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COPYRIGHT 2008 Vanderbilt
University, School of Law
ABSTRACT
When courtroom interpreters translate a
witness's testimony, errors are not just possible, they
are inherent to the process. Moreover, the occurrence of
such errors is not merely a technical problem," errors
can infringe on the rights of defendants or even lead to
verdicts based on faulty findings of fact. International
criminal proceedings, which are necessarily
multilinguistic, are both particularly susceptible to
interpretation errors and sensitive to questions of
procedural fairness.
This Article surveys the
history and mechanics of courtroom interpretation,
explains the inherent indeterminacy of translated
language, and describes the other sources of inaccuracy
in interpreted testimony. It then assesses the impact
that errors in interpretation may have on fact finding
by international criminal tribunals and on the rights of
international criminal defendants. The Article concludes
by suggesting some low-cost and easy-to-institute
measures that will reduce the likelihood that a judgment
will turn on an inaccurate interpretation. Improving the
quality of translation will buttress the rightness of
the international criminal tribunals' judgments and the
fairness of their procedures.
TABLE OF CONTENTS
I. INTRODUCTION
II. THE RIGHTS OF THE ACCUSED IN INTERNATIONAL
CRIMINAL LAW
III. THE HISTORY AND MECHANICS OF COURTROOM
INTERPRETATION
A. Types of Interpretation
B. Origins of Courtroom Interpretation
C. Mechanics of Modern Courtroom
Interpretation
D. A Note on Paralinguistic Interpretation
IV. THE INHERENT INDETERMINACY OF TRANSLATED
LANGUAGE
A. Diversity in Syntax and Vocabulary
B. Cross-Cultural Communication
V. EXTRINSIC SOURCES OF ALTERATION OF MEANING
IN TRANSLATED TESTIMONY
A. Interpreter Fatigue
B. Extralinguistic Knowledge
C. Cross-Examining Witnesses through
Interpreters
D. The Special Challenges Presented by
International Criminal Tribunals
VI. THE LEGAL CONSEQUENCES OF TESTIMONY
ALTERED BY INTERPRETATION
VII. SOME STEPS THAT CAN BE TAKEN
VIII. CONCLUSION "Of course I want
counsel. But it is even more important to have a good
interpreter."
--Hermann Goring, Oct. 29, 1945
(1)
I. INTRODUCTION
Peter Uiberall, the
chief interpreter for most of the first Nuremberg trial,
found when he became chief that the interpreters had
consistently been translating the German "ja" as "yes."
(2) While "ja" can mean "yes," it is most often used as
a place-filler by German speakers in the way that
English speakers might begin with "um" or "well" when
responding to a question. (3) Thus, when a German
witness or defendant was asked a question about some
possibly incriminating activity, association, or
knowledge, his hesitation was interpreted as an
unconditional admission. Then, "once that 'Yes' is in
the transcript, the man is stuck." (4)
Although
interpreters describe themselves as "neutral
mouthpieces," (5) "invisible," (6) or mere "bridge[s] of
communication," (7) they are actually none of these; the
act of interpretation invariably alters the meaning of a
speaker's utterances. (8) As the prosecutor at the
United Nations (U.N.) International Criminal Tribunal
for the Former Yugoslavia (ICTY) acknowledged in that
tribunal's first trial (of Dusko Tadic), "[a] great deal
of accuracy is bound to be lost in the translation
process. There is no statement taken during the course
of the investigation that will be a verbatim report of
what the witnesses say." (9)
Despite the high
stakes involved, legal scholars and practitioners remain
largely unaware of the way interpretation works and of
the effect of interpretation on testimony. (10) Instead,
they view interpretation merely as a technical issue.
(11) For example, a lengthy article written in 2006
about physician testimony in international criminal
trials never mentions the issue of translation. (12) The
legal treatments of courtroom interpretation that do
exist largely focus on the rights of minority or deaf
defendants to have access to the services of an
interpreter in criminal trials. (13)
Much has
also been written about various aspects of international
criminal procedure. However, while such writings may
mention the importance of interpretation to the
functioning of the court and point to some of the
difficulties that interpretation creates, they do not
address the act of interpretation itself. (14) For
example, Nice and Vallieres-Roland, two trial attorneys
in the ICTY Office of the Prosecutor, have described a
variety of procedural innovations that have been
introduced at the ICTY with the goal of expediting the
proceedings. (15) In a discussion of such an innovation
first used in the Milosevic trial, namely "proofing
summaries," (16) the only reference to translation is a
note acknowledging that one of the reasons that proof of
evidence-in-chief by writings is quicker than proof by
oral testimony is that documents may be translated in
advance. (17)
In other words, while some
attention has been paid to the availability of
interpretation services, almost none has been given to
the character of these services or to their effects.
(18) This Article discusses the effects of inaccuracies
in testimony that are introduced by the interpretation
process on the ability of international tribunals to
find the "truth" in the cases before them and on the
right of defendants to a fair trial before those
tribunals. It has two primary goals: first, the Article
seeks to raise awareness in the legal scholarly
community with respect to the workings of courtroom
interpretation and the potentially distortive effects of
interpretation on testimony. Second, it seeks to
convince scholars and practitioners dealing with the
international criminal tribunals that interpretation of
testimony is not merely a technical or practical issue,
but one with which they ought to concern themselves
personally.
This Article focuses on
interpretation in international criminal tribunals
because the stakes are higher and there is greater
potential for misinterpretation than in national courts
or international "civil" tribunals. (19) The
international criminal tribunals derive their legitimacy
not from the coercive power of a controlling legal
authority--as with national courts--but from the consent
and approval of the international community, as
expressed in the resolutions of the U.N. bodies and in
states' willingness to accept the tribunals' decisions.
(20)
Support from the international community
for international criminal tribunals is in turn
dependent upon the prevailing sense that the anational
status of the international tribunals makes them better
for prosecuting war crimes than the national courts in
countries where atrocities have been perpetrated:
Even in cases where the Government has both the will and the
capacity to bring to trial individuals for crimes under
international law in conformity with international fair trial
standards[,] an international criminal tribunal may bring an added
sense of objectivity and fairness to the criminal proceedings as
well as raise their symbolic profile. (21)
This
is, furthermore, a critical time in the development of
international criminal tribunals. While some have
described a recent trend in international criminal law
toward a reaffirmation of the role of national law and
courts, (22) the international tribunals will retain a
vital role in "robbing powerful criminals of the
impunity that their power provides and beginning a new
era of accountability." (23) Unlike the Nuremberg
trials, the first of which is the most famous primarily
because it featured the most notorious surviving Nazi
leaders, the international criminal tribunals had to
reach first for the low-hanging fruit. (24) Now that the
ICC has officially charged its first defendant, (25)
international criminal law is poised to take a step
towards regularization. If international criminal trials
become more frequent and more accepted, the likelihood
of marginal cases being prosecuted will increase, and so
will the likelihood of a wrongful conviction.
As
mentioned previously, the problems stemming from
alteration of testimony by interpretation are more acute
in international than national proceedings. (26)
Witnesses to episodes of inter-ethnic fighting
predictably speak a variety of languages, and the judges
and counsel rarely speak the same languages as the
witnesses and defendants. (27) The multinational (and
therefore multilingual) nature of international criminal
tribunals, which gives the tribunals international
support and should make it possible for them to act
impartially, also hinders them from determining the true
facts and doing justice. (28)
It must be
emphasized that this Article deals only with the
possible consequences of inaccurately interpreted
testimony, and not with such issues as legal tactics
involving interpretation. The risk that a party's
complaint regarding an interpretation could be merely a
litigation tactic is not addressed (for example, when a
defendant claims that a suspect code phrase like
"special handling" is not a euphemism for a culpable
act). However, inaccurate interpretation does encompass
instances such as those in which a word is improperly
rendered into its grammatical equivalent, or a concept
that is clear in one language and culture has no
equivalent in another.
It is not known how many
errors in translation make their way into the record. Of
course, the examples of inaccurate interpretations given
here have been discovered and corrected--otherwise, we
would have no record of them. However, some were not
discovered until the daily court transcript was checked
over, at which time procedure allows a correction to be
read into the record. Despite the availability of this
remedy, harm may have already been done if the presiding
judges have already formed opinions about a given
witness's testimony. In any event, the errors identified
in this Article are representative of the types of
errors that go uncorrected. (29) The inherent
indeterminacy of interpreted language cannot be "cured,"
but it can be accounted for; extrinsic factors that
affect the accuracy of interpretation may also be
minimized.
