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“When we Don’t Speak the Same Language: the Challenges of Multilingual Justice at The ICC” | AFLA Seminar and Book Launch on the ICC: One Decade On

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Lorraine Smith van-Lin; International Criminal Law Expert, Former International Bar Association Program Director on the ICC

Introduction

Excellencies, distinguished ladies and gentlemen, good afternoon. It is a privilege to be a part of the birthing process of what can only be described as one of Evelyn’s babies. It was a long process with intense labour pains, but the finished product is a testimony that hard work pays off.

My contribution to this important work is entitled “When we don’t speak the same language: The challenges of multi-lingual justice at the ICC. With 124 states parties to date and the potential for situations to be referred by the UN Security Council, the ICC’s jurisdictional reach spans virtually every country and language.  Delivering justice in a multi-lingual context presents both challenges and opportunities for the Court.

I chose this issue for three reasons:

  1. It is undertreated, and risks being seen as a mere administrative matter. To the contrary, as I discovered, the ICC’s ability to deliver justice in a multi-lingual context can be likened to an octopus with many legs touching virtually every aspect of the  Court’s work and in particular its level of effectiveness and efficiency.
  2. It is inextricably bound with the fundamental rights of defendants and victims at the Court
  3. Justice in a multi-lingual context is also relevant to the complementarity discourse. National trials of international crimes often involve defendants and victims who do not speak the official languages used by the courts. Valuable lessons can be learnt from the ICC in this area.

Point of reference

I examine the issues through the lens of the Abdallah Banda case from the Darfur, Sudan – the situation concerning the murder of 12 UN peacekeepers (which incidentally is now in limbo as the defendant has absconded). Abdallah Banda speaks and understands only one language – Zaghawa, a little known unwritten language with a limited vocabulary of 5000 words.[1] Taking steps to transliterate evidentiary material for the benefit of the accused has delayed the trial for several years at significant cost. It is quite likely that the Banda challenges are likely to feature in several other cases in the coming years and States parties are already complaining about the Court’s mushrooming budget. Outside the courtroom, the ICC is also hard-pressed to communicate and connect with affected communities in a language which they understand, a challenge which it dares not ignore.

The Context

Languages used at the ICC

The ICC carte blanche adopted the six official UN languages
namely English, French, Arabic, Spanish, Chinese and Russian as its official languages. The official languages reflect the uneven UN structure with the glaring absence of African languages.  Swahili for example, is spoken by over 100 million persons in Africa, is the official language of Tanzania and is widely spoken in Uganda and Kenya.  It is listed as one of the official languages of the African Union but is not officially recognised as a UN language and thus is not one of the ICC’s official languages.[2]

This is not purely semantics. The ICC has a legal obligation under its Rules of Procedure and Evidence (RPE) to translate all decisions which are of fundamental importance into all of the official languages of the Court.[3] Prior to the commencement of the situation in Georgia, the majority of decisions of fundamental importance concerned an African defendant, victim or witness.  While there is no legal obligation to translate any of these decisions into languages that a significant number of Africans understand, ironically they must be translated into languages utilised by non-States parties some of whom have been noticeably intransigent towards the Court.[4]

Practically speaking, the Court does not translate all fundamental decisions into all of the official languages. Court decisions are mainly translated into the Court’s two working languages – English and French and may be translated into a ‘situational language’, that is, the local languages utilised by suspects, victims or witnesses who do not speak or understand any of the working languages of the Court. In fact the Assembly of States Parties, the Court’s governing body took a formal decision in 2009 to only translate its decisions into 4 official languages- Spanish, English, French and Arabic.  This in my view is a much more practical and cost effective approach.

Challenges and achievements
From a technical/ administrative perspective, some of the main challenges the ICC has faced include:

  • The number of languages which must be supported– which at the time of writing was 45 and given the ICC’s jurisdictional scope, could conceivably be significantly more.[5]
  • The sheer volume of translations including key decisions such as arrest warrants, strict judicial deadlines and divergent needs of the end-users.[6]
  • Local languages devoid of legal terminology and limited written materials such as dictionaries, and glossaries. To combat this, the ICC Registry created a legal dictionary of words and notions where these were non-existent in a particular language. This was done in the Uganda situation where a panel of experts was set up to create a legal dictionary in Acholi to translate arrest warrants and other judicial documents. A Situational Languages Translation Unit has since been created.
  • A perpetual shortage of trained interpreters for specialised languages. One practical approach utilised by the Registry was the training of local language speakers with no previous interpretation experience.[7] The individuals were then contracted by the Court as para-interpreters to facilitate hearings and other court related contexts.[8]
  • The need to ensure accurate interpretation and translations. This is particularly difficult in interpretation because of the need for speed, sensitivity and the ability not only to interpret legal terminology but also to convey nuances and emotions.
  • The cost of language services

These challenges have the potential to significantly impact the efficiency of ICC proceedings. By far however, one of the greatest inefficiency drivers is hands down, lack of timely disclosure due to translation related concerns. This of course directly impacts the rights of defendants before the Court. The issue: Fairness vs. Expediency.

