implying the criminality of the act as related to men’s property of her. To now classify rape as a victimization of women, not as a social or ego injury to men, was also seen as a huge advance in the early 2000s in furthering women’s human rights.

To classify rape as a victimization of women, not as a social or ego injury to men, was a huge advance in the early 2000s in furthering women’s human rights.

Though many steps have been made toward women’s equality internationally, what remains to be seen is the effect these steps can have in practice in terms of advancing women’s overall human rights, when the international institutions in charge of creating, adopting, and enforcing human rights – the ICC, the United Nations and NATO, to name a few - have historically and universally been male-dominated. While the ICC has attempted to impart a gender-sensitive approach and “mainstream” gender in their recent handling of criminal cases, the way in which institutions formally and informally serve to reinforce the implicit gender norms of their actors can hinder the adoption and application of gender justice unless gender parity is truly achieved.

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This paper discusses the ideas of gendered institutionalism, the formal and informal rules of institutions to adapt to new gender norms or reinforce existing ones. I explore how the lack of adaptation of new norms, in particular with regard to gender parity in representation and employment in these institutions, affects “gender mainstreaming” defined by NATO as “the process of assessing the implications for women and men of any planned action, including legislation, policies and programs, in all areas and at all levels” (Isaksson, p 53). As a result, this lack of adaptation ultimately influences gender justice, particularly in the cases of sexual violence in conflict, peacekeeping, and in systems of transitional justice.

Gendered New and Old Institutions

According to feminist scholars, formal rules in institutions involve rules that are “created, communicated, and enforced through channels widely accepted as official” (Chappell 2014, Helmke and Levitsky 2004) and can involve mandates, company policies, mission statements, and codes of conduct. Informal rules, on the other hand, are the “unwritten” rules that govern the behavior and attitudes, and form the culture of, organizations, involving common practices and norms that can develop over time of how one acts or reacts in certain situations. For example, men may hold informal meetings in pubs and men’s’ clubs that either overtly exclude women from entry or are held and arranged during off-hours when a woman might be putting children to bed.

Another oft-cited euphemism for these informally operating rules would be “old boys’ networks” – entrenched forms of patronage, fraternizing, and nepotism that privileges “favored sons” and excludes women. Feminist scholars assert that, particularly within the masculine-dominant political, legal and diplomatic arena, such norms are structured by gender-biased assumptions inherent to the institution. Chappell (2014) writes, “such gender biases can inhere in formal institutions, through overtly discriminatory rules that ban men and women from participating in certain activities for instance” (p. 184). Azari and Smith, however, contend that “informal institutions exist when shared expectations outside the official rules of the game structure political behavior” (Chappell, 2014, p. 184, citing Azari and Smith, 2012, p. 39).

Formal and informal rules are often coupled and can closely interact. However, in the absence of formal rules, informal rules and norms can fill in the holes as a “backup” policy. Chappelle writes that, in the context of norms, “gender norms may work with or against formal institutions to entrench gender inequalities” (p. 184). Thus, while an institution may have a formal written policy against discrimination, informal norms and understandings about the “way” things are done can counteract this policy to keep the status quo intact. In particular, Chappell and Waylen (2013) write that “gender norms have…proven to be very ‘sticky’” and that “challengers of existing gender logics of appropriateness have often been treated as ‘deviants’ and punished through acts of censure, ridicule, and harassment” (Chappelle and Waylen, p. 603).

Examples can be seen in the discussion of the “glass ceiling” that women have faced in trying to advance their careers. Rudman, Moss-Racusin, Phelan, and Nauts (2012) have identified a backlash effect that agentic female leaders in organizations face when acting against their perceived gender role, in a series of studies that demonstrated the catch-22 that women face: “because their gender status is lower than men’s, they must enact agency to be viewed as ‘fit’ for leadership – yet if they do so, they risk backlash” (p. 175). Such backlash can be viewed as a “dominance penalty,” in such that agency by women is interpreted negatively by men rating their performance.

