What kinds of challenges arise when the persons administering international criminal justice proceedings have little knowledge of the languages, worldviews, and cultural practices of those appearing before the court? What are the difficulties that institutions of international criminal justice themselves encounter as they pursue their critical work with a staff representing a broad array of national, cultural, linguistic and legal backgrounds?
In a soon-to-be-published article, “Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide,” I explore these and related questions. Using as a point of departure the problematic 2013 criminal trial of George Zimmerman – tainted, according to language scholar John Rickford, by jury ignorance and bias around African American language and culture – I examine the potential for similar “mismatches” between fact-finders and persons appearing before the court in processes of international criminal justice. I argue that the potential for dissonance is high in the international system, where variation in language and culture among diverse actors – not only accused persons, witnesses, and members of victim communities, but also prosecutors, defense counsel, and judges – is more pronounced than in most domestic proceedings. My forthcoming article also builds on a recent publication and my ongoing research about how institutions of international criminal justice accommodate, in particular, speakers of African languages.
A number of scholars have examined challenges related to the inevitable convergence of diverse languages and cultures that occurs in international criminal proceedings, whether at the Ad Hoc Tribunals, Special Court for Sierra Leone, or International Criminal Court (see the work of Gerhard Anders, Jessica Almquist, Michael Bohlander, Nancy Combs, Ellen Elias-Bursać, Nigel Eltringham, Tim Kelsall and Joshua Karton, among others). They have documented difficulties ranging from the inconsistent translation of testimony into a court’s working languages, to misunderstanding on the part of victims about what they can expect when participating in a trial, to the challenges of fact-finding when witnesses evoke supernatural forces as causal. The ICC is particularly vulnerable to linguistic and cultural challenges, given that it has an almost global jurisdiction and cannot predict and prepare for future cases with any certainty about which languages or cultural knowledge will be relevant.
While many instances of dissonance are found in the interface between an institution and its external “constituents,” there is also plenty of opportunity for mismatches to arise within international criminal institutions themselves, given the international character of their staffs. Michael Bohlander has explored this phenomenon at the International Criminal Court, whose staff hails from countries with distinct legal traditions, training, and philosophies. Despite this diversity, however, he has noted the growing dominance of the Anglo-American system, mediated almost entirely through the English language. Bohlander points out the danger of this trend in international criminal justice: “English has become the lingua franca in international legal academic and practical dialogue, and there is a related concern that English – or its direct descendant, Anglo-American – intellectual and legal culture has drawn a thick veneer over the canvas of international criminal law as well. The differences in linguistic and cultural influence need attention as they are a primary determinant of the dialogue that constitutes international justice, not only in form but also in substance” (p. 491).
My article concludes that the ICC might be facing the ultimate mismatch, given that language and cultural diversity within the institution is narrowing at the same time that the range of languages and cultures of its external constituents is widening. I argue, perhaps controversially, that critical figures in international criminal justice, and judges in particular, should ideally be multilingual and multicultural.
It is unrealistic, of course, to expect that international judges could ever be versed in the full array of languages and cultures relevant to the cases that come before them. The point is, rather, that they should have the intellectual flexibility – a flexibility cultivated through being regularly pushed out of one’s native linguistic and cultural frame – to assess the guilt or innocence of persons whose life experiences and worldviews may be completely foreign to their own. In order to have benches best prepared for this challenge, I believe that breadth of linguistic and cultural knowledge – and not just diversity by region, gender and legal expertise – should be considered when candidates are vetted for judicial positions in international criminal courts and tribunals.