Language and Rights

Defence language rights

Accused persons at the ICC are entitled to have:

  • Assistance of a competent interpreter and translation free of cost
  • Only such translations as are necessary to meet the requirements of fairness.
  • Translations only where proceedings and documents are not in a language which the accused fully understands and speaks

One of the main challenges faced by the prosecution and the judges is the number and scope of translations that accused are entitled to in order to meet the requirements of fairness. In general ICC Judges have ruled that the accused is not entitled to unlimited translation of every document- an approach which is consistent with the jurisprudence of the international tribunals and human rights bodies. At the pre-trial phase, summaries of witness statements are allowed so this is easier. At the trial phase however, full disclosure may require extensive translation of witness statements, exhibits or other documents. This could potentially lead to serious delays.

Thus in the case of Abdallah Banda, the Prosecution proposed to disclose partial translations of witness statements and summaries to the defence given the practical challenges and potential for extensive delays from translating in Zaghawa. This had been accepted at the pre-trial phase by the defence to facilitate the expeditious conduct of the confirmation proceedings. The defence refused at the trial stage citing their right to full disclosure and the Trial Chamber agreed.

In an effort to alleviate the problem, ICC judges via the Working Group on Lessons Learnt, proposed an amendment to the Court’s rules to allow them to authorise partial translations of prosecution witness statements and Court decisions, where these would not infringe the rights of the accused. According to the judges the provision of full translations of witness statements were becoming ‘unwieldy’ and creating extensive delays in Court proceedings. The proposed changes were expected to grant judges greater flexibility in decision-making which would ‘balance considerations of fairness and expediency’.[9]

Not surprisingly, the proposals generated fervent debate and opposing views.  The detractors felt that the removal of the right to full translations would place additional pressure on the accused’s counsel to make such translations since he is tasked with ensuring the full preparation of the defence case.[10] Thus rather than being an efficiency measure, the proposal would shift costs to the defence which would adversely affect the rights of the accused. Furthermore there were concerns about who was best suited to determine which of the ‘relevant parts’ of a statement should be translated to ensure fairness. [11]

The Rules have not changed and the issue is still under consideration. Thus judges must continue with a case-by-case approach.  It is possible to learn key lessons from the Banda case namely: the importance of discussion and hopefully agreement between the Prosecution and defence concerning which statements do not require full translations at the trial stage; collaboration between the Registry and Prosecution concerning sharing of translation resources provided that this does not impinge on the rights of the defence;  the need for early anticipation by the Prosecution of the likely translation needs during investigations and commencement of the process from that stage; and finally a creative and proactive approach by the Trial Chamber to ensuring fairness without compromising the expeditiousness of proceedings.

 

1.0  Victims’ Language Rights

One of the major innovations at the ICC is the right of victims to participate in proceedings before the Court. The Court makes allowances for victims who cannot speak any of the working languages to apply to participate in a language other than English or French. They are advised to contact the Court or Field Offices for assistance, although the Court warns that it may not have translators who can translate into all languages.[12] In practice most victims are assisted by intermediaries with their initial application to participate in proceedings before the ICC. Victims may also be represented before the Court by a legal representative who must be fluent in one of the Court’s working languages and can represent the victims’ interests even where the victims do not speak any of the working languages.[13]

 

2.0   Languages and complementarity

The ICC’s approach to multilingualism in its proceedings could potentially benefit national courts in ICC situation countries, a type of positive complementarity. Complementarity refers to the shared approach to justice between the ICC and national courts whereby the latter retains the primary obligation to investigate and prosecute serious crimes and the ICC intervening only where the State is unwilling or unable to do so.

