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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How are multilingual challenges addressed at the ICC?

In June 2017, I observed the testimony of a prosecution witness in The Prosecutor v. Dominic Ongwen trial at the International Criminal Court (ICC) in The Hague. Ongwen stands accused of directing attacks by members of the Lord’s Resistance Army in May 2004 against civilians in an internally displaced persons’ camp in northern Uganda. The alleged war crimes and crimes against humanity committed by those under Ongwen’s command include murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, cruel treatment of civilians, sexual and gender-based violence, and pillaging.

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Courtesy of ICC

The witness testifying that day was a victim of the attacks. She recounted how her newborn child was thrown into the bush by the attackers, and how she was subsequently pursued and brutally beaten as she searched for her baby. As a protected witness, her face was purposely distorted so that she was unrecognizable to the public. But her background was nonetheless clear – her experiences were that of a young woman from a rural area, her dress was traditional, and she testified in Acholi.

How does such a witness find herself in The Hague, addressing international judges, prosecutors and defence lawyers in a modern courtroom that is outfitted with the latest technology? Who takes her initial witness statement? Helps her arrange her travel to Europe once she has been selected to testify? Meets her at the airport upon arrival? Finds her suitable clothing for the European weather and helps her settle into her accommodation? Who orients her to the courtroom procedures, the microphones she will speak into, and the images that will flash before her on a screen? And very importantly, who interprets her critical testimony about what she experienced from Acholi into the working languages of the Court, English and French, conveying the tone of her speech along with her inevitable hesitation and emotion, so that it can become part of the official trial record?

These are just some of the questions I seek to answer through an ethnographic project I began in 2017, which I have tentatively titled “Global Court, Local Languages: How the ICC Pursues Multilingual Justice.” It is true that every international court must accommodate in some way the multilingualism found both across its geographic jurisdiction and within its own professional ranks. This task may not be particularly daunting, however, if the court has official or working languages that are widely spoken and for which there exists a large cadre of trained translators and interpreters. For institutions that must accommodate speakers of rarer languages, the challenges are considerably greater. Indeed, the difficulties associated with using such languages throughout the various phases of an international criminal process may raise fundamental questions about accuracy, fairness, and budgetary allocation.

As an anthropologist with a background in African sociolinguistics, I am particularly interested in the use of African languages in a wide range of ICC activities. A number of challenges arise in the course of these activities, stemming from a variety of factors. These include the absence of trained language professionals for many of the target languages, the lack of existing lexical items to denote international legal concepts, the languages’ frequent lack of a written tradition, and low rates of literacy in victim communities

The ICC is currently using more than thirty languages from the African continent in its investigations, trials, interactions with victims, and outreach activities. Despite the centrality of these languages to various ICC situations and cases, African language experts, along with the structures created to support their work, operate largely in the shadows. Furthermore, the innovative strategies developed by ICC language services staff around recruitment and training of African language interpreters, development of legal lexicons, and other vital activities are rarely acknowledged publicly. Despite the obvious multilingual nature of all ICC situations and cases, the constant use of interpretation and translation (even between its working languages), and the visible presence of interpreters in the courtroom, the Court’s language services remain strangely unseen and unsung.

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Courtesy of ICC Language Services Section

I recently finalized a paper that presents some of the preliminary findings from this research project – “Unseen and Unsung: ICC Language Services and their Impact on Institutional Legitimacy.” This paper, prepared for a PluriCourts conference in October 2017 on the theme of “The Legitimacy of Unseen Actors in International Adjudication,” is currently under review for publication. I also had the opportunity to present these findings at the ICC itself, to an audience comprising language service professionals along with judges and other staff members.

I welcome all comments and suggestions on my paper, available at the link above, as well as my larger ongoing project.

 

 

Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide

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.

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Amnesty International

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).

fullsizerenderMy 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.

IntLawGrrl Linda Carter honored at recent symposium, “Crime without Borders”

It was my great pleasure to participate in an enriching symposium last month at the University of the Pacific’s McGeorge School of Law. Organized around the theme “Crimes without Borders: In Search of an International Justice System,” the event celebrated the diverse scholarship and work of IntLawGrrl Linda Carter, who is soon to retire from her position as a McGeorge Distinguished Professor of Law. Linda’s teaching and research areas have included criminal law and procedure, evidence, capital punishment law, international criminal law, and comparative legal systems. As to her academic output, let me mention two volumes among her numerous publications that are relevant to the symposium theme: THE INTERNATIONAL CRIMINAL COURT IN AN EFFECTIVE GLOBAL JUSTICE SYSTEM (with Mark Ellis and Charles Chernor Jalloh, Edward Elgar, forthcoming in 2016), and INTERNATIONAL CRIMINAL PROCEDURE: THE INTERFACE OF CIVIL LAW AND COMMON LAW LEGAL SYSTEMS (with Fausto Pocar, Edward Elgar 2013).

