Başak Etkin joins JiC for this guest post exploring issues of sexism that plagued last week’s interviews with candidates to be the next chief Prosecutor of the International Criminal Court (ICC). Başak is a teaching and research fellow as well as a Ph.D candidate at Université Paris 2. Her research focuses on sources of international law and international law theory.

(Image from The Female Lead)

The issues that undermined the hearings for the next Prosecutor of the International Criminal Court (ICC) did not stop at the technical difficulties that plagued the proceedings. After Ugandan candidate Susan Okalany rejoined the interviews following internet connection failures, the Vice-President of the Assembly of States Parties and Slovakian Ambassador Michal Mlynár asked Justice Okalany, the only short-listed woman: “give me a smile”. The incident has since been dubbed #smilegate by Surabhi Ranganathan. This request is part of larger, structural issues that plague national and international institutions.

Having powered through connectivity issues and repeated her answers, Okalany had just finished replying to the questions she had missed when Ambassador Mlynár made the inappropriate request. His intentions were likely intended to cut through the awkwardness of the proceedings or to make Okalany more comfortable after numerous internet connection failures. However,  Okalany had remained calm despite the difficulties, had not complained and was focused on her answers. Later in the interview Fergal Gaynor, another short-listed candidate for the position, congratulated Justice Okanaly for her “grace” under pressure (instead of, say, persistence). This seems to be one of her qualities; the June 2020 Report of the Committee on the Election of the Prosecutor pointed out that “Ms  Okalany  provided  […] resilience in the face of pressure”.

Sexism in international organisations is, dare I say, an epidemic. For the ICC, the fact that the current Prosecutor is a woman does not change that – it might even be a factor that helps hide the ugly truth. The higher one goes up the ladder, the less women there are. And the fall is steep. It goes from 76% and 63% female staff at P-1 and P-2 levels to 45%, 35%, 33%, and finally 11% at respectively P-3, P-4, P-5 and D-1 levels, according to the Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the ICC from December 2019, Danya Chaikel highlighted after the first day of the hearings. While the Irish candidate Gaynor pledged to put forward names of women for the position of Deputy Prosecutor if he were elected, there aren’t any rules guaranteeing gender balance in these higher positions.

Sexism is, of course, not specific to the ICC or the international criminal law world. Replying to Chaikel, Judy Mionki mentioned a UN Women study from 2016 on the on the Status of Women in the United Nations System, which notes that “a negative correlation exists between the representation of women and seniority – as grade levels increase, the proportion of women decreases. […] Such decreases indicate there are blockages in the pipeline hindering the career advancement of women within the UN”.

The so-called #smilegate is merely a symptom of a deeper issue, although a particularly telling one. As it has been remarked elsewhere, I doubt that the Ambassador would have asked a man to smile. It bears asking: are such questions posed equally to European or North American white women as they are to African women and women of colour? It seems doubtful and some have pondered whether race and colonial legacies are at play in such situations. Ranganathan, for example, underlines that Justice Okalany is a “woman, black, and African. The assumption that the likely frustration of her personal ambition is unimportant, even the carrying on of the interviews despite her technical troubles, and the expectation that she should set aside all that to restore comfort in the room by smiling has much to do with her being at the intersection of all [three] categories […] [one] really cannot imagine the Slovakian delegate would have asked an American candidate to respond in the same way. [One does] not imagine the Slovakian delegate condones racism or imperialism yet it is those very factors that underlie, if in a subliminal way, that encounter”.

Every woman reading this post knows what this is about. Women of colour know it best. This type of microaggression (micro describing the level at which the aggression takes place and not its intensity or impact) are part of everyday life. According to a survey published in the business magazine Inc., 98% of women have been asked to smile at least once in their life, with data suggesting that the workplace is the most common place for this to occur. One in every three women at mid-level, senior and executive positions received requests to smile more regularly.

Diane Marie Amann stressed that women are subject to a wide range comments on their appearance in the workplace, giving examples of women being told to “dress like a woman” or being forced to wear high heels, as well as of natural black hair being deemed unprofessional, and the prejudices against women wearing the hijab. This has even been an issue during the 2016 US presidential elections and comments on Hillary Clinton’s clothes, hair, and makeup were for some reason part of the discussion.

Us, women, were taught to live with unsolicited comments on our appearance, from strangers in public or colleagues and superiors at work. Being told to smile is part of it. It plays into the idea of this obliging, agreeable woman whose primary job is to keep others happy, to look pretty, and to not have an opinion of her own. Even if these were not the direct intentions of the Ambassador’s comments to Okalany, this is the narrative and reality that it propagates.

Being told to smile also ignores the observations of Monica Hakimi, who has foreseen the likely response to a female Prosecutor that smiles too much: “Whoa! Why’s she smiling so much? Doesn’t she realize that this job requires gravitas?”. This is further illustrated by Amann with photos as “international prosecutors not a smiley bunch & rightly so”.

Some, including Kevin Jon Heller, suggested that the Vice-President should apologise publicly to Okalany. Doing so would help to reset the tone, establish and reinforce expectations regarding behaviour towards women, and convey that such behaviour has no place in the ICC and broader realm of international justice. That too, might ensure that such harmful events help us to focus on combatting structural sexism as well as the inequality in power, resources, and opportunities between women and men at every level and in every international organization.

Confronted with the request to smile, Justice Okalany replied: “I am good”. The realm of international criminal justice won’t be, however, if pervasive and systemic sexism continues to persist. The events of last week are an opportunity to pursue meaningful change.