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INTRODUCTION
INTERNATIONAL LAW & PRACTICE: SYMPOSIUM ON THE EFFECT
OF INTERNATIONAL JUDGES’PERSONAL CHARACTERISTICS ON
THEIR JUDGING
The effects of international judges’personal
characteristics on their judging
Gregor Maučec1*and Shai Dothan2
1Assistant Professor of International and Criminal Law, New University Faculty of Government and European Studies,
Žanova ulica 3, SI-4000 Kranj, Slovenia, Email: gregor.mauchec@gmail.com and 2Associate Professor of International and
Public Law, Jean Monnet Chair in EU law & Politics, University of Copenhagen Faculty of Law affiliated with iCourts –
the Centre of Excellence for International Courts and Study Hub for International Economic Law and Development
(SHIELD), Karen Blixens Plads 16, Room 6B-4-33, 2300, Copenhagen S, Denmark, Email: shai.dothan@jur.ku.dk
Abstract
This Symposium Issue looks at how personal traits of international judges matter in their judging. The
articles selected shed light on the ways that international judges’personality, that is, their character differ-
ences and personal backgrounds, shape, control, or modify their conduct and their rulings. The articles in
the Symposium reveal that individual international judges have different personal attributes and identities
that affect: (i) different aspects of judicial reasoning, problem-solving and case management; (ii) the ways
judges interact, deliberate and affect each other in collectively deciding cases; and (iii) the outcomes of
international trials. This Symposium, therefore, looks beyond the traditional ‘legal formalistic’understand-
ing (prevalent also among international judges themselves) that judges –as impartial, rational, and
mechanical decision-makers –simply apply existing, recognized rules or principles of law to the facts
and questions before a court in the context of concrete cases without regard to any personal leanings
and biases. It examines how and to what extent judges at international courts make their choices condi-
tioned on their personal identity characteristics, and when such characteristics exhibit greater or lesser
effects on their decision-making.
Keywords: international judges; international judicial behaviour; judicial deliberations/decision-making; judicial impartiality/
biases; personal characteristics
1. Introduction
The belief that it is not acceptable for a judge to allow their personal backgrounds to sway their
decision in favour of, or against, parties before the court is shared by most judges, including those
*This article is part of Gregor Maučec’s‘INCRICO’project, which has received funding from the European Union’s
Horizon 2020 research and innovation programme under grant agreement No 746768. This research is funded by the
Danish National Research Foundation Grant No. DNRF105 and conducted under the auspices of iCourts, the Danish
National Research Foundation’s Centre of Excellence for International Courts.
This symposium issue brings together the papers presented and discussed at the conference ‘How Personal Characteristics
of International Judges Affect Their Rulings: Socio-Legal Perspectives’that we co-organized at iCourts, University of
Copenhagen on 26 August 2020. We thank Lee Epstein, Mikael Rask Madsen, Erik Voeten, Gleider Hernández, Loveday
Hodson, Urška Šadl, and Veronika Fikfak for participating in this conference and for their valuable comments.
© The Author(s), 2022. Published by Cambridge University Press on behalf of The Foundation of the Leiden Journal of International Law in
association with the Grotius Centre for International Law, Leiden University. This is an Open Access article, distributed under the terms of the
Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and
reproduction, provided the original article is properly cited.
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on international courts. But do international judges really interpret and apply international legal
norms, find facts, and rule on cases similarly, thus arriving at identical factual and legal conclu-
sions irrespective of their personal backgrounds?
As Lee Epstein and Jack Knight note in this volume,1a small but growing body of literature in
the field of legal decision-making that examines the relationship between personal characteristics
and judging does not support the above opinion of judges. These studies have indeed found some
minor differences –dependent on personal backgrounds and biographies of individual judges –in
judicial decision-making on both domestic and international courts, with these differences mostly
limited to specific contexts where the personal characteristics considered were particularly salient.
There is, however, no clear-cut evidence that international judges systematically employ any dem-
ographics or background-related biases in their judging. Adopting legal, sociological, and political
science perspectives on how international judges’personality, that is, their character differences
and personal backgrounds shape, control, or modify their conduct and their rulings, this
Symposium focuses on how judges on international courts do engage in judicial decision-making,
rather than assuming how international judges approach and carry out their judicial business, or
considering how they should engage in judging. The central idea of this socio-legal approach is
that individual international judges have different personal attributes and identities that affect:
(i) different aspects of judicial reasoning, problem-solving, and case management; (ii) the ways
judges interact, deliberate, and affect each other in collectively deciding cases; and (iii) the out-
comes of international trials. Our aim is to explore how these identities and demographic char-
acteristics of international judges operating on both individual and group levels contribute to their
decision-making and accordingly affect their impartiality.