Organized in large part by McGeorge Professors and Global Center Directors Omar Dajani and Jarrod Wong, and McGeorge Associate Dean for Faculty Scholarship Raquel Aldana, the symposium explored the challenges posed by the most serious crimes afflicting humankind around the world. Panelists shared their expertise and insights on national, regional, and international approaches to atrocity crimes, including criminal trials, truth commis­sions, and traditional mediation processes. The program provided an opportunity to exchange ideas on difficult but critical issues in the search for a system that can bring justice in the wake of terror and violence.

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Linda Carter

The day began with a keynote, “Wrestling Tyrants,” by Professor Christopher Blakesley of the University of Nevada-Las Vegas Boyd School of Law. A long-time friend and colleague of Linda’s, Chris reflected on the moral and legal value of an international criminal justice “system.” He considered the history and development of international criminal courts, obstacles to their creation, and how some of those obstacles have continued as barriers to the development of a functional system of international crimi­nal justice. Along the way, he referred to Linda’s important work battling “the tyrants” in this important arena.

The symposium continued with a roundtable entitled “International Criminal Justice: More than the Sum of its Parts?” Moderated by McGeorge Professors Omar Dajani and John Sims, participants represented a wide array of experiences, and each offered his or her perspective on factors that have shaped the development of international criminal justice and may constrain its efficacy and legitimacy. The following overview will give a flavor of the roundtable. McGeorge Professor Stephen McCaffrey, who served on the International Law Commission at the time of developing the precursor to the Rome Statute, the Draft Code of Crimes Against the Peace and Security of Mankind, set the stage by discussing the legal and political issues from Nuremberg to Rome. International Criminal Tribunal for the former Yugoslavia Judge Fausto Pocar discussed how and to what extent the choice of Rules of Procedure and Evidence may impact justice administered by international courts. International Bar Association Executive Director Mark Ellis examined the place of national criminal jurisdictions as they evolve into “accountability centres” for international criminal trials. Charles Jalloh discussed the emerging role of a regional court in Africa. The roundtable also had IntLawGrrls participation. Beth Van Schaack  discussed the important role that hybrid courts have played and may continue to hold in an international justice system. And yours truly described some of the impacts of linguistic and cultural diversity on international criminal justice (see my 2015 IntLawGrrls post on a related topic.

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Beth Van Schaack

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Website launch: Ad Hoc Tribunals Oral History Project

ORAL HISTORY SCREENThe International Center for Ethics, Justice and Public Life of Brandeis University announces the launch of the Ad Hoc Tribunals Oral History Project website.

The Ad Hoc Tribunals Oral History Project, initiated in Fall 2014, seeks honest evaluations about the challenges and successes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The Project aims to preserve the voices of those individuals who worked to bring justice to those two zones of conflict and contributed to the development and “institutionalization” of international criminal law during the early years of the ICTY and ICTR.

To date, the Project has interviewed almost 30 judges, prosecutors, defense counsel, and administrators connected to the ICTY and ICTR, as well as commentators on international criminal law and civil society actors. As a primary resource, this growing collection of oral history transcripts can be used in a variety of ways to inform the public about the Ad Hoc Tribunals and international criminal justice more generally. Students, scholars, and educators can use the materials in their research and analysis, in written histories of international criminal tribunals, and in studies across disciplines such as human rights, criminal law, sociology, history, and international relations.

Click here to read more about the Project, access interviewee profile pages and full-text interviews, and view video clips of selected excerpts. A keyword search can also be made across the collection through the Brandeis Institutional Repository.

More transcripts and video clips will be available soon.

This project has benefitted greatly from the participation of fellow IntLawGrrls Linda Carter and Susana SáCouto.

The Place of African Languages in International Criminal Justice: Meeting Challenges and Developing Strategies

ICC accused Abdallah Banda Abakaer Nourai who has chosen to testify in Zaghawa, a Sudanese language estimated to have only a few hundred thousand speakers. (Photo Credit: jfjustice.net)

 

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. Continue reading