This Article proceeds first, in Part
II, by briefly setting out the existence and scope of
the due process rights of the accused in international
criminal law and identifying which rights may be
affected by interpretation of testimony. Subsequently,
it surveys the history and mechanics of courtroom
interpretation (Part III), discusses the inherent
indeterminacy of translated language (Part IV), and
describes the extrinsic sources of inaccuracy in
interpreted testimony (Part V). It then assesses the
impact of the alteration of testimony interpretation on
the correctness of judicial fact finding and the right
of the accused to a fair trial (Part VI). Finally, in
Part VII, it conveys suggestions for minimizing and
mitigating the impact of the alteration of testimony
through interpretation.
II. THE RIGHTS OF THE
ACCUSED IN INTERNATIONAL CRIMINAL LAW
To achieve
their purpose of reinforcing international peace and
security as well as upholding human rights,
international criminal tribunals must not only determine
who is responsible for international crimes, but also
must protect the rights and dignity of the persons
involved. Without trials that are both fair and
perceived as fair, "pacification of the conflict between
victim and offender, which can be so severe in
international crimes, is an unachievable goal." (30)
Thus, success in the international criminal arena
"should be measured not by the number of convictions
achieved by each institution, but rather by whether
'justice' was served in the trials before these
international bodies." (31) Indeed, it is "undoubted"
(32) and "axiomatic" (33) that the international
criminal tribunals must arrange their affairs so as to
produce just results that respect the human rights of
all involved.
Safferling distinguishes three
elements comprising a fair trial:
institutional guarantees, such as the independence and impartiality
of the tribunal or court, ... moral principles like the presumption
of innocence or the principle of equality of arms ... [and] rights,
conceived of in a classically narrow manner, like the right not to
be arbitrarily detained or the right to counsel. (34)
Because
testimony altered by interpretation can have important
consequences for the third of these elements--procedural
rights--this Article focuses on those rights, which are
collectively referred to as "due process" in the United
States and elsewhere. The alteration of testimony by
interpretation may affect whether international criminal
tribunals fully respect the procedural rights of
defendants and whether the tribunals actually discern
the truth of the matters before them.
The
concept of the fair trial runs through all of the
20th-century human rights conventions and treaties,
starting with one of the U.N.'s foundational documents,
The Universal Declaration of Human Rights (UDHR). (35)
More specifically, the International Covenant on Civil
and Political Rights (ICCPR) guarantees in Article 14
the right to a "fair and public hearing." (36) Other
human rights conventions that have affirmed the right to
a fair trial include the Convention against Torture and
Other Cruel, Inhuman, or Degrading Treatment or
Punishment (37) and the Convention on the Rights of the
Child. (38)
These documents may not embody
unanimously-accepted legal norms, (39) but they do
represent the international community's moral and
political commitment to the principle of a fair trial.
Indeed, the issue of the legal status of the human
rights treaties is moot for present purposes because the
statutes of all of the international criminal tribunals
guarantee the right of the accused to a fair trial. (40)
Despite the guarantee of a fair trial, the
specific procedural guarantees that must be in place for
a trial to be considered fair remain undefined and
subject to substantial disagreement. (41) For example,
there is no dispute that the right to counsel exists for
defendants in international criminal trials, but the
exact contours of such a right remain unsettled. (42)
Nevertheless, we must know something of what these
rights are before we can discuss how interpreted
testimony affects them.
To the extent that due
process rights have been codified in international law,
their seminal expression is Article 14 of the ICCPR.
(43) The statutes of the international criminal
tribunals borrow language from ICCPR Article 14 and
guarantee to provide at a minimum what Article 14
provides. (44) Consequently, this Article considers its
provisions to be authoritative. (45) Article 14 sets out
the institutional guarantees, moral principles, and
procedural rights that make up the elements of fairness
and that have been adopted by the international criminal
tribunals. (46) Paragraph 3 of ICCPR Article 14 sets out
the procedural rights that are considered to be the
necessary components of a fair trial. (47) It guarantees
to all those accused of a crime, in full equality, the
following rights:
1. To be informed promptly and
in detail in a language which he understands of the
nature and cause of the charge against him;
2.
To have adequate time and facilities for the preparation
of his defence and to communicate with counsel of his
own choosing;
3. To be tried without undue
delay;
4. To be tried in his presence, and to
defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the
interests of justice so require, and without payment by
him in any such case if he does not have sufficient
means to pay for it;
5. To examine, or have
examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
6. To have the free assistance of an interpreter
if he cannot understand or speak the language used in
court;
7. Not to be compelled to testify against
himself or to confess guilt. (48)
The express
recognition of an autonomous right to interpretation
services that Article 14 provides is of particular
interest. To the Author's knowledge, no constitutional
or other due process scheme of any state directly
guarantees this right. In the United States, the right
to interpretation services is regarded not as an
autonomous right, but as a derivative one. (49) The
rationale is that interpretation services in and of
themselves are not morally or constitutionally required,
but their provision is necessary to vindicate other,
more fundamental rights. (50) U.S. judicial decisions
that address the provision of interpretation services
have focused on the rights of criminal defendants to be
present for all critical stages of the trial, (51) to
benefit from the effective assistance of counsel, (52)
and to confront adverse witnesses, (53) as well as the
due process rights of defendants to know and defend
against the charges against them, assist in their own
defense, and testify on their own behalf. (54) For its
part, the U.S. Supreme Court has never recognized an
autonomous right of criminal defendants to
interpretation services. It has addressed the issue only
once, in its 1907 judgment in Perovich v. United States.
(55) The Court in Perovich held that the decision of
whether to appoint an interpreter for a non-English
speaking defendant is within the trial court's
discretion; however, the Court considered no
constitutional arguments and rooted its holding in the
jurisprudence of the Federal Rules of Civil Procedure.
(56)
In contrast, the ICCPR and the statutes of
the various international criminal tribunals all
explicitly guarantee the right of the defendant to
interpretation services. (57) This guarantee traces back
to the post-war military tribunals; in Nuremberg (58)
and Tokyo, (59) defendants were explicitly granted the
right to interpretation services. International criminal
judges are given no discretion in this regard, which is
proper considering the fact that, for every
international criminal tribunal, all trials are
multilingual and multicultural. (60)
Although the
ICCPR and the statutes of the international criminal
tribunals have identified the rights to be protected, it
remains necessary to determine what actual practices and
procedural rules will be necessary to "safeguard the
individual rights in each stage of the procedure." (61)
As the Human Rights Committee of the U.N. acknowledged
in its General Comment on ICCPR Article 14, "The
requirements of paragraph 3 are minimum guarantees, the
observance of which is not always sufficient to ensure a
fairness of a hearing." (62)
Thus, the Rules of
Procedure and Evidence of the various tribunals include
a variety of specific provisions meant to ensure that
the more general rights promised in the tribunals'
statutes are protected. (63) This Article focuses on the
procedural and evidentiary rules pertaining to language.
The ICTY and the ICTR Rules of Procedure and
Evidence contain mirror-image rules that explicitly
recognize the right of the accused to use his or her
language. (64) Witnesses and any persons appearing
before the tribunals other than as counsel who do not
speak French or English to their own level of comfort
may similarly use their own native languages. (65)
Counsel for an accused may also apply for leave to use
the native language of the accused or a language other
than English or French. (66) Finally, the rules make
explicit that the Registrars of the respective Tribunals
are responsible for arranging for interpretation of
testimony and translation of documents into and out of
the two working languages. (67) To this end, the
Registrars of both tribunals have established special
language sections. (68) Drawing on the experience of the
ad hoc tribunals, the ICC has put into place a similar
regime, although it has not yet been battle-tested. (69)
It remains to be seen how well the ICC's regime will
cope with the greater linguistic challenges that the ICC
will face.
History has demonstrated that
protections of the due process rights of the accused
have improved as each of the international criminal
tribunals did their work. (70) As Meron notes, "One of
the principal criticisms of the Nuremberg and Tokyo
Tribunals was, and is, that they were victors' courts
trying the vanquished." (71) This criticism "resonates
most strongly in the context of due process
protections." (72) However, despite the vagueness of the
London Charter that created the Nuremberg trials, when
it came to due process, the procedural rights granted to
the defendants at the trials in many ways exceeded those
that persisted in any of the allies' domestic systems.