From the International Court of Justice (ICJ), the World Trade Organization Appellate Body,
international human rights courts –including the European and the Inter-American Courts of
Human Rights (IACtHR) –courts of regional integration agreements, such as the Caribbean
Court of Justice (CCJ), to international criminal tribunals, our authors look closely at how indi-
vidual traits and personal experiences of international judges potentially affect their attitudes,
preferences, and choices on the international bench. Through empirical studies, qualitative data
analysis, detailed literature review, and theoretical interventions, we see the multitude of ways in
which personal characteristics of international judges affect their behaviour and the outcome of
international judicial proceedings.
This Introduction proceeds in three parts: In the next section, we explain the personal char-
acteristics that are usually found in the existing studies on the international judiciary and discuss
their impact on international rulings. This description of international judges’personal back-
grounds and their influences is followed by an overview of judicial behaviour literature in inter-
national law that examined how certain personal characteristics operate in relation to judges
taking part in the international legal process. As we shall see below, this body of literature has
grown considerably in the past few years, especially as regards researching how international
judges’past roles and identities (notably gender, nationality and religion) affect their judging.
However, the literature on the potential role of other personal experiences and characteristics
of international judges in their judging (such as race/ethnicity, age, gender identity/sexual orien-
tation and socio-economic status) remains scarce, suggesting ample opportunities for scholarship.
Finally, we turn to introduce the Symposium and explain its contribution to the literature on inter-
national judicial behaviour.
1L. Epstein and J. Knight, ‘How Social Identity and Social Diversity Affect Judging’, in this issue, doi: 10.1017/
S0922156522000395.
2 Gregor Maučec and Shai Dothan
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2. What are personal characteristics, and how do they affect international judging?
Personal characteristic is an identifiable and objective attribute or status, by which individuals or
groups are distinguishable from one another. Identity of international judges –specifically, demo-
graphic factors –is one possible way in which judicial attitudes might affect the act of judging,
including in international courts. The list of personal characteristics of particular importance for
our Symposium articles includes gender, national origin, religious belief, age, as well as career
experience and education. Below we define each of these characteristics and undertake to give
an overview of what we know about the influence of judges’personal backgrounds on interna-
tional judicial behaviour and international rulings. In the context of national courts, the research
into this subject –apart from judges’career paths and partisanship –is of more recent origin and
mostly focuses on the role played by increasingly diverse judiciary and its importance for the
courts’substantive decision-making and for the legitimacy of courts and their rulings.2This rela-
tively new literature can be summarized into four basic theories that help explain why judges with
different personal attributes and backgrounds might reach different sorts of conclusions.
The first theory is mostly applicable to the judges’gender, although it can be used –in different
contexts –for other personal attributes of judges as well. This theory suggests that female judges or
judges of ethnic, religious, and other minority backgrounds bring different voices and perspectives
to trials and judicial decision-making –especially in cases involving such backgrounds –than, for
example, male and/or white judges who historically dominated the legal system and the judicial
profession.3According to this theoretical view, white male judges’opinions are masculine, thus
favouring logic and justice, while female or non-white judges’voices are more committed to ‘obli-
gations, relationships, and problem solving through personal communication’.4
A second theory on the relationship between the judges’personal attributes and judging is
information-based and posits that the prediction that judges with different backgrounds will rule
differently on cases arises from different and unique knowledge, expertise, and experience that
non-white/non-male judges bring to the bench.5This specific knowledge and experience comes
to the fore, particularly in cases or issues pertaining to race, ethnicity, gender, religion or any other
relevant background of such judges.
A third theoretical approach draws on an ‘in-group bias (favouritism)’argument and entails
that female judges or judges who belong to national, racial, ethnic, religious, and other minority
groups seek to promote the interests and policy preferences of their own group,6thus making
substantially different decisions and reaching different conclusions than their colleagues as
non-members of such groups.