National Courts struggle with insufficient resources to guarantee access to interpretation and translation in multilingual contexts.[14] Even in countries in which multiple languages are spoken, judicial proceedings are often only conducted in one official language. Poor defendants and victims who communicate in local languages are often placed at a disadvantage because of the lack of access to interpretation.[15]

Interpreters and translators trained by the ICC may be able to contribute to building a culture of and respect for interpretation in national courts. The ICC is understandably unable to engage directly in building capacity of local courts through training of court personnel. However through the training of interpreters and translators for ICC proceedings; recruitment and training of local staff for field operations; and sharing of best practises, the Court can contribute positively to ensuring that the right to interpretation and translation can also be realised in proceedings before national courts.

Example: Thomas Kwoyelo case before International Crimes Division in Uganda. Defence request for translation of prosecution statements into Acholi. Court orders Registrar to provide Acholi interpreter during the trial.

Outreach is also one of the key ways for the Court to have a lasting impact on the affected communities. Communication in the local language is very important tool for bridging the gap between the Court and the local population and ensuring that there is understanding about the ICC’s role. The Court has in the past produced interactive weekly radio programmes presented in local languages such as Lingala, Swahili and Sango.

As the Court evolves and learns from past errors such as being too focused in The Hague and dedicating insufficient resources to its field offices, important changes are being made to ensure greater field presence. Under the so-called Registry Revision Project, structural changes are being made to the Registry operations and specific attention is being paid to enhancing the Court’s field presence.[16] The OTP has also implemented changes to its investigative approach with more field based focus and longer field missions which will require a more intensive recourse to language skills. Increased field presence will also hopefully lead to greater understanding of the ICC’s role.

Conclusion
As noted at the outset, due to the sheer scope of its mandate and jurisdictional span, the ICC must deal with a multiplicity of languages. Ensuring that translation and interpretation services can fully support the operations of the Court will continue to require extensive resources. Pragmatic solutions which do not compromise the rights of the parties must be found.

As the Honourable Mr. Nelson Mandela once said “If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart”.
[1] The Prosecutor v Adallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ‘Prosecutions Response to the Trial Chamber’s Request for Written Submissions on issues to be addressed during the Status Conference on 19 April 2011,’ ICC-02/05-03/09-131, para.7

[2] See Protocol on Amendments to the Constitutive Act of the African Union, Article 11

[3] Under Rule 40(1) of the ICC Rules of Procedure and Evidence (RPE) these are listed as: all decisions of the Appeals decision; all admissibility and jurisdiction decisions; all Trial Chamber decisions on guilt or innocence, sentencing and reparations, and all decisions on Article 57(3)(d) (investigative steps in the absence of state cooperation). Rule 40(2) provides that confirmation of charges decisions and Article 70 decisions (administration of justice) are also to be published in all the official languages if the Presidency considers that they resolve fundamental issues. The Presidency may also decide to publish other decisions in all the official languages when they concern major issues regarding the implementation or interpretation of the Statute or major issues of general interest (Rule 40(3)). Despite the legal requirement, the Court’s approach to translation of decisions into all official languages is inconsistent, ad hoc and far from systematic. Given the Court’s resource constraints, it is little wonder that in this case the practise does not follow the law. A quick glance at the ICC’s website reveals that the Court has translated only a very limited selection of relevant decisions into the official languages. Three years after its issuance, the Lubanga judgment remained available in English and French only.

[4] The law requires translation into Russian and Chinese when neither Russia nor China is a State Party to the Rome Statute establishing the ICC. Both are however members of the UN Security Council and together with America have used their power to oppose referrals of certain situations such as in Syria, to the ICC. See UN Press, Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, 22 May 2014 available at http://www.un.org/press/en/2014/sc11407.doc.htm

[5] Alexander Tomic and Ana Beltrand Montoliu, ‘Translation before the International Criminal Court’, available at http://www.researchgate.net/publication/236258793_Translation_at_the_International_Criminal_Court

[6] Ibid

[7] Marc Dubuisson et al, Contribution of the Registry, 569

[8] Ibid

[9] Report of the Bureau on Study Group on Governance, Annex I para 5

[10] Ibid para 11

[11] Ibid para 10

[12] See ICC Booklet, Victims before the International Criminal Court, A guide for the participation of victims in the proceedings of the Court, p. 21 available at http://bit.ly/1iLl0YD

[13] Rule 22(1) and Rule 90 ICC Rules of Procedure and Evidence

[14] See for example in the Ugandan context, C. Namakula, ‘Language Fair Trial Rights in the Uganda Criminal Justice System,’ 20 East African Journal of Peace and Human Rights (June 2014),  122-151, 122

[15] Ibid

[16] See Report on the review of the organizational structure of the Registry Outcomes of Phase 4 of the ReVision Project Decisions on the structure of the Registry, ICC-ASP/14/18(May 2015)

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