iCourts Seminar Examines the Role of Language in International Courts

It was my great pleasure to participate last month in a seminar at the University of Copenhagen Law Faculty entitled “From ‘Texts in the Making’ to Authoritative Judgments: International Courts Behind the Scenes.” The seminar was organized as part of a Summer School for PhD students from across the globe whose dissertation projects focus on institutions of international justice. This Summer School has been organized jointly since 2013 by the iCourts Centre of Excellence for International Courts (University of Copenhagen) and the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (University of Oslo).

The seminar was conceptualized and facilitated by Anne Lise Kjaer, Associate Professor of Legal Linguistics at the Faculty of Law, University of Copenhagen. She has a deep knowledge of the field of language and the law, and many of her publications center on legal translation and interpretation.  Anne Lise’s current research aims at developing cross-disciplinary approaches to the study of legal integration in Europe, combining theories of language, discourse, culture, and law. She is currently a member of the Executive Committee of the recently reconfigured International Language and Law Association.

The first seminar speaker was Karen McAuliffe of the University of Birmingham School of Law, whose own research and publications focus on language issues at the Court of Justice of the European Union (ECJ). She is principal investigator and team leader of The Law and Language at the European Court of Justice Project, funded by the European Research Council, which aims to elaborate a new understanding of the development of EU law by examining the process behind the production of the ECJ’s multilingual jurisprudence. Karen’s seminar remarks introduced the audience to her important project and some of the challenges that the ECJ faces as an institution serving 27 state members via 24 official EU languages.

IMG_3344The seminar then turned to another European judicial institution with a presentation by James Brannan, a translator in the English Language Division of the Registry of the European Court of Human Rights (ECtHR). James explained that while English and French are the official languages of the Court, one may now find translations into 31 other languages in the enormous ECtHR document database, HUDOC. There may be quality issues in this part of the collection, however, given that unofficial translations may be produced by ministries of justice or NGOs in various Council of Europe member states. James also described the challenge of translating between English and French in such a way that legal concepts in the original version do not appear so closely tied to either a common or civil law system that they will be difficult to apply across the Court’s broad jurisdiction. James will soon have a chapter on the translation of ECtHR judgments published in the Max Planck Encyclopaedia of International Procedural Law.

The geographic focus shifted to the Americas with the presentation of Álvaro Paúl, Professor of International Law and Human Rights at the Pontificia Universidad Católica de Chile. Álvaro has closely examined legal translation at the Inter-American Court of Human Rights (IACtHR) and he described to his Copenhagen audience some of the challenges faced by this important regional justice institution. In the attempt to disseminate its jurisprudence broadly, the IACtHR aimed in the past to provide English translations of its judgments. However, there was little terminological consistency across translations, with the same legal concept sometimes represented by a wide variety of English terms. The “translation” of civil into common law concepts also resulted in some confusion and misrepresentation in the English-language versions. Unfortunately, he  noted, since 2016 the IACtHR has not translated any of its final judgments. Álvaro ended his remarks with some suggestions about how the IACtHR, which increasingly faces budgetary constraints, can continue its critical translation work, including the use of simplified language in its judgments and changes to the requirement that respondent states publicize remedies ordered by the Court. You can read more about all these issues in Álvaro’s paper, “Translation Challenges of the Inter-American Court of Human Rights and Cost-Effective Proposals for Improvement.”

Kerstin Carlson, Associate Professor of International Law at the University of Southern Denmark and an iCourts Global Research Fellow, spoke to the gathering about the judgment rendered in the trial of former Chadian dictator Hissène Habré at the Extraordinary African Chambers. The Habré judgment, delivered by an ad hoc court in Senegal, showcased an important moment for “Africa to sit in judgment of Africans,” while speaking the language of international criminal justice. She noted that this is especially important at a time when the African Union is in political opposition to the International Criminal Court (ICC). Linguistic anomalies in the judgment’s language, indicating outside influences, challenged this ownership; Kerstin’s talk illustrated several “ownership issues” that had received local attention as demonstrating that non-Africans had a hand in the judgment’s drafting. This included one phrase in the judgment that situated certain acts as having occurred during “springtime in Chad,” even though this season is a phenomenon of the global north and not the Sahel. Kerstin then contrasted contestations over ownership against the transitional justice potential of the Habré judgment, i.e. the capacity of a judgment to meaningfully impact governance and narrative in Chad. More about her work on the Habré trial can be read in a Justice in Conflict blogpost and a chapter from the recently published Brill volume entitled Strengthening the Validity of International Criminal Tribunals.

Translation issues at the International Criminal Tribunal for the former Yugoslavia (ICTY) were the topic of Ellen Elias-Bursac’s remarks. Author of the Translating Evidence and Interpreting Testimony at a War Crimes Tribunal: Working in a Tug-of-War, Ellen described how questions about language and translation emerged in almost every ICTY judgment in one form or another. As a former ICTY reviser, with many years of experience working in the Tribunal’s Conference and Language Services Section, Ellen offered an insider’s view of how multilingual actors – be they counsel, witnesses, or accused persons themselves – sometimes used the back-and-forth between languages to raise questions, challenge assumptions, or even control courtroom proceedings. Significantly, Ellen found only one instance in her research of a translation error that altered the outcome of a judgment in the more than 100 trials and appeals held at the Tribunal.
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My own presentation was drawn from an ongoing ethnographic project examining how the ICC addresses the challenges of multilingualism. Not only do ICC staff members themselves hail from diverse language communities, but the “situation languages” – those relevant to ICC investigations, trial proceedings, victims’ services and outreach activities – bring many more languages into the institutional mix.  As a number of those are categorized as “languages of lesser diffusion,” ICC language professionals must often use innovative strategies to ensure both fair trial rights of defendants and efficient provision of translation and interpretation services to units across the Court. The working language policy of the ICC, on the other hand, is quite ordinary – all staff members must be proficient in at least one of the working languages, English or French.  And like many other international institutions, it is clear that English dominates over French to a large degree.  The Court is thus called upon to accommodate both the extreme diversity of its situation languages and the increasing homogeneity of the language used in its day-to-day communications.

The iCourts seminar was memorable not only for its content but for the wonderfully collegial atmosphere and the opportunity to interact with fellow academics, experienced practitioners, and young “scholars in the making.” I was also encouraged to find so many colleagues interested, as I am, in linguistic and cultural issues that emerge in processes of international justice. Indeed, Brandeis University is in the process of establishing a project focused precisely on this fascinating and critical area. Stay tuned for more details!

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