A fourth theory that can be resorted to in seeking to better understand the effects of judges’
personal characteristics on their behaviour and rulings is social background theory. This theoret-
ical approach to judicial decision-making accounts specifically for the fact that judges are a prod-
uct of their identities and experiences. As a result, this theory treats personal attributes and
experiences of judges as an explanation for their actions.7
Given that all of the international courts studied as part of this Symposium are collegial by
nature, and as such, may sit in smaller or larger panels/chambers (including en banc), due regard
should also be paid to ‘panel effects’. The idea of panel effects implies that judges might not only
2Ibid.
3A. Harris and M. Sen, ‘Bias and Judging’, (2019) 22 Annual Review of Political Science 241, at 247.
4C. L. Boyd, ‘Representation on the Courts? The Effects of Trial Judges’Sex and Race’, (2016) 69 Political Research
Quarterly 788, at 789.
5Ibid.
6Ibid.; C. Holst and S. A. Langvatn, ‘Descriptive representation of women in international courts’, (2021) 52 Journal of social
philosophy 473.
7T. George and T. Weaver, ‘The Role of Personal Attributes and Social Backgrounds on Judging’, in L. Epstein and
S. Lindquist (eds.), The Oxford Handbook of U.S. Judicial Behavior (2017), 286.
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reach different conclusions as a result of their different personal characteristics but also influence
the choices and opinions of other panel members.
In the following sections, we introduce these characteristics of international judges and explain
how each of them affects their decision-making.
2.1 The effects of judges’gender
The term ‘gender’is sometimes confused with the term ‘sex’, or the two notions are used inter-
changeably. In legal discourse, the expression ‘sex’is typically used to describe the individual or
group’s biological and physiological reality, that is, genetically determined characteristics and dif-
ferences that define men and women, such as average differences in physical strength or differ-
ences related to pregnancy. The word ‘gender’, however, refers to ‘social’differences between
women and men –the differences that can be classified as socially constructed rather than bio-
logical in nature. ‘Gender’is, thus, used for categories of feminine and masculine roles, behaviours,
activities, and attributes assigned to men and women/boys and girls. Good examples of such a
social reality of ‘gender’learned through the process of socialization are differences between
men and women, boys and girls, between men and between women, between parent and child
and so on.8For our purposes, the gender effects on international adjudication primarily concern
the question of how biological differences and social constructs of male and female roles, and the
different experiences they lead to, affect international judicial processes.
Gender is the personal characteristic that has attracted most interest in the literature on inter-
national judges and their behaviour at international courts, being also of substantial institutional
interest. There has been a rapidly growing number of studies –including empirical ones –on
whether and how judges’gender might matter in both appointing these judges to international
courts as well as in their judging at these courts. These studies have focused on a specific inter-
national court or compared several international courts (working in the same issue areas or across
different subject areas).9
2.2 The effects of judges’nationality
According to the definition contained in Article 2(a) of the 1997 European Convention on
Nationality, ‘nationality’is a purely legal and objective concept. It refers to a specific legal
bond or relationship between an individual and a state which is recognized by that state
and is, as such, based on the nationality legislation valid in a given state. The nationality
of a specific person can thus be established on the basis of such legislation. In that sense,
the term ‘nationality’can be considered to be synonymous with ‘citizenship’,butshould
be distinguished from the individual’s‘ethnic origin’.10 Along similar lines, the ICJ defined
the concept of nationality in Nottebohm as ‘a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties’.11
8D. Schiek, L. Waddington and M. Bell, Cases Materials and Text on National, Supranational and International Non-
Discrimination Law (2007), at 70–1.
9N. Grossman, ‘Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?’, (2012) 12 Chicago
Journal of International Law 647; S. Hennette Vauchez, ‘More Women –But Which Women? The Rule and Politics of Gender
Balance at the European Court of Human Rights’, (2015) 26 EJIL 195; F. Ní Aoláin, ‘More Women –But Which Women?:
A Reply to Stéphanie Hennette Vauchez’, (2015) 26(1) EJIL 229; N. Grossman, ‘Achieving Sex-Representative International
Court Benches’, (2016) 110 AJIL 82; several chapters in F. Baetens (ed.), Identity and Diversity on the International Bench:
Who is the Judge? (2020); E. Voeten, ‘Gender and judging: evidence from the European Court of human rights’, (2021) 28
Journal of European Public Policy 1453; J. L. Corsi, ‘Legal justifications for gender parity on the bench of the International
Court of Justice: An argument for evolutive interpretation of Article 9 of the ICJ Statute’, (2021) 34 LJIL 977.
10Explanatory Report to the European Convention on Nationality ETS 166, at 22–3.
