How do international criminal courts and tribunals accommodate speakers of languages when there is no existing corps of trained interpreters and translators to call upon? How do court professionals identify and fill lexical gaps, especially those related to principles of international crimes and judicial procedures? When do misunderstandings due to language blend into those caused by different cultural perspectives held by tribunal staff and legal practitioners on one side, and accused persons or witnesses on the other?
These and other questions come into play regularly when speakers of African languages participate in processes of international criminal justice. In a recently published book chapter, “African Languages in International Criminal Justice: the International Criminal Tribunal for Rwanda and Beyond,” I examine the various roles played by African languages, along with the practices and policies that were developed to respond to these roles, at the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and, to a lesser extent, the International Criminal Court (ICC). Through interviewing judges, prosecutors, defense counsel, investigators, outreach officers, and language service specialists from the three courts, as well as exploring existing literature that touches on language use in these settings, I have attempted to draw a picture of how African languages fare in critical domains of international criminal justice. These domains include formal criminal investigations, courtroom proceedings, outreach to the regions where the international crimes have been committed, and communication with victims of these crimes.
My chapter is included in Promoting Accountability Under International Law for Gross Human Rights Violations: Essays in Honour of Prosecutor Hassan Bubacar Jallow (Brill Nijhoff 2015), edited by Charles Chernor Jallow and Alhagi B.M. Marong.
Challenges related to the use of African languages in legal processes are not unique to the international sphere. Indeed, the absence of local languages in the higher judicial courts of African countries has often been noted. When this scenario is transferred into the “higher order” of international criminal courts and tribunals, however, the difficulties are compounded. The stakes of the trials are very high: defendants are charged with crimes deemed the most serious by near universal agreement, namely, war crimes, crimes against humanity and genocide. The official languages of the international courts are those spoken in the world’s most powerful states, past and present. Persons participating in an international criminal justice procedure must either use a language of the court – with which they may have had limited educational or practical contact, if any at all – or communicate through an interpreter.
Furthermore, communication challenges are not limited to the individuals participating in trials. International criminal tribunals have important institutional mandates that reach beyond the determination of an accused person’s guilt or innocence to include outreach to victims and communities affected by the crimes under examination, and even attempts to “contribute to the process of national reconciliation and to the restoration and maintenance of peace.” These mandates cannot be successfully pursued without meaningful contact with the victims and communities in question, which may be hindered by the absence of a shared language or even a common understanding of what might constitute justice in the wake of widespread violence and societal rupture. International criminal tribunals thus face the significant challenge of finding effective ways to educate victims and affected communities about their institutional aims and procedures, inform them of the outcomes of trials, and contribute in at least some measure to societal healing.
Questions about the role of language in international criminal courts and tribunals are particularly important given the prominence of Africa in their work over the past two decades. With the trials of the ICTR and the SCSL essentially finished, attention is now focused on the ICC, currently into its second decade of operation. Debates about the perceived “Africa bias” and neo-colonial character of the Court continue unabated, while African Union members discuss regional justice alternatives to the ICC and the possibility of revoking their ICC membership altogether. Whatever one’s position in this fractious debate, and whatever may be the eventual solution to Africa’s unease with the global court, there remains this reality: the ICC is legally bound to pursue all ongoing cases – involving eight African “situation countries” and more than two dozen accused persons as of this writing – to their completion. This means that the Court has to face the difficulties associated with communicating effectively through multiple African languages – many of which are neither commonly written nor widespread by territory or function – both to ensure the fair trial rights of accused persons and to fulfill its institutional mandate toward victim communities.
I am now continuing my research with a full focus on the ICC and its practices and strategies related to African languages, both in The Hague and in situation countries. I hope to bring new light to bear on a complex subject that is critical to the success of the ICC’s work.