Rudman and Phelan (2008), citing a study of law firm partners, found that male partners “criticized the female partners for acting like men, rated them as having unpleasant personalities, and viewed their authority as illegitimate, despite high competence ratings” (p. 67, citing Ely, 1994). This penalty serves to reinforce a gender hierarchy that is not uncommon, especially in the world of international politics and security, and current examples are not difficult to find; as a Senator, Hillary Clinton was labeled as “too angry” for criticizing the Bush administration’s foreign policy, but in other contexts, has been labeled as too weak to lead, causing feminists to remark, “if she doesn’t speak out strongly against President Bush, she’s timid and girlie. If she does, she’s a witch and a shrew” (Rudman, et. al, 2008, p. 70, citing Dowd, 2006, p. A21).

Joni Lovenduski (2014) chronicled the well-documented history of sexist backlash in U.K. parliamentary politics, noting that currently women comprise only 22 percent of deputies in today’s legislatures (p. 16). She writes that in the U.K., “female MPs in the House of Commons are often subject to insulting sexist abuse, frequently amplified by subsequent press comment” and notes that “women’s experiences of sexism when they enter public life are pretty much a global phenomenon” (p. 16). Women also face the burden, like members of minority groups, of having to represent their gender as a whole, and “that any of their mistakes will be attributed to their entire group” (p. 19). In an episode in the most recent season of the HBO series Veep, President Sonia Meyer’s chief of staff, Amy Brookheimer, referring to this burden of representation in excoriating her boss’s incompetence, declared, “You have achieved nothing apart from one thing. The fact that you are a woman means we will have no more women presidents because we tried one and she[expletive] sucked!” (Iannucci & Laing, 2015).

The creation of the International Criminal Court was thus seen as a possible avenue to correct and redress the gender disparity in representation that has traditionally been apparent in “old” institutions. Though the ICTY and ICTR were established with a victim-centered and thus an intended gender-sensitive approach, only two out of eleven judges selected to be on the ICTY were women, and the second woman to be elected, Elizabeth Odio-Benito of Costa Rica, was only selected “late in the balloting and after heavy political negotiations” (Hoefgen, 1999, p. 160). As Benito noted, the inclusion of women on the ICTY would be significant and essential to the provision of gender justice. She wrote, “There will be no justice unless women are part of that justice” (cited in Hoefgen, p. 60). ICTY prosecutors at the beginning of the trial of Dragan Nikolic did not think they had sufficient evidence to charge him with gender crimes, causing Benito to “publicly exhort” prosecutors to include gender crimes in the indictment. (Grossman, p. 649). Judge Patricia Wald also notes that five major legal precedents regarding gender crimes were crafted “when at least one woman judge sat on the bench” (p. 649).

It should not be assumed that male judges would not be able to appreciate the severity and injury of the crimes of sexual violence, but that female judges add a unique voice and perspective on sexual assault to the proceedings, as sexual violence is known to affect women in armed conflict in much greater numbers than men, and thus “are privy to crimes of sexual violence unattainable by men” (Hoefgen, p. 160). Notably, the indictment and conviction of the Foca 8 – which charged eight Bosnian Serbs for sixty-two crimes of sexual assault in the Bosnian city of Foca – was the first indictment dealing exclusively with crimes of sexual assault and sexual degradation. It is also notable in that the United Nations, in establishing the ICTY, included a statute, Article 22, that evidenced a gender-sensitive policy of victim and witness protection from humiliation, and that in ruling that witness corroboration of victim testimony would not be required, confirmed a gender-sensitive understanding of the often-private nature of sexual assault. Furthermore, and importantly, Article 22 rejects consent as a defense (though this did not stop some of the defendants from trying to claim it), if coercion or threat was apparent, and does not allow prior sexual conduct of the victim to be presented either, nullifying certain rape myths that discount and discredit many rape victims.

Since the ICTR trials used the same prosecutor as the ICTY, Richard Goldstone, it was assumed that the gains made in terms of gender sensitivity and gender justice would carry over to the ICTR, but these gains were not easy to come by and involved more challenges. The ICTR failed, at the outset, to establish judicial parity, in that Judge Navanethem Pillay was the only female judge amongst the nine elected ICTR judges. This gender disparity would affect the gender-sensitive nature of the prosecution. According to Koomen’s account of the ICTR, during the cross-examination of a witness in the trial of six defendants in what is known as the Butare case, one witness known as “TA” testified that she had been repeatedly gang-raped by militia members and infected with HIV. During her cross-examination, the defense attorney insinuated that she could not have been raped because she smelled badly; according to the media reporting the case, at this remark, the presiding judges “burst out laughing” (Koomen, p. 266), a further humiliation for the victim and clearly an inappropriate and insensitive reaction. Procedures were furthermore not in place to ensure the protection of victims. One witness said that when she returned to Rwanda after the trial, “everyone knew” she had testified about rape at the ICTR, causing her fiancé to leave her, and her house to be attacked.