11Nottebohm Case (Liechtenstein v. Guatemala), (second phase), Judgment of 6 April 1955, [1955] ICJ Rep. 4, at 23.
4 Gregor Maučec and Shai Dothan
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The analysis of the effect of national identity on international judicial decisions has a long ped-
igree, in part because of the very nature of international courts being composed of judges of
diverse nationalities. Legal and political science research has shown that judges on international
courts, such as those of the ICJ and the ECtHR display national (home-state) bias in their indi-
vidual opinions and rulings, exhibiting a more lenient attitude towards their home states than
toward others.12 This literature has also found that international judges who previously served
as diplomats evince more national bias than international judges who did not have previous
careers as diplomats.13
2.3 The effects of judges’religion or belief
The notion of ‘religion’or ‘belief’covers any religion, religious belief, or similar philosophical
belief. It is evident from the relevant international legal texts and case law (especially those relating
to the freedom of religion and belief) that the concept of religion extends to all existing and rec-
ognized religions and faiths. For the purposes of studying international judicial behaviour, it is not
necessary that an international judge is a member of a certain religious group, community or
denomination that is officially recognized by the national authorities. Instead, fulfilment of some
general criteria –such as public recognition and common opinion as to the religious character of
such a group, community or denomination –will suffice.14 Although the two notions –‘religion’
and ‘belief’are to some extent similar, there is an important difference between them as to the
existence of a divine being, deity or God. Indeed, this element of divinity is an essential part of the
definition of ‘religion’, whereas it is expressly omitted in the definition of ‘belief’. Accordingly,
belief can be defined as a ‘coherent set of fundamental ideas and attitudes to life and human exis-
tence, without reference being made to a higher being’.15
As with some other personal characteristics, an individual judge’s religious belief might often
not be known unless they confess their faith or openly talk about it. Likewise, an international
judge’s religion or lack of religion might come to the fore in particularly sensitive human rights
litigations touching upon controversial moral questions of human life and death such as abortion
and euthanasia as well as those concerning LGBT rights issues. Some studies have, thus, looked
into the possible role of religion in selecting/appointing international judges, but also in interna-
tional human rights adjudication,16 notably in the freedom of religion matters and cases involving
a complex relationship between women’s human rights and religion (for example, abortion
rights).17 Other contributions have considered whether there is a religious diversity gap on the
international bench and justifications for the promotion of such diversity among international
judges, including the enhancement of the international courts’normative legitimacy, fight against
systematic religious discrimination and the ‘value-added’argument.18 Furthermore, one study also
12I. Ro Suh, ‘Voting Behavior of National Judges in International Courts’, (1969) 63 AJIL 224; M. Kuijer, ‘Voting Behavior and
National Bias in the European Court of Human Rights and the International Court of Justice’, (1997) 10 LJIL 49; E. Posner and
M. de Figueiredo, ‘Is the International Court of Justice Biased?’, (2005) 34 Journal of Legal Studies 599; E. Voeten, ‘The Impartiality
of International Judges: Evidence from the European Court of Human Rights’, (2008) 102 American Political Science Review 417;
S. Dothan, ‘The Motivations of Individual Judges and How They Act as a Group’, (2018) 19 German Law Journal 2165; C. Titi, ‘The
Identity Conundrum: Legitimacy and Doubt on the International Bench’,inBaetens,supra note 9.
13F. J. Bruinsma, ‘Judicial Identities in the European Court of Human Rights’, in A van Hoek et al. (eds.), Multilevel
Governance in Enforcement and Adjudication (1996).
14Schiek, Waddington and Bell, supra note 8, at 105–8.
15Ibid., at 117–18.
16S. B. Bossa and G. L. Dossan, ‘Ethnicity, Religion, and Diversity at the International Criminal Court: Is More Too Much?’,
in Baetens, supra note 9.
17D. Koev, ‘Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom
of Religion Cases’, (2019) 18 Journal of Human Rights 184; K. Hessler, ‘The Significance of Religious Diversity in International
Human Rights Adjudication’, in Baetens, ibid.
18D. M. Bigge, ‘Justifications for the Promotion of Religious Diversity on the International Bench’, in Baetens, ibid.
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surveys individual (separate and dissenting) opinions by ICJ judges looking therein for religious
text citations to establish whether these judges incorporate their religious identity in their
judging.19 Nevertheless, much more in-depth research remains to be done to truly assess the
impact of religion/lack of religion on international judging, such as whether religious international
human rights judges are more willing to support claims of religious liberty than their less devout
or irreligious colleagues.
2.4 The effects of judges’age
The concept of ‘age’is contained or referred to in many international and national legal instru-
ments (especially those prohibiting discrimination on the grounds of age), but these legal docu-
ments scarcely provide any definition of this notion, nor do they give any explanation of the
meaning of ‘age’. Indeed, the meaning of ‘age’would seem to be self-evident also in relation
to international judges, as it would simply seem to refer to distinctions between younger and older
judges. A central variable in this context is chronological age, defined as ‘the time that has passed
since the birth of an individual’.20 Chronological age, in our case, can be used to indicate the stage
to which an individual international judge (or a group of international judges) has progressed in
the ageing process and to determine whether a particular international judge is, for instance, part
of the group of older international judges. However, particular issues arise in respect of age as a
personal characteristic that distinguishes age from other personal attributes. Given the fluid and
indeterminate nature of age groups, individuals do not remain fixed within particular groups, and
age-based assumptions by others about individuals of particular ages often change. Likewise, an
individual judge’s age alters over time, meaning that she may have different goals, expectations,
and relationships with fellow judges during the course of this process.
Most international judges are in the later stages of their careers, aged between 50 and 70.21 In
recent years, however, a moderate trend towards nominating/appointing/electing younger judges
(in their thirties or early forties) to certain international courts, especially those operating in
Europe (such as the European Court of Human Rights (ECtHR)) can be observed.22 Although
this may be perceived as an asset for some international courts –given that younger international
judges can bring some new perspectives into judicial decision-making at these courts, different
world views and convictions, as well as different kinds of sentiments concerning key issues –their
presence on the international bench may also raise concerns about their judicial independence
associated with the prospects of their further employment within their national government.23
This may become particularly problematic at international courts to which judges are appointed
for non-renewable term of service (such as the ECtHR), especially in the later years of the younger
judges’term. There is normally no such issue with older international judges who, following their
international judicial service, often retire or return to an academic position. Against this backdrop,
one recent contribution only briefly discusses, in the context of the judicial diversity at the ECtHR,
international judges’age as one of the relevant factors influencing their world views and person-
alities, as well as its effects on the international judicial process and rulings.24 Beyond this study,
the literature on the relationship between international judges’age and their judging is rather
19M. A. Waseem, ‘Citing Religious Texts in Individual Opinions to Judgments of the International Court of Justice: Do
Judges Incorporate Their Religious Identity in Judicial Decision-Making?’,inibid.
20A. R. Schwall, ‘Defining Age and Using Age-Relevant Constructs’, in W. C. Borman and J. W. Hedge (eds.), The Oxford
Handbook of Work and Aging (2012), 169.
21L. Swigart and D. Terris, ‘Who are International Judges’, in C. P. R. Romano, K. J. Alter and Y. Shany, The Oxford
Handbook of International Adjudication (2014), at 625.
22Ibid.
23Ibid.
24F. Baetens and A. Nußberger, ‘Diversity on the Bench of the European Court of Human Rights: A Clash of Paradigms’,in
Baetens, supra note 9.
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limited, thus leaving open questions of whether, for example, older international judges are more
likely than their younger colleagues to rule in favour of age discrimination claims, or whether they
are more likely to issue dissents, or whether they are more predictable in their decision-making at
earlier rather than later points in their international judicial careers.
2.5 The effects of judges’professional experiences and education
Professional roles and backgrounds of international judges is another relevant personal category
whose effects on their judicial behaviour and rulings can be a particular subject of socio-legal
inquiry. This category includes international judges’education, training, field of legal expertise
or specialization and previous career experience involving a wide variety of professional back-
grounds –ranging from former international judges, diplomats, government agents and other
civil servants, representatives of international or regional organizations, academics and law pro-
fessors, national career judges, private practitioners and practising lawyers, to politicians with
hardly any legal knowledge or experience and even NGO employees. Most international judges
have experience in more than one of these professional tracks, with some of them having careers in
which their commitments have been so varied that it is impossible to neatly classify them into
different professional roles.
As regards international judges’education and training, most of them hold their first degrees in
law from their countries of origin. A few international judges from smaller nations, however,
received their second or third degree overseas. Many international judges also have degrees out-
side strictly legal studies, including political science, economics, public administration and even
philosophy.25 Against this backdrop, it cannot be assumed that all international judges, regardless
of their professional backgrounds and formation, approach the cases before them in exactly the
same manner. A starting point in working on a case will arguably vary depending on an individual
judge’s professional background: while a former practising lawyer on the international criminal
bench or international human rights bench will tend to assess the cases through the lens of the
defendant/the victim, a career judge will build on her extensive national judicial experience, and a
former law professor will most likely focus her attention on what she deems to be the most impor-
tant or challenging legal question in a case at hand. Likewise, career judges on the international
criminal bench will be more versed and experienced to efficiently run international criminal trials
than, for example, ex-academics or ex-diplomats without any prior judicial experience. All this
suggests that judges from different backgrounds will be preoccupied with different aspects of
problem-solving, legal reasoning, and case management,26 and that an international judge’s pro-
fessional experience and education will have an impact on the way she considers cases on her desk
and runs trials.
The role that professional and educational backgrounds of international judges play in their
judging has attracted a great deal of scholarly attention.27 Previous research, as well as Maučec
and Dothan’s article in this Symposium, have shown that international judges’prior identities
and expertise tend to carry over into their new roles on the international bench and are decisive
factors in their judicial decision-making.28 For example, Maučec and Dothan argue in their article
that, according to the interviewed ICC judges, international criminal judges who are former dip-
lomats or academics would, as a rule, dissent less than former professional judges. Focusing on
dissenting judicial behaviour on the ICC bench, interviews with ICC judges moreover suggest that
these judges find their colleagues’professional backgrounds more important than any other of
25Supra note 21, at 626.
26E. Voeten, ‘International Judicial Behavior’, in Romano, Alter and Shany, supra note 21, at 566.
27Posner and de Figueiredo, supra note 12, at 608; Voeten, supra note 12; Baetens and Nußberger, supra note 24, at 484–6.
28G. Maučec and S. Dothan, ‘Judicial Dissent at the International Criminal Court: A Theoretical and Empirical Analysis’,in
this issue, doi: 10.1017/S0922156522000103.
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their traits and identities, even national backgrounds.29 Similar findings can be gleaned from inter-
views with judges in different international courts.30
2.6 The effects of other personal characteristics of judges
Other characteristics such as race/ethnicity, gender identity/sexual orientation or socio-economic sta-
tus of international judges, too, are potentially important but thus far unexplored, either because there
are few judges who identify as having those characteristics or because data on those characteristics are
limited or unavailable. Yet, the specific influences of these other identity factors on international judg-
ing deserve to be scrutinized as well. For example, as of our writing, no research has examined legal
decision-making and voting behaviour of LGBT judges at international criminal and human rights
courts, despite the importance of sexual violence and LGBT rights–related cases reaching these courts.
Similarly, research that considers the relationship between race/ethnicity and judicial decision-making
at international courts, in particular empirical studies demonstrating that race/ethnicity of interna-
tional judges can shape or predict the international judicial outcomes in limited kinds of cases, is still
lacking. As Lee Epstein and Jack Knight note, it is much more challenging to come up with any quan-
titative analysis for categories such as race or ethnicity on the international benches, for there is a lack
of disaggregated data on such personal characteristics of international judges.31 The questions such as
whether black judges on international criminal tribunals are inclined to treat black defendants more
leniently or whether white judges display a less favourable attitude towards black defendants as com-
pared to white defendants are yet to be researched.
2.7 The effects of judges’multiple and intersecting identities
International judges are people with differing backgrounds and identities. Each of them has a
certain age, gender, ethnic and social origin, nationality, sexual orientation, religion or belief
system or a lack of it, and so on. Hence, the effects of international judges’personal character-
istics on their judging should also be studied from the perspective of the specific impact that two
or more such characteristics –operating either separately or in interaction with each other at the
same time –have on international judicial decision-making. We can note a small but growing
literature that focuses on international judges who are women of colour, notably African female
judges, and the obstacles they face on their paths to the international bench and throughout
their international judicial career, including double discrimination on the grounds of both their
gender and race.32 Beyond these studies, questions such as when one identity of an international
judge over others is likely to be triggered because it may be particularly salient to the case at
hand, or what the combined effects are of international judges’multiple and intersecting iden-
tities on their behaviour and rulings remain largely unexplored. No study has directly addressed
international judicial decision-making through the lens of intersectionality. Research focusing
on intersectionality may thus explore whether, for example, non-white religious female judges
on the international criminal bench are more likely to rule in favour of black criminal defend-
ants than white male atheistic judges and similar intersectionality-driven questions.
29Ibid.
30D. Terris, C. P. R. Romano and L. Swigart, The International Judge: An Introduction to the Men and Women Who Decide
the World’s Cases (2007), at 64.
31Supra note 1.
32R. E. Badejogbin, ‘African Women’s Paths to the International Bench: How to Overcome the Hurdles’, in Baetens, supra
note 9; J. J. Dawuni, ‘African Women Judges on International Courts: Symbolic or Substantive Gains?’, (2018) 47 University of
Baltimore Law Review 109; A. Kuenyehia and J. J. Dawuni, African Women Judges on International Courts: Untold Stories
(2017).
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3. This Symposium
This special issue contains four articles presented and discussed at the conference “How Personal
Characteristics of International Judges Affect Their Rulings: Socio-Legal Perspectives”. The
Symposium begins with an article that reviews the literature on the effects of social identity
and social diversity of judges on their judging at national and international courts.33 Lee
Epstein and Jack Knight note that this literature can be divided into two different strands of
research: one focusing on the social identity of individual judges and producing outcomes in line
with in-group bias, and the other arguing that socially diverse courts where judges deliberate and
rule in panels/chambers can generate judicial decisions and rulings that enjoy a higher level of
quality and normative legitimacy in the eyes of stakeholders and the wider public than those ren-
dered by collegial courts with no or very little judicial diversity. As well as surveying the relevant
literature, an important added value of this contribution is that it offers some guidance and iden-
tifies possible avenues for further research on these topics.
In the next contribution, Loveday Hodson looks at a prominent issue of women’s underrepre-
sentation on international benches by investigating why international judges’gender matters in their
judging.34 Drawing on a claim that a lack of female judges in international judicial institutions results
from and, at the same time, contributes to gendered operation of these courts and gendered nature
of the judicial role, Hodson argues for pursuing a ‘transformative equality’approach to addressing a
disproportionately low number of female international judges. Approaching this subject from such a
‘transformative’perspective, she contends, holds a significant capacity to effectively challenge and
transform the norms and structures of power predicated on deep-seated, pervasive and subtle
gender-related inequalities in international legal institutions and processes.
As a valuable sociological intervention, the next article by Salvatore Caserta and Mikael Rask
Madsen examines the effects on judgments through a combination of international judges’indi-
vidual traits and their collective behaviour.35 Relying on a sociologically inspired structural theory
of judicial behaviour and applying a modified concept of ‘international judicial habitus’to the CCJ
context, Caserta and Madsen explain how, as a matter of fact, international judicial behaviour and
practices are ‘double-structured’.
The last contribution in this Symposium analyses the law and practice of judicial dissent at the
ICC, combining a theoretical and an empirical approach.36 Gregor Maučec and Shai Dothan draw
on qualitative data derived from interviewing ICC judges to demonstrate that –according to the
judges’own perceptions and experiences –some of their personal identities (their personalities,
career experience, and areas of expertise) do matter when it comes to the questions of why and
when individual international criminal judges dissent. Linking these empirical findings to the the-
ories of judicial dissenting behaviour, Maučec and Dothan conclude that career criminal judges
turned ICC judges can be considered ‘postpositivist legalists’,or‘attitudinal’ICC judges, as they
are more inclined to issue their dissent in case of disagreement within a trial chamber than judges
with other backgrounds. Conversely, former diplomats, international judges and academics who
specialize in public international law can be labelled ‘strategic’ICC judges since they expressed a
disinclination to use judicial dissent. With these findings, Maučec and Dothan bring new insights
also more broadly into the area of dissent and judicial decision-making in international law.
33See generally, supra note 1.
34See generally, L. Hodson, ‘Gender and the International Judge: Towards A Transformative Equality Approach’, in this
issue, doi: 10.1017/S0922156522000462.
35See generally, S. Caserta and M. R. Madsen, ‘International Judicial Habitus as Double Structuration: A Structural
Approach to Explaining International Adjudicative Practices’, in this issue, doi: 10.1017/S0922156522000486.
36See generally, supra note 28.
Cite this article: Maučec G and Dothan S (2022). The effects of international judges’personal characteristics on their judging.
Leiden Journal of International Law.https://doi.org/10.1017/S0922156522000577
Leiden Journal of International Law 9
https://doi.org/10.1017/S0922156522000577 Published online by Cambridge University Press