(73) More importantly, however, the general perception
that the Nuremberg trials were fair made it possible for
a later generation to assemble the political will
necessary to create the modern ad hoc tribunals. (74) In
turn, as Cassese notes, the perceived success of the
ICTY and ICTR in effectively respecting the rights of
the accused while bringing the guilty to justice
revitalized longstanding plans to establish a permanent
international criminal court. (75)
Procedural
fairness is an intractable concept and difficult to put
into practice, especially considering the different--and
in places incompatible--procedural systems that are
amalgamated in international criminal procedure. It is
indisputable, however, that international criminal
tribunals must ensure that their procedures do more than
the bare minimum to provide for the participants'
rights. Ineffective protections are barely better than
no protection at all. Part VII, infra, will explore what
practices and procedural rules will help minimize the
impact that alteration of testimony by interpretation
has on the procedural rights set out above. (76)
III. THE HISTORY AND MECHANICS OF COURTROOM
INTERPRETATION
Most linguistic texts on
interpretation begin by distinguishing interpretation
from translation. (77) The word "translation" refers to
"the transfer of thoughts and ideas from one language
(the source language) into another (the target
language)," in either written or oral form. (78)
Interpretation, on the other hand, encompasses only oral
communication and is defined as "situations in which one
person speaks in the source language, an interpreter
processes this input and produces output in the target
language, and another person listens to the interpreted
target language version of the original speaker's
message." (79) For present purposes, interpretation may
be considered the more or less contemporaneous rendering
of utterances into their equivalents in another
language. (80) Part III describes the different types of
interpretation, the origins and mechanics of modern
courtroom interpretation, and the interpretation of
paralinguistic (non-verbal) communication. (81)
A. Types of Interpretation
The two types
of interpretation commonly used in courtrooms are
consecutive and simultaneous. (82) In consecutive
interpretation, the interpreter talks during pauses
between the speaker's utterances. (83) In simultaneous
interpretation, the speaker's utterances are interpreted
continuously, but inevitably with a slight lag. (84)
Consecutive interpretation is often preferred for
opening and closing statements and when a judge
questions the witness because it gives the interpreter
more time to consider nuances and therefore is more
accurate. (85) Conversely, interpretation for the
defendant's benefit is always performed simultaneously,
and examination of witnesses often involves a rapid
back-and-forth and conversational flow that requires
simultaneous interpretation. (86) Simultaneous
interpretation can be performed with or without the aid
of electronic equipment; the latter method is called
chucotage and involves the interpreter standing next to
the witness and whispering into his or her ear. (87)
In practice, nearly all interpretation in
international criminal trials is simultaneous.
Interpreters tend to prefer to work simultaneously, so
as to preserve the flow of the translated speech. (88)
More importantly, consecutive interpretation can be
slow. At the 1945 San Francisco Conference at which the
U.N. Charter was drafted, consecutive interpretation was
used exclusively and "[s]essions were delayed
interminably while translators slogged along well in the
wake of the proceedings." (89) International criminal
trials often last years--in any event, much longer than
the San Francisco Conference--and the utterances of the
parties must be rendered at the same time into multiple
languages. (90) Consequently, as a practical matter,
international criminal courts must rely on simultaneous
interpretation. (91)
B. Origins of Courtroom
Interpretation
Interpretation today is taken for
granted at multinational events, and there are permanent
booth installations for interpreters at most major
conference halls. (92) However, interpretation of
complex, multilingual proceedings did not exist in any
recognizable form until around 1920. (93) Prior to World
War I, diplomats of every country spoke French. (94) At
the League of Nations and inter-war conferences, the
desire to accommodate as many countries as possible led
first to the use of consecutive interpretation (95) and
then to the adoption of the Filene-Findlay translation
system, which IBM developed and manufactured. (96)
However, this system was not really simultaneous
interpretation; pre-translated speeches were broadcast
simultaneously in different languages, and a selector
switch at each seat enabled participants to choose a
language in which to listen to the speech. (97)
True simultaneous interpretation into multiple
languages was developed for the first Nuremberg trial.
(98) While the trials were still in their planning
stages, the need for spontaneous, immediate,
multilingual interpretation became obvious, (99) as did
the difficulty of putting it into practice. (100) At one
of the organizational meetings for the Nuremberg
tribunal, the chief U.S. prosecutor, Supreme Court
Justice Robert H. Jackson, stated:
I think that there is no problem that has given me as much trouble
and as much discouragement as this problem of trying to conduct a
trial in four languages. I think it has the greatest danger from
the point of view of the impression this trial will make upon the
public. Unless this problem is solved, the trial will be such a
confusion of tongues that it will be ridiculous, and I fear
ridicule much more than hate. (101)
U.S.
Colonel Leon Emile Dostert, who had been General
Eisenhower's personal interpreter during World War II,
was the first to realize that the Filene-Findlay
equipment, with some modifications, could be used for
the spontaneous and immediate interpretation needed at
Nuremberg. (102) Under Dostert's direction, the
technical problems were largely solved, and he became
the first chief interpreter at the Nuremberg trials.
(103) The interpretation that occurs today in domestic
courts, international business conferences, U.N.
committees, and international criminal tribunals is a
direct descendant of the Nuremberg system. (104)
C. Mechanics of Modern Courtroom Interpretation
Language interpreting is difficult. (105) It is
a popular misconception that any bilingual person would
make an adequate interpreter, but bilingualism is "only
the starting point." (106) Alfred Steer, who directed
the language interpretation office at Nuremberg, found
that only about five percent of the experienced
translators whom he interviewed would be able to perform
the simultaneous interpretation needed at the Nuremberg
trials. (107) Today, the overall pass rate for the U.S.
Federal Court Interpreter Certification Examinations is
just four percent. (108) Similarly, to work as
international conference interpreters for bodies such as
the U.N. and the international criminal tribunals,
candidates must demonstrate proficiency through a series
of oral tests and recorded interpretation performances
that are judged by a panel of experts. (109) The vast
majority of candidates fail, including most graduates of
the few interpretation schools that have been
established. (110)
Interpreters must engage in
"attending," as distinguished from hearing. Attending is
the most deliberate form of listening; it requires a
concerted effort to process the incoming message. (111)
Only after the interpreter has fully heard and
understood a source utterance can he or she reformulate
it in the target language. (112) Ideally, that
reformulation should be accomplished "without editing,
summarizing, deleting, or adding while conserving the
language level, style, tone, and intent of the speaker."
(113)
In addition, in either the consecutive or
simultaneous mode, interpreters must be able to work
speedily. The flow and cadence of speech is an important
aspect of meaning, and the proceedings should not be
allowed to drag on too slowly. Accordingly, there is a
strong perception in the interpretation community that
academic linguists tend to make poor courtroom
interpreters because they are too concerned with
achieving perfect equivalence in their interpretations.
(114) Simultaneous interpretation is too fast for
fastidiousness. Highly-educated linguists often "can't
reconcile all that they know and have learned about
language work with the business of giving an instant
solution, as you have to." (115)
Finally,
interpreters must be careful not to editorialize,
bowdlerize, or otherwise distort the meaning of a
party's utterances. The interpreter is an officer of the
court, akin to a second court reporter. Just as the
reporter's transcript is the official record of the
words spoken in court, not the actual words themselves,
the court interpreter's version of the testimony is the
basis for the reporter's transcript, not the original
testimony itself. (116) Thus, for example, if an
interpreter is faced with a witness giving rambling or
non-responsive answers, "the interpreter should
interpret the answer of the witness, neither editing nor
adding to the witness's words." (117) It is up to the
court to determine whether an answer is responsive.
At Nuremberg, interpreters worked from their
native languages, interpreting into their second
languages. (118) That is, a native German speaker would
translate a German witness's testimony into English.
(119) Today, interpreters work in the reverse; they are
thought to be more accurate when translating into,
rather than out of, their native languages. (120)
Interpreting into one's native language also has
the benefit of eliminating difficulties arising from
interpreters' accents. The U.S. and British judges at
Nuremberg found that it was tiring to listen to
heavily-accented English for hours on end. (121) Indeed,
Alfred Steer arranged for the interpreters whose native
language was not English to undergo accent-elimination
training to help mitigate the problem. (122) The modern
practice of translating into one's native language
nearly eliminates the need for such training.
In
multilingual international criminal courtrooms, a bank
of interpreters sits either in the courtroom or in
separate soundproof booths (to reduce the effects of
ambient noise--this is the preferred arrangement) where
they can see the lawyers and witnesses. (123) A team or
shift of interpreters includes at least one interpreter
for each source and each target language spoken or
understood in the trial. (124) A backup interpreter is
present for each one currently interpreting, to step in
if the interpreter falters and to alternate at regular
intervals. (125) In addition, to help manage
interruptions, check for errors, and direct the
switching-off of interpreters, a supervisor, called the
"monitor," is always present and listening in on the
various interpretation feeds. (126) If the monitor
disagrees with an interpretation, he or she can cut in
to notify the judges. (127) In addition to the obvious
benefit of correcting the record, such instances of
interruption help the judges by showing them the
different colors of meaning that could attach to a
witness's or advocate's statements. If nothing else, the
fact that a difference of opinion exists as to the
proper translation signals to the judges that close
attention should be paid to the testimony in question.
Sometimes an interpreter will not clearly hear
or understand some utterance, whether because of low
speech volume, a lawyer and witness talking over one
another, or an unfamiliar colloquialism. (128) In such
instances, the interpreter must interrupt to clarify. At
times this can be difficult, such as when a
cross-examination becomes heated, a lawyer raises an
objection, a witness breaks down on the stand, or
arguments over motions occur. (129)
The
Nuremberg interpreters realized before the beginning of
the trial that some interpretation errors would be
unavoidable. (130) Consequently, a written transcript
(separate from the court reporter's transcript) was
typed each day from recordings of what the interpreters
heard and spoke so that court officials could resort to
it when there were disagreements over the translation.
(131) Each day, the interpreters who were not on duty
would review the record and edit it to correct mistakes.
(132) These transcripts were relied upon heavily: "the
difficulties in translation among the various witnesses
often made it necessary for Tribunal members to review
translated transcripts after the fact along with volumes
of other documentary evidence." (133)
Today, a
simultaneous transcript of the interpreted testimony
appears on monitors placed on each desk in the
courtroom, so that parties, counsel, and judges can read
it and watch for inaccuracies. (134) When an interpreter
realizes that he or she has made an error, the correct
procedure is to wait for a pause in the proceedings to
make a clarification. (135) The errors that are
corrected are read into the official record, so that
when judges review the record they can see that a
clarification was made. (136) Parties bear the
responsibility to check the transcripts for errors and
to object to any errors they discover. (137)
D.
A Note on Paralinguistic Interpretation
An
important aspect of interpretation generally, but
particularly in the courtroom, is conveyance of the
"paralinguistic" aspects of a speaker's communication,
i.e., the emotional content and background of
utterances, as expressed through the speaker's body
language, linguistic style and nuance, pauses, hedges,
self-corrections, hesitations, and displays of emotion.
(138) Interpreters "must find ways to modify their
voice, in tone and in volume, to convey these types of
messages." (139)
Linguists have long recognized
that humans communicate not just in words, but also in
"facial expressions, posture, tone of voice, and other
manifestations." (140) According to one study, the
denotative meanings of the actual words spoken account
for only about 7% of communication, while 38% is tonal,
and the remaining 55% is body language. (141) The legal
consequences of mistranslation of paralinguistic
communication will be discussed further below, but it
should be noted here that at least some U.S. courts, if
not yet international ones, have recognized the
"centrality of language to individual personality and
the interpretation of meaning." (142)
Accurately
interpreting the full contextual meaning of an utterance
requires the interpreter to possess a "high level of
cross-cultural awareness and sophisticated skills,
including the ability to manipulate dialect and
geographic variation, different educational levels and
registers, specialized vocabulary, and a wide range of
untranslatable words and expressions." (143) Conveying
emotional content can be particularly difficult when the
interpreter is faced with a witness speaking in an
unfamiliar slang or dialect. For example, Spanish has at
least nineteen identifiable dialects (144) and Chinese
has ten major sub-groups divisible into nearly one
thousand dialects. (145) The interpreter's failure to
recognize regional or class differences in accent and
vocabulary can lead to serious miscommunications. (146)
It can also give rise to linguistic disputes that cannot
be resolved. During the Tokyo trials, one witness
rebutted a defense challenge of his testimony by
"explaining that the objector understood only colloquial
Outer Mongolian, whereas he was speaking classical Outer
Mongolian." (147) As there was no translator available
who was sensitive to the differences between colloquial
and classical Outer Mongolian, the court had no choice
but to rule on the objection from a position of
ignorance. (148)
What makes paralinguistic
communication so important in the courtroom is that
judges assess the witnesses' credibility based not only
the witnesses' words, but also on their tone and
demeanor. Triers of fact "need to have a clear
understanding of the emotions such as anger, fear,
shame, or excitement that are expressed by witnesses."
(149) However, gaining such a clear understanding is
made exponentially more difficult by cultural
differences and the interposition of an interpreter.
IV. THE INHERENT INDETERMINACY OF TRANSLATED
LANGUAGE
Several of the Nuremberg defendants, by
way of reinforcing their defense of superior orders,
complained that English translations of the German
concept of Fuhrerprinzip--the "principle of total
obedience to the leader"--could not convey the
seriousness and depth of the duty or its central place
in German culture. (150) Such disputes arise frequently
in international criminal proceedings, but are not
unique to them. It is obvious to anyone who has studied
a foreign language that words in one language cannot
perfectly capture the meaning of an utterance in another
language. In this way, interpretation is at least as
much an art as it is a science. (151)
What makes
interpretation so difficult is that it is useless to
translate words into their literal equivalents because
people do not communicate only by the strict denotative
meanings of words. Ideally, all interpretation aims to
achieve an "integral communication of meaning" that
centers on ideas expressed rather than individual words
uttered. (152) Specifically, an interpreter must
reformulate source utterances into their experiential,
contextual, and phenomenological equivalents in the
target language, (153) doing his or her best to preserve
the import of the speaker's words, phrases, colloquial
expressions, gestures, and the like.
The two
main factors that contribute to the inherent
indeterminacy of translated language are diversity in
syntax and vocabulary between languages, and the problem
of cross-cultural communication.
A. Diversity in
Syntax and Vocabulary
The vocabularies of
different languages do not overlap exactly. Many
expressions and basic ways of speaking are not literally
translatable because they have no equivalents in other
languages. In such cases, the best an interpreter can do
is to find an expression in the target language that is
the rough equivalent of the one in the source language,
or briefly to explain the general import of the source
language expression.
The different sentence
structures (syntax) of different languages also mean
that sentences cannot be perfectly interpreted. The
intensity of this phenomenon varies depending upon how
closely related the source and target languages are.
When interpreting between languages that employ similar
sintaxes, such as French into English, the interpreter
must translate the words but generally need not
restructure the sentence because the languages use
similar syntax. (154) However, translating between
German and English (for example) is more difficult
because in German sentences, the main verb comes at the
end of a sentence. (155) Peter Uiberall cited what he
called a "classic example" from the first Nuremberg
Trials of the interpretation difficulties such
structural differences can cause:
[A] former Nazi official on the witness-stand is asked, 'Did you
know Mr. Sehmidt?' [The name is made up.] And let us say Mr.
Sehmidt was a concentration camp Commandant, and having known him
would be incriminating. The witness starts 'Ja, den Schmidt, den
habe ich im Jahre Funfunddreissig oder nein im Jahre
Sechsunnddreisig, da habe ich den Schmidt ...' You still don't
know. Has he seen him, has he known him, has he spoken to him, has
he heard of him? All this can follow the verb at the end. So the
poor interpreter cannot start, unless he [says something like]
'Yes, er, no, er, Schmidt, well, with regard to Schmidt, was it in
thirty-five or thirty-six, was it in Leipzig or was it in Dresden,
I'm not quite sure, it was then that ...' Yon have to turn the
sentence around completely, in order to be free to speak when he
speaks, or else you lose him and you cannot catch up. (156)
Such
convoluted sentences involving structural
complications--which are pervasive in natural,
colloquial speech--can also put the interpreter into a
bind as to whether to interpret a statement like the one
quoted above simultaneously or consecutively. If the
interpreter chooses simultaneous interpretation (the
more likely choice, because changing modes would
interrupt the flow of the examination), the problem
described by Uiberall will arise. Compounding matters,
when an interpreter does turn the sentence around to
make it structurally coherent, the interpreted
testimony, full of "ums" and pauses, will sound like
prevarication to a judge. If the interpreter chooses to
wait until the end of the witness's statement and then
to interpret consecutively, the gap in the translation
will confuse those listening to the interpreter.
B. Cross-Cultural Communication
Communicating across languages necessarily
involves communicating across cultures, (157) and the
problems involved in cross cultural communication have
received more attention from scholars than any other
aspect of interpretation. This Subpart focuses on the
linguistic complications that arise due to the
multicultural nature of international criminal
proceedings. However, the issues associated with
multicultural participation in those proceedings are
broader. Most significantly, the participants in the
trial--the accused, witnesses, and victims--as well as
the entire affected populations come from different
cultures than those that shaped the international
criminal institutions and have dominated international
law for centuries. This lack of "cultural proximity" may
undermine the ability of the participants to "present
[their] claims, lines of argument, stories and concerns
in a way that is readily understood by the court
officials," which in turn diminishes the worth of
international criminal proceedings for the participants.
(158)
In linguistics, the cultural contingency
of language is universally accepted. (159) The U.S.
Supreme Court has given legal force to this notion:
"Language permits an individual both to express a
personal identity and membership in a community, and
those who share a common language may interact in ways
more intimate than those without this bond." (160) It is
thus not surprising that the legal literature is rife
with examples, explanations, and denunciations of the
phenomenon of witnesses and defendants being
misunderstood because of cultural differences. (161) For
example, "[p]rejudicial misimpressions may result
because a defendant fails to make eye contact with the
jury ...[,] speaks in a voice unnaturally loud or soft,
or appears without emotion. These and other forms of
non-verbal communication may be misinterpreted because
of cultural differences." (162) While such problems
cannot be eliminated, they can be minimized by educating
interpreters about the culture of the participants.
(163)
Of course, some of this misunderstanding
is due to bias and ethnic, religious, or racial
prejudice of trial participants. Bias on the part of
translators may also contribute, although this effect
appears to be less frequent than in the past. (164)
Various techniques have been proposed for accounting for
bias and reducing its impact, but these techniques are
beyond the scope of this Article, except to emphasize
that interpreters and judges must be aware of and
sensitive to the issue.
In a trial,
cross-cultural communication difficulties impact most
significantly on the ability of triers of fact to assess
the weight that should be given to different witnesses'
testimony. People tend to believe themselves to be good
judges of others' character, but the evidence
contradicts such widespread self-satisfaction. (165) In
assessing another's trustworthiness, observers usually
focus on the most obvious mannerisms: whether a speaker
looks his or her interlocutor in the eye, fidgets,
stammers, and the like. (166) However, the cues and
mannerisms that people take for granted as indicating
honesty or deception--and body language in general--vary
from one culture to another and are more difficult to
control than the words used. (167) In addition, the
"they all look the same" phenomenon comes into play;
even people without any racist animus tend to have
difficulty telling apart the faces and deciphering the
facial expressions of members of other ethnic groups.
(167) In a different context, that of interviewing
applicants for asylum, an Australian court took notice
of these difficulties:
Reliance upon demeanour as a determinant of credibility requires
the exercise of great care, even by the most experienced arbiters
of fact, and it may be unsafe to do so where the witness provides
evidence in a foreign language and the tribunal receives only the
interpreter's understanding of the witness's account. (169)
A
final complication is that the strained, impersonal, and
adversarial atmosphere of the courtroom makes the
problems associated with cross-cultural communication
particularly difficult to overcome. Members of different
cultures have the best chance of overcoming their
prejudices and working together when "their contact is
intimate, on equal terms, and perceived as rewarding
rather than antagonistic," (170) all of which is
unlikely in the case of a genocidal perpetrator and a
witness to genocide.
V. EXTRINSIC SOURCES OF
ALTERATION OF MEANING IN TRANSLATED TESTIMONY
In
addition to the fact that interpretation by its nature
changes the meaning of utterances, a variety of other
factors contribute to the alteration of testimony, the
most important of which are interpreter fatigue, an
interpreter's lack of relevant extralinguistic
knowledge, and difficulties associated with the
cross-examination of witnesses through interpreters.
(171) Part V discusses each of these factors, then
proceeds to analyze the special challenges presented by
the international criminal context.
A.
Interpreter Fatigue
Interpretation is an
intense, exhausting activity. Alfred Steer wrote, "You
need a certain amount of absolutely iron nervous
control, so that you can absolutely rely on the fact
that you're never going to stutter or stop, ever." (172)
As the speed and duration of interpretation increase,
the possibility for error increases, (173) so time
limits must be established, with a second interpreter
standing by for each interpreter currently working.
Accordingly, U.N. interpreters (including those at the
international criminal tribunals) are not permitted to
interpret simultaneously for more than thirty
consecutive minutes. (174) However, to cut down on
mistakes due to fatigue, interpreters try to switch off
every twenty minutes or so, if possible, either during
natural breaks in the testimony or between witnesses.
(175)
Another method employed to mitigate the
effects of mental exhaustion and help maintain
consistency is to have interpreters interpret in only
one direction. (176) If, for example, an interpreter
interprets from Serbo-Croatian to French, she will never
interpret from French to Serbo-Croatian. (177)
Beyond the inevitable fatigue, even
highly-trained interpreters sometimes falter because of
sudden fatigue, sickness, or strong emotion. At
Nuremberg, there were "repeated instances where an
interpreter would simply fail, break down, be unable to
continue, and we would have to put in a substitute at as
short notice as possible, so that the court wouldn't be
delayed any more than need be." (178) Sometimes, the
backup interpreter or the monitor is able to tell that
an interpreter is about to break down and can get ready
to step in. (179) In addition, simultaneous
interpretation is not exactly simultaneous; there is a
six to eight second lag called the decalage between the
interpreter hearing a word in the source language and
speaking it in the target language. (180) As Steer
discovered, "If the lag got longer [than eight seconds],
the interpreter would soon get into trouble, because you
can only hold a very limited number of words in your
memory under [courtroom] conditions." (181)
Different tribunals have devised different
systems to deal with flagging interpreters. (182) At
Nuremberg, the interpreters used a lights system to
signal the judges. (l83) Steer, who often acted as
monitor, devised "a system of two lights: a yellow one
meaning 'Please slow down,' and a red one meaning
'Please stop the proceedings momentarily.' I'd press the
red one, which was in front of Lord Justice Lawrence
[the presiding judge], he would stop everything, and I'd
make the shift." (184) In addition, a complete separate
team of interpreters was kept on hand at all times in
the courtroom to avoid having to stop the proceedings
because of a missing interpreter or one who broke down
under the strain. (185)
B. Extralinguistic
Knowledge
To be effective, interpreters must
possess extralinguistic knowledge relevant to the
proceedings, which means they must have good command of
relevant specialized vocabulary beyond ordinary fluency
in the source and target languages. Most obviously, this
implies knowledge of legal proceedings and jargon.
DeJongh cites the following example, which occurred in a
state court in California:
Judge: "Do you waive
further notice of this date?"
Spanish
Interpreter: "?Ud despide que se le deje saber de otras
informaciones en este caso?" ('Do you wave [good-bye] to
receiving other information about this case?'). (186)
To avoid such misunderstandings, interpreters at
the international criminal tribunals, as part of their
training, are expected to "familiarize themselves with
... the Tribunal's Rules of Procedure and Evidence ...
includ[ing] reading Tribunal judgments, Decisions,
Prosecution and Defense Motions, [and] expert reports
submitted by expert witnesses at the Tribunal." (187)
Extralinguistic knowledge goes beyond legal
jargon. Peter Uiberall recalls an urbane and
well-educated German-English interpreter at Nuremberg
who had particular difficulty interpreting a certain
witness's testimony regarding forced labor in the potato
fields: "He could have handled Nietzsche or Schopenhauer
very well, but ... couldn't figure out for the life of
him what 'eyes' had to do on potatoes." (188) Even
without issues of vocabulary, extralinguistic knowledge
of the context of testimony can be all-important in
selecting a proper interpretation. Richard Alderman, the
ICTR interpreter, cites the following example:
In [Rwanda] ... much is made about the plane of President
Habyarimana crashing. It occurred on 6 April 1994, a date you will
hear at ICTR at least ten times daily. The genocide began that day.
Much debate surrounds the circumstances of that crash. The plane
was shot down, but there is debate as to who did it. The RPF
[Rwandan Patriotic Front]? The Hutu extremists? One expert witness
was testifying and the interpretation of the "plane crash" came out
as "l'accident" in French. Now of course implying that it was an
"accident" prompted the French-speaking defence lawyer to question
the witness as to why such a theory could be developed. Did the
witness have information suggesting that it was an accident and not
an attack? The debate took this unexpected turn and went on for a
while, all the result of a slight modification of the original
meaning. (189)
In general, interpreters
must have a background broad enough to include "a wide
range of vocabulary and an ability to assimilate a
variety of subjects." (190) The best interpreters are
ones who have spent several years living and working in
places where the source and target languages are spoken
(191) and have specialized training or experience in
areas relevant to the trial. (192)
C.
Cross-Examining Witnesses through Interpreters
Lawyers often find it difficult to examine
witnesses through an interpreter. In particular, a
lawyer will aim to take control of a cross-examination
by "driv[ing] it through at the speed he dictates, not
allowing the witness breathing space or a chance to draw
red herrings across the line of questioning." (193)
Attorneys thus have particular difficulty adjusting to
the pace of cross-examination though interpreters; they
resent having to speak slowly and complain that
cross-examination is rendered ineffective when
interpretation breaks the flow of the examination. (194)
For this reason, defendants usually demand simultaneous
interpretation when they testify, even if they speak the
language of the examining attorney. (195) Simultaneous
interpretation also gives defendants extra time to think
of their answer to each question, an advantage some are
able to exploit to reduce the impact of the cross
examination. (196) The most well-known example from the
Nuremberg trials of interpretation gone awry is also a
lesson in how a savvy defendant can manipulate
interpretation to his advantage. At a climactic moment
of his examination of Hermann Goring, Justice Jackson
(197) was forced to withdraw an important piece of
documentary evidence that he believed conclusively
demonstrated Germany's intention to take control of the
Rhineland as early as the spring of 1935. (198) The
document was a list of orders signed by Goring that
included one order for the "Freimachung des Rheins"
(literally, "free-making of the Rhine"). (199) While
this phrase could mean "clearing of the Rhine," it had
been translated as "liberation of the Rhineland." (200)
When Jackson brandished the document as proof of the
German intention to retake control of the Rhineland,
Goring successfully argued that the document was merely
a routine administrative order referring to the dredging
of the Rhine River in order to open the river to larger
ships. (201)
In general, the insertion of any
buffer between lawyer and witness shields the witness,
making it easier to get away with prevarication and
stalling. (202) When a lawyer does manage to conclude a
quick and skillful cross-examination (with the
interpreters struggling to keep up) the effect may be
lost on the judges, who, relying on the interpretation,
miss the dramatic power of the questioning. (203) When
the examining lawyer and the witness speak the same
language, the problems of interpreting the exchange into
the court's working languages can actually be
exacerbated because lawyers and witnesses who speak the
same language tend to speak faster and more
colloquially. (204)
D. The Special Challenges
Presented by International Criminal Tribunals
In
international criminal trials, all of the problems
associated with interpretation discussed above are
amplified. Indeed, interpreters working for the
international criminal tribunals report that the work is
unlike--and more difficult than--simultaneous
interpretation in any other context. (205) Simply put,
interpretation at an international criminal proceeding
is a much more complex undertaking than in national
courts. (206) Of immediate interest is that every
proceeding involves at least three languages: French,
English (the working languages of the tribunals), and
the native language of the defendant.
Because
the international criminal tribunals have multiple
working languages, everything must be translated into
and from each of the working languages. (207) This has
the effect of doubling both the workload of the
translators and the opportunities for testimony to be
altered. (208) As discussed below, the fact that the
judges may listen to either the French or the English
audio means that they may hear testimony that differs
substantially. (209)
In addition, the fact of
multiple working languages can create unexpected
complications outside the courtroom. Judge Patricia M.
Wald, formerly of the ICTY, describes herself as having
been able speak only "a high school smattering of
French" when she arrived in The Hague. (210) She
relates,
[O]utside the courtroom we were on our own as far as communication
with colleagues was concerned. That made for some difficulties in
deliberations among the judges, and since most of the legal
assistants assigned to the French Chamber also spoke primarily
French, it meant much juggling for an English-speaking judge like
me to figure out what they were saying in their memoranda and
research. (211)
Beyond the matter of
multiple working languages, there are many more
witnesses than in a typical national trial, and the
witnesses tend to come from different cultures and speak
different languages than the prosecutors and judges (and
often the defense counsel as well). (212) At the same
time, international criminal proceedings are often more
dependent than are national courts upon witness
testimony, particularly that of eyewitnesses. (213) At
Nuremberg, this reliance on witness testimony was not as
much of a problem; as Justice Jackson explained in his
opening statement, "The Germans were always meticulous
record keepers, and the[] defendants had their share of
the Teutonic passion for thoroughness in putting things
on paper." (214) Thus, "rather than basing its case
primarily on witness testimony, the prosecution was able
to rely heavily on the defendants' own words and records
to prove its accusations." (215) Modern war criminals
have proved less fastidious at maintaining their records
than were the Nazis, so modern prosecutors have not been
able to make their cases primarily on documentary
evidence. (216)
Moreover, the post-war
International Military Tribunals benefited from "the
extensive police powers that the Allies exercised in
occupied Germany," which gave them "an
evidence-gathering apparatus that any prosecutor would
envy." (217) By contrast, the ad hoc tribunals and the
ICC do not enjoy a general police power that would
enable them to search for documentary or circumstantial
evidence. (218) This lack of an autonomous
evidence-gathering capacity further contributes to the
dependence of the international criminal tribunals upon
witness testimony.
International criminal
tribunals are dependant upon witness testimony not only
to establish the involvement of the individual defendant
in the acts identified in the indictment, but also to
prove the defendant's knowledge of the acts and the
intent with which he or she committed them. (219) Aside
from the standard problems associated with proving
intent, understanding such concepts as honor, duty, and
obedience is fundamental to determining why a particular
defendant acted the way he or she did. (220) The meaning
of testimony on these topics may be only subtly altered,
but those subtleties go to the heart of mens rea.
Furthermore, each of the crimes that
international criminal tribunals are convened to
prosecute emphasize intent: genocide, crimes against
humanity, and war crimes. (221) According to the ICC
Statute's definition, genocide is merely murder unless
"committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group"; (222)
crimes against humanity are identifiable when they are
"committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge
of the attack"; (223) and war crimes are distinct from
other violent crimes in that they are "committed as part
of a plan or policy or as part of a large-scale
commission of such crimes." (224)
An added layer
of difficulty is that evidence of mens rea is likely to
be given in colloquial and culturally-specific terms,
and thus is particularly open to challenges over the
proper translations of expressions and euphemisms. (225)
The ability of judges at international criminal
tribunals to assess the credibility of witness testimony
is thus both unusually important and unusually
difficult. As Judge Wald writes,
My distinct impression is that most witnesses before the ICTY tell
the truth as to the core of their experience ... [B]ut war crime
witness testimony may be compromised by the speaker's desire for
the trial to have concrete results ... at the same time, judges'
ability to assess witnesses' credibility is diminished ... because
the counsel and witnesses are speaking in several languages
simultaneously and the trials can go on for months or years. (226)
One
example of specialized vocabulary that commonly arises
in international criminal proceedings is that of ethnic
slurs and related epithets. (227) Such terms are fraught
with historical and current social significance, so a
proper understanding of their meanings is critical to
interpretation, especially to shed light on the
perspectives of witnesses and intent of the accused.
Thus, in international criminal trials, ethnic slurs in
particular "must be understood both in their historical
context and in the context in which they were used
during the conflict." (228)
In addition, the
heinous nature of the crimes prosecuted by international
criminal tribunals means that the testimony presented is
often grisly and disturbing. (229) Many of the witnesses
are themselves victims of atrocities, which affects both
witnesses and interpreters. First, the delay caused by
interpretation can rattle witnesses and exacerbate the
stress and fear that they are already experiencing.
(230) Second, the disturbing nature of the testimony
tests the nerves of even the most well-trained
interpreters. At Nuremberg, many of the German-English
interpreters were U.S. Jews who had grown up in Germany
and emigrated to the United States either before or
during the Nazi regime. (231) They sometimes broke down
in the interpreters' booths, unable to continue knowing
that they sat so close to those responsible for the
murder of their relatives. (232) Even the highly-trained
and professional corps of interpreters working at
today's international criminal tribunals sometimes
experiences this type of problem. (233)
The
nature of the crimes concerned also makes interpreters
more likely--whether consciously or unconsciously--to
editorialize. (234) Alfred Steer cites the example of
Virginia Grey, a German-American interpreter at
Nuremberg who found herself unable to say some of the
words that needed translating. (235) Steer noticed the
problem when a particular concentration camp guard was
on the witness stand and used especially derogatory
language. (236) At one point he said, "You just had to
piss on the Jews" ["auf die Juden pissen']. (237) Grey
translated this as, "You just had to ignore the Jews."
(238) While such problems do not arise as often today,
they do still occur. (239)
International
tribunals are also more likely than national ones to
require double-interpretation, which occurs when
speakers of less commonly spoken languages are called
upon to testify. (240) The tribunal may not have staff
interpreters qualified to interpret between a witness's
language, the official languages of the court, and the
language of the defendant, so a two-stage interpretation
is performed. (241) For example, double interpretation
occurred in Nuremberg when a Belgian who spoke only
Flemish testified regarding the destruction of the
library of the University of Louvain in Flanders. (242)
A Flemish-English interpreter would stand next to the
witness and interpret via chucotage, then the
interpreters in the booths would continue the
interpretation from there. (243) In the early stages of
the proceedings under the ICTR, Kinyarwanda-speaking
interpreters were in short supply, so double
interpretation was commonplace. (244) Two-stage
interpretation exacerbates both the inherent alteration
of testimony caused by interpretation and the likelihood
of errors.
Although this Article does not deal
directly with the translation of witness statements and
other written documents, it should be noted that such
translation presents its own problems. Most notably, the
sheer volume of documents that must be translated into
several official or working languages of a tribunal
creates unacceptable delays. (245) Judge Erik Mose of
the ICTR describes the situation:
The Tribunal also had problems with disclosure of witness
statements and other documents to the defense, as well as with a
need to translate thousands of pages into the two official
languages of the Tribunal. A working group has found ways to speed
up translation of documents, thereby reducing delays in judicial
proceedings. Techniques have been developed to reduce the volume of
documents that require translation. However, the Tribunal still has
to prioritize. This is not an easy task because the translation
services work for the Appeals Chamber, the three Trial Chambers,
the Prosecution, the Defense, and the Registry. (246)
Despite
these acknowledged difficulties, translation of written
documents has become more commonplace in the
international criminal tribunals because parties
increasingly use written documents instead of oral
witness testimony. (247) This change from oral to
written testimony is primarily intended to save time at
trial, since documents can be pre-translated and then
simply introduced into evidence at trial. (248) Although
oral witness testimony will likely remain the
evidentiary mainstay of international criminal trials,
greater use of written testimony deserves attention
because it will affect the role of interpreters and the
nature of interpreted testimony.
As the slow
pace of international criminal trials can itself be seen
as infringing the right of the accused to a speedy
trial, on September 13, 2006, the ICTY amended Rule
92bis of its Rules of Procedure and Evidence and added
Rules 92ter and 92quater. (249) The new rules permit the
introduction of written evidence in broader
circumstances than had previously been allowed. (250)
Taken together, the amended rules provide a robust
system for the admission of written evidence in lieu of
oral testimony. (251) As is usual with the introduction
of written testimony, the rules' primary concerns are
protecting the accused's right to confront adverse
witnesses (especially with respect to cross-examining
them) and ensuring that those writings introduced into
evidence are true and an accurate reflection of the
witness's authentic testimony. (252)
Rule 92bis
establishes the parameters for the admission of written
statements and transcripts. (253) It permits a trial
chamber to "dispense with the attendance of a witness in
person" by allowing the introduction of a written
statement or transcript of evidence previously given.
(254) The rule then provides a list of factors that the
trial chamber should consider in making such a decision.
(255) Generally speaking, the trial chamber must balance
the efficiencies to be gained and the benefits to the
witness from admitting written testimony against the
risk that false evidence will be introduced and the
right of the accused to confront adverse witnesses will
be compromised. (256) If the trial chamber does admit a
witness's evidence in the form of a written statement or
transcript, a witnessed declaration of its truth to the
best of the witness's knowledge must accompany that
evidence, (257) and the trial chamber may still require
the witness to appear for cross-examination. (258)
Under Rule 92ter, notwithstanding the provisions
of Rule 92bis, written evidence may be admitted of
witnesses who: (i) are present in court, (ii) are
available for cross-examination and questioning by the
judges, and (iii) can attest in court that the written
statement that was introduced reflects both the
witness's actual previous declaration and what the
witness would say under direct examination. (259)
Finally, Rule 92quater permits the admission of
written statements of unavailable witnesses, so long as
the trial chamber finds that the statement is reliable
and that either (1) the witness is unavailable due to
death or sufficiently severe bodily or mental condition
or (2) the witness can no longer be located with
reasonable diligence. (260) As an additional protection,
a factor weighing against the admission of written
evidence of an unavailable witness is that the evidence
pertains to the acts or conduct of the accused as
charged in the indictment. (261) In other words,
although Rules 92quater operates notwithstanding the
requirements of Rule 92bis, it imports that rule's
provision that written evidence going to peripheral
matters is more likely to be admissible than evidence
going directly to the guilt of the accused. (262)
It is too soon to assess definitively the impact
of these new rules. However, as their supporters have
predicted, (263) they are likely to speed up proceedings
to some extent. In addition, they may also improve the
quality of translations because translators working from
written texts will have more time to consider their
words and to check for errors.
VI. THE LEGAL
CONSEQUENCES OF TESTIMONY ALTERED BY INTERPRETATION
Two important legal consequences stem from the
alteration of testimony through interpretation. First,
such alteration harms the procedural rights of
defendants. (264) Second, it leads to skepticism as to
the correctness of judicial findings of fact. (265)
Alteration of testimony by interpretation
diminishes the defendant's guarantee of access to
interpretation services contained in ICCPR Article
14(3)(f). (266) In addition, the alteration of testimony
through interpretation can impair some of the other due
process rights. (267) Specifically, if a defendant
cannot fully and accurately understand the testimony of
witnesses, the utterances of opposing lawyers, and the
pronouncements of the judges, he may functionally have
been tried without being present. (268) Furthermore, if
a defendant cannot communicate with counsel or cannot
with full confidence examine witnesses, raise
objections, or petition the court for redress of
grievances, his right to effective counsel is infringed.
(269) Finally, interpretation harms the ability of
defendants to confront their accusers because witnesses'
credibility cannot be assessed as accurately as it could
be if all parties spoke the same language. (270)
Harm to defendants arising form altered
testimony may be mitigated by placing the obligation for
guaranteeing the quality of interpretation on the court
and by taking the various practical steps discussed
below in Part VII. (271) A more intractable problem
stems from the fact that international criminal
tribunals are presided over by panels of judges drawn
from different countries. (272) This diversity reflects
the multinational nature of the enterprise, emphasizes
that violations of human rights are a crime against all
of humanity, and protects against bias. (273) However,
it also has an important unintended consequence; because
the judges may listen to testimony (and the submissions
of counsel) in either of the working languages of the
court, they may hear different interpretations of the
same testimony. (274) In other words, the judges render
their decisions based on testimony that may differ
subtly or grossly in substance. In addition, judges
frequently disagree as to how much weight to give a
particular witness's testimony, and the different
translations of that testimony may exacerbate this
divergence.
This issue has been addressed in the
United States, but only in connection with juries. In
Hernandez v. New York, the U.S. Supreme Court upheld a
trial court's ruling that prosecutors may strike
potential jurors on the basis of their ability to speak
a language (other than English) in which testimony is to
be given (in that case, Spanish). (275) In reaching its
decision, the court accepted the state's argument that
ensuring that all jurors hear a single version of a
witness's testimony is a legitimate objective. (276)
It should be noted that the reasoning in
Hernandez is inapplicable to judges presiding over
international criminal courts in two respects. First,
the judges in international criminal trials deliberate
together extensively before rendering a unified
judgment. Any substantive differences in the judges'
impressions of important testimony should become
apparent during deliberations, which gives the judges an
opportunity to consult the corrected interpretation
transcript and resolve any discrepancies. (277) Of
course, juries also deliberate as a group, but it is
fair to assume that the deliberations of legal experts
are more likely to involve rigorous exploration of the
reasons underlying differences of opinion than the
deliberations of lay jury members. In addition, modern
trial chamber judges have access to the live computer
feed of the translated testimony. (278)
Second,
the situation of judges hearing differently-interpreted
testimony is unavoidable without remaking the structure
of international courts. Hernandez focused on whether
the ability to understand a second language that would
be used in testimony was a legitimate basis for
disqualifying a juror. (279) In international trials, at
least for the foreseeable future, there is no choice;
switching to a single working language for the court
would undo a carefully negotiated compromise. Moreover,
even if such a switch were possible, it would be a
politically impossible choice between disqualifying the
French-speaking or the English-speaking judges. While it
may be feasible to change to a single working language
in the future, for now it is not possible. The
international nature of the enterprise confers
significant symbolic and practical benefits. As long as
interpretations into the two working languages of the
international criminal courts are policed for accuracy
and consistency, the international community may have to
resign itself to the fact that instances of
inconsistency will arise.
VII. SOME STEPS THAT
CAN BE TAKEN
The capacity of interpretation to
alter testimony is not a purely technical problem to be
addressed by linguists and other experts in
interpretation. Rather, the inherent ability of
interpretation to alter the meaning of witness'
utterances, combined with the multitude of factors that
make errors in interpretation more likely, creates the
potential for infringement of the procedural rights of
defendants and verdicts based on faulty findings of
fact.
Only in the rare, extreme case of a
significant error relating to material testimony that
remains uncorrected would inaccurate interpretation
negate the due process rights retained by international
criminal defendants. Indeed, there is no evidence that
any conviction thus far handed down by international
criminal tribunals has actually turned on corrupted
testimony. Nevertheless, the danger is real. As the ICTY
Tribunal noted in the Mucic case, "The attorneys who
speak both English and Bosnian have noticed many errors
in the translation which change the meaning.... The
answer given on several occasions changed not only the
names of people and places but also the very substance
of what the witness was saying." (280)
As
described in Parts III and IV, supra, there are two
different ways in which interpretation can alter the
meaning of testimony. (281) First, there are alterations
that stem from the inherent indeterminacy of translated
language; these cannot be cured but can be taken into
account. Second, there are the inaccuracies that stem
from interpreter error, environmental factors, and the
like; these can be minimized and largely eliminated.
For both types of alterations, however, the
impetus for improvement must come from the court. The
interpreters who work at international criminal
tribunals are, for the most part, the elite of their
profession. They are trained in the art and science of
simultaneous interpretation and also in relevant
terminology and cultural issues. Lengthening their
training or increasing the number of interpreters in the
pool would reduce errors somewhat, but would bust the
already-strained budgets of the international criminal
tribunals. (282)
The onus for minimizing the
impact of interpretation on testimony must fall on the
judges rather than the parties. The judges at the
international criminal tribunals are not just neutral
umpires of the process, but also arbiters of the result.
They are charged with establishing their own rules of
procedure and ensuring that the proceedings are
conducted fairly. (283)
Furthermore, judges in
the international criminal tribunals take on the
inquisitorial role of judges in the civil law system.
They may question defendants directly, compel production
of evidence, and summon additional witnesses (including
experts) after the parties have concluded their cases.
(284) The judges of the trial chambers have in fact
exercised this power. (285) Thus, the judiciary has a
significant role in the production of evidence and the
creation of the record that is separate and apart from
the role of the parties. International criminal court
judges are intended to intervene "in the presentation of
evidence [in a manner] not governed by party interests
but considered truly independent, aimed solely at
seeking of the truth, 'inquisitorial' in this sense."
(286)
Currently, in the absence of any explicit
rule to the contrary, it falls on the parties to object
if they discover interpretation errors in the record.
(287) This practice amounts to making the adversarial
parties the guardians of due process. On the contrary,
the Preparatory Committee on the Establishment of the
ICC envisaged that the "President should play an active
role in guiding the trial proceedings by conducting the
debate and monitoring the manner in which evidence for
or against the accused was reported." (288)
For
the judges to play the role that the Preparatory
Committee intended for them will require a change in
attitude. Currently, the perspective of most judges at
the international criminal tribunals reflects the
attitude of many legal scholars--that interpretation is
a technical issue only. (289) Judge Mose of the ICTR is
a typical example; he acknowledges the problems posed by
translation but supposes them to be solvable with simple
"vigilance":
The testimony of Kinyarwandan-speaking witnesses presents
particular problems. Vigilance is of the essence when the
communication between the witness and those asking the questions
takes place through translation into two languages--Kinyarwanda to
French, and then French to English. Occasionally, there is a need
for repetition of the evidence in order to avoid mistakes. (290)
With
respect to the first, "incurable" type of alterations of
testimony, the most important thing is for judges always
to remain actively aware of the effects of
interpretation. Understanding the ways in which
interpretation can alter testimony will help to make
judges more sensitive to inconsistent testimony and more
likely to think twice in the face of vague or ambiguous
statements, rather than making a snap judgment.
With respect to the other extrinsic factors that
contribute to the alteration of testimony, judges,
witnesses, and attorneys can do a variety of things to
help the interpreters perform with a higher degree of
accuracy. For example, at the beginning of the Tadic
trial, the ICTY trial chamber warned the parties to
"speak slowly, because sometimes the interpreter needs
additional time." (291) Trial participants must also be
careful not to talk over each other. These are perhaps
obvious points, but their importance is impossible to
overstate. (292) Counsel and witnesses can help the
court (and themselves) by speaking slowly, using simple
sentences, and avoiding colloquialisms and expressions
that are culture-specific.
In addition, it is
human nature to revert to familiar patterns of speech as
lengthy proceedings continue, and judges must remain
vigilant throughout the trial, interrupting when
necessary to ensure that witnesses and advocates
continue to speak so as to make interpretation easier
and more accurate. Sometimes, specific problems must be
addressed; at the Tokyo trials, for example, the
Japanese military defendants shouted their testimony, as
they had been trained to shout when responding to
superiors' questions. (293)
Hans Fritzsche, one
of the defendants at the first Nuremberg trial who spoke
fluent English, wrote in his memoirs that the long,
complex sentences some of his co-defendants used hurt
their defenses because the interpreters could not
properly communicate their sentiment to the judges.
(294) Even pausing mid-sentence to assist the
interpreter did not actually help because the
interpreter could not communicate the sentence until he
or she heard the verb at the end of it. (295) Fritzsche
wrote, "Because of this weakness, essential parts of
various German arguments were lost in translation and
never came up for discussion at all." (296) Fritzsche
attempted to help out his fellow defendants by compiling
a list of "Suggestions for Speakers," but his list was
largely ignored. (297) He was particularly frustrated by
the garbled testimony of Fritz Sauckel: "more than half
of what [Sauckel] had to say in his own defense remained
untranslated. (298) It was, quite simply,
untranslatable." (299) Such problems will be reduced if
the judges remain alert throughout the trial, to inform
and remind trial participants of the need to speak and
act in ways that benefit the interpreters, and to step
in immediately when a witness, lawyer, or another judge
speaks too quickly or too colloquially.
In
addition, witnesses and counsel should speak directly to
each other, ignoring the interpreter intermediary. (300)
Judges should also be aware that it is more difficult to
interpret when a bilingual party speaks alternately in
different languages, as often occurs when a witness is
testifying primarily in his or her native language but
also speaks one of the court's working languages. Such
variation breaks the flow of the interpreter's thought
process and should be stopped immediately.
Judges should remember that interpreting is
tiring, that interpreters must rest between half-hour
shifts, and that interpreters should ideally work only
one or two shifts in the courtroom per day. (301) The
presiding judge must also be aware of the necessity of
swapping interpreters and orchestrate the proceedings so
that these switches occur smoothly.
Better
training--broadly defined--in the cultural and
linguistic particularities that will become relevant at
trial is necessary for all those involved in the trial,
not just for the interpreters. ICTY Prosecutor Del Ponte
writes:
Because Judges are not from the region and generally have no
knowledge of relevant factors such as geography, locations where
the crime took place, distances, language, cultural sensitivities
and relevant political or historical background, evidence that sets
the context within which the crimes were committed has to be
collected and prepared for presentation in court. Though such
challenges may occasionally arise when prosecuting at the national
level, it is an everyday reality when constructing a case before
the Tribunal, requiring extensive effort, resources and time. (302)
The
burden of educating the judges in this manner should not
fall entirely upon the prosecutors and defense counsel
(although good advocacy entails a certain amount of
instruction). Thus, at the outset of the Akayesu trial
at the ICTR (that tribunal's first prosecution for
genocide), the trial chamber called an expert witness on
linguistics to testify regarding Kinyarwanda slang
expressions for the word "rape." (303) That chamber
correctly recognized the need not only to understand the
denotative meanings of such Kinyarwanda slang terms for
rape as "inkotanyi," but also their origins and history.
(304) However, this excellent decision has not been made
standard practice at the ICTR or at any of the
international criminal tribunals. A related practice
established at the ICTR that has not, but should be,
made universal is English-language classes for the
detainees; these classes have taken place at the ICTR
since 1999. (305)
In addition, the international
criminal tribunals should establish written procedures
for dealing with disputes over interpretations. For
example, when a party disagrees with the interpreter's
chosen language, appeal could be made to the monitor.
Also, the rules of procedure relating to judges and
interpreters do not address interaction with the
interpreters, and there are currently no standing
international rules governing the conduct of defense
counsel. (306) Detailed guidelines for working through
interpreters should be drafted, codifying the steps that
the trial participants should take to contribute to the
accurate interpretation of testimony. Having written
procedures will help the judges to enforce
"interpretation discipline" throughout the trial.
Otherwise, even those judges with the best of intentions
will allow the trial participants to backslide as the
trial inevitably protracts.
Finally, when
assessing witnesses' testimony, judges must always
remember to monitor the witness's voice, not just the
interpreter's, and should observe the witness's tone and
body language. If judges are unsure of the meaning of
nonverbal signals they observe, they should not hesitate
to interrupt and ask the interpreter to characterize the
witness's testimony. Similarly, judges should be
sensitive to the fact that some witnesses may be even
more hesitant than they might otherwise be to speak of
personal problems when an interpreter of the same ethnic
group or cultural background is present, because such
admissions would "shame" their families. (307) In such
cases, judges should stop the proceedings to allow a
different interpreter to step in.
VIII.
CONCLUSION
International criminal law is
currently at a threshold. The ad hoc tribunals were
established as executive organs, charged with
prosecuting those responsible for perpetrating human
rights violations in specific times and places. (308)
Nevertheless, despite this relatively limited ambit,
they have "served as a training ground for the next
generation of leaders in the field of international
criminal law." (309)
The establishment of the ICC
takes international criminal law in a new direction, one
of permanence, regularity, and systematization. One of
the main difficulties facing the ICC is the procedural
order that it should apply; the Rome Statute and the ICC
Rules represent "many years of political and legal
struggle and contain[] a certainly impressive
compromise. However, the discussion about a correct
procedural order for this court ... is far from over."
(310) Following the example of the Nuremberg and Tokyo
IMTs, the international criminal tribunals have