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The biggest victory at the ICTR in the prosecution of sexual violence, in fact, may not have happened were it not for the further efforts of the one female presiding judge, Judge Pillay. During the trial of Jean-Paul Akeyesu, charged with genocide but not rape, one witness on the stand testified to a rape, causing Judge Pillay to request a postponement of the case in order to further question the witness. This resulted in an amendment of the original indictment against Akeyesu to include rape, and assure the prosecution of sexual violence (Haddad, 2011). For the first time, rape was established as a crime of genocide in case law. Rhonda Copelon (2001) wrote that “the presence of women judges who also had expertise in gender and of the gender legal adviser in the (Office of the Prosecutor) was crucial to the gender advances in two ad hoc (ICTY and ICTR) tribunals” (Copelon, p. 238).

Gender and the Judiciary

Shortly after the Rome Statute was ratified, the statutes of the ICTY and the ICTR were amended to include a sex presentation requirement of tribunal judges. Grossman (2011) wrote that fair and equal gender representation on the bench is an essential component of establishing the normative legitimacy of the court, and that discussions of the Rome Statute amendment drafting “revealed that ignoring these issues might harm States’ perceptions and attitudes towards the court, as well as the court’s credibility and efficacy” (Grossman, p. 651). Acknowledgement of a need to mainstream gender, as well as racial, representation in the judiciary, using the precedence of the Rome Statute amendment, has been seen in State strategic plans, for example, when the South African Department of Justice called for greater representation on the bench for blacks and women; Grossman states that “they recognized that the judiciary should not consist of ninety-seven percent white male judges and expect legitimacy. Justice, in other words, had to be seen to be believed” (p. 651). Furthermore, there as a belief that undermining the legitimacy of the courts, and that “the court will not be competent to do justice unless, as a collegial whole, it can relate fully to the experience of all who seek its protection” (p. 652).

There is a danger in assuming that appointing one female judge to a panel, or having one female representative in court, is sufficient for a gender-sensitive court. However, there is a debate over whether true institutional change can take place without a “critical mass” of female representatives that approaches parity, enough to tip the scales. 

There is a danger in assuming that appointing one female judge to a panel, or having one female representative in court, is sufficient for a gender-sensitive court. However, there is a debate over whether true institutional change can take place without a “critical mass” of female representatives that approaches parity, enough to tip the scales. Furthermore, Patricia Wald (2011), a judge on the ICTY panel and a former judge in DC District Court, wrote that the quality of female judges counts as much as quality, and that judges, both male and female, “have to be recognized as smart, fair and hardworking if they are to wield influence, not only inside the courtroom and among their judicial peers, but also outside the court…that kind of recognition has not always been a given” (p. 402). As demonstrated above, women in organizations have to negotiate their agency with how it is received by the men they work for. The temptation to go along with the majority opinion, instead of opposing it and being alienated by peers or being seen as “hysterical harpies” can be strong. Wald writes that “women judges…also need to be assertive at critical points, though like all judges they must choose their spots carefully. Some countries who come from countries not used to women in judicial roles expect and feel more comfortable with a silent and compliant ally; but this is not what women are on the bench for” (p. 404).

Furthermore, while the ICC empaneled a fair representation of male and female judges, (eight of its sixteen judges are women), it exists to complement national courts when it is unable or unwilling to prosecute offenders in its jurisdiction. Thus, the component of complementarity does not guarantee that national courts will uphold the same parity. Wald writes that “it remains an unanswered question whether this requirement can be met at all in countries – and unfortunately there are many – where there is no real independence for judges” (p. 403), given that there is no international oversight of these courts, where gender hierarchies are still entrenched, and party loyalty and patronage a factor that does not affect the ICC. The result is that, as Ni Aeolian (2014) sees it, “there is little available evidence that lobbying and norm articulation at the international level has intersected with domestic criminal law reform efforts. No obvious organic (or any) relationship exist between the two, indicating processes of legal change that are multidirectional and currently entirely divorced from one another, working to different kinds of compliance incentives” (p. 633). Thus, informal rules in these domestic legal institutions that dictate gender norms have prevailed.

Gender at the UN

Gendered institutionalism also affects the policies and programs of the United Nations, though not in the direction one might expect. The United Nations is seen as leading the call for gender equality as part of a human security strategy in the twenty-first century. Following the legal precedence established by the Rome Statute, and the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by international treaty in 1979, ratified by 189 states in 1981. The CEDAW focuses on and includes articles regarding non-discrimination, sex stereotypes, and sex trafficking; women’s rights in the public sphere with regard to political life, representation, and nationality; economic and social rights of women in regard to education, employment and health; women’s right to equality in marriage and family life, and equality before the law; and establishes the Committee on the Elimination of Discrimination against Women. Resolutions 1325 and 1820, adopted in 2000, broadens the scope of CEDAW application to include parties in conflict, links sexual violence as a tactic in war with the maintenance of international peace and security, establishes the peace and security of women and men under the law, protection of women and girls through the rule of law, and demands security forces and systems protect women and girls from gender-based violence. Notably, it mandates UN Member States to engage women in all aspects of peacebuilding, and all levels of decision-making on peace and security issues, and requires member states to set in place mechanisms to fully realize women’s rights.

Feminist scholars have noted that, while the CEDAW and its subsequent Resolutions are important steps for the cause of gender equality, there arises a certain inherent hypocrisy from its requirements of gender representation and the involvement of women in all aspects of decision-making on security issues. The UN, since its charter, has been, by and large, “the world’s largest men’s club” (Haack, p. 43, citing Kirschenbaum, ), and has not made the attempt to achieve gender parity or fair representation in its own leadership structure. Kirsten Haack (2014) writes that, while the UN has committed to achieving gender parity within its own institution by 2030, “the UN has paid more attention to women’s issues in member states than inside its own organization. The UN has not always led by example where gender equality and women’s rights are concerned” (p. 38). Haack notes that, when it comes to questions of candidacy for leadership positions, regional representations take precedence over gender mainstreaming, and that UN leadership routinely ignores the contributions of women political science researchers, and that “where global dimensions have been of interest, the primary focus has been on the global institutional architecture of women’s rights and protection, or the role of women as aid recipients or subjects to the attainment of UN goals, not as leaders in global governance” (p. 39).

Instead of making gender mainstreaming a focus of its organization, women making their careers with the UN are often siloed into groups which fit the roles which traditional gender norms dictate they be in that concern education, health, welfare, women and children, and human rights issues, which Haack refers to as “glass walls” (p. 51). However, while the 1995 Beijing Platform for Action called upon the UN Secretary General “to develop and implement employment strategies aimed at achieving gender equality by 2000” (p. 42) through the implementation of quotas, these strategies have often been sidelined in practice. According to WomenWatch, a UN tool for collecting employment data to monitor the implementation of gender quotas, parity has only been achieved at the lowest level of the professional ranks of the UN, while change at the upper managerial and professional levels has been much slower. While thirteen UN agencies have had at least one woman leader, fourteen agencies “remain gentleman’s clubs, never having had a woman leader” (p. 44).

These gentleman’s club agencies also follow a gendered pattern, focusing on “hard” issues such as industry, trade and economic issues, science and technology, and sovereignty and military issues, law, criminal justice, and labor. Haack also notes that appointments to higher positions for women are much more likely to take place close to elections, “when the symbolic importance to appoint women is greater” (p. 45), while the pressure is reduced midterm. This threatens the perceived legitimacy and competency of the women appointed to leadership positions, as they are seen as “token” hires to serve the political needs of Secretary-General’s office. Gallagher (1997) furthermore notes that “relatively few women have been appointed or elected to serve on the mainstream treaty bodies or as investigators, researchers, or consultants” (p.293).

The insurance of gender justice doesn’t end when defendants are convicted and gender parity in the judiciary and the human rights field assured. Peacekeeping missions must also be mainstreamed with gender in play to ensure the safety of women in the field.

Gender in Peacekeeping and Security

In 2000, the UN Security Council adopted UNSCR 1325, which recognized the disproportionate impact that conflict and wars have on women and children, and recognizes the historic exclusion of women from the peace and post-conflict negotiating table. In promoting the implementation of UNSCR 1325, Charlotte Isaksson (2014) called upon security sector actors like NATO to integrate a gender mainstreaming approach to ensure the equal participation of women at all levels of post-conflict reconstruction, peace, and security. In identifying sexual violence as a security threat for NATO to address, she writes that, “like traditional weapons, sexual and gender-based violence can be used by leaders to achieve political, military and economic ends, and it destroys the very fabric of society” and that the long-term effects of it “have major implications for the likelihood of sustainable peace” (p. 56). She calls upon NATO to address sexual and gender-based violence in its peacekeeping missions, but also notes the particular challenges NATO faces as an institution in integrating a gender mainstreaming perspective.

Isaksson states that, while the positions of gender advisors have been created at all levels, “there is a perceived gap between the spoken commitment to gender mainstreaming and the resources actually in place” (p. 54), with one of the obstacles identified as the filling of vacant positions with the reluctance of qualified candidates to come forward and apply for these positions, which Isaksson identifies as “unattractive” and “without strong support from their commanders,” (p. 55) which speaks to the prevalence of an informal rule of traditional gender norms which makes identifies the position of gender advisor as soft, feminine, and secondary in importance in a male-dominated organization like NATO; Isaksson writes that “many times they also need to fight the perception that a narrow focus such as gender should not command so much influence in the staff processes” (p. 55). Isaksson notes that the militaries from which NATO hires its forces exclude women from combat roles and promote a “boys will be boys” attitude towards sexual discrimination and gender violence, but also feels that this attitude is “slowly changing” (p. 59). Still, addressing gender parity in NATO is a significant obstacle when military experience and particularly combat experience is a requirement of the job, and that one of the reasons why institutional change fails is a “neglect of the organization’s culture. In a military organization…a change process can be perceived as a threat to their positions, or the proposed change can change existing values and culture” (p. 62).

Anita Schjolset (2013) notes that there is considerable variation on the number of women in NATO forces, with the numbers slowly increasing. Notably, though it does not (technically) allow females into combat positions, the United States has consistently offered the highest number of female personnel, at 15.5 percent, in 2007; as of 2011, the Czech Republic had the highest number of female forces, at 13.6 percent, of the reporting countries (the U.S. did not report). Schjolset also reports substantial variation in their deployment in field missions, and much is still unknown statistically on the role placement and usage of female personnel. Noting these disparities, NATO put forth, in 2008, best practices to address the gender imbalance in NATO operations, including the following critical steps to integration of the gender perspective into employment: using a moderate quota system, regulating the physical fitness criteria for the selection of men and women, information campaigns to promote the development of military careers for women and ways of combining a professional and family life for both men and women; balancing the gender composition of Recruitment and Selection boards; establishing minimum target numbers for recruitment and education selection for women; legal equality; establishing a committee responsible for issues of military and civilian women; promotion of gender awareness training, and including gender issues and UNSCR 1325 in all mission-specific pre deployment training, family support and work-life balance initiatives, attention to the mixed composition of teams, and encouraging the participation of female personnel in operations abroad (Committee on Women in the NATO Forces, 2008).

There is also a significant gender imbalance in UN Peacekeeping personnel that needs to be addressed – women account for less than 4 percent of UN peacekeeping personnel. Crawford, Lebovic and MacDonald (2015) proposed two explanations that possibly account for the lack of women in UN peacekeeping missions: the political orientation of the participating government, and that government’s relationship to international institutions that affects its participation in UN missions as a whole. Crawford notes that democratic governments, “given their legitimizing principles, domestic protections and agendas, and normative predispositions, strive for greater gender diversity in their police and military units, which will carry into international missions” (Crawford, et.al, p. 258). Furthermore, a government might contribute female personnel in order to be seen as complying with a gender equality mandate – “a country can signal its deference to gender equality to domestic and foreign audiences” (p. 258). Crawford, et. al also identify factors that may have a deterrent effect on the contribution of female peacekeepers – “the relatively low level of women in national militaries and domestic policies prohibiting women from serving in combat” (p. 275) because there is a notable lack of women in operations requiring a large troop presence and potential combat involvement.

Crawford et. al also theorize that once norms promoting gender parity achieve a “critical mass” with states, a cascade effect will take place that will encourage greater female participation, but also note that “norm change takes place over long periods of time and the call for female peacekeepers is still relatively new” (p. 276).Continued on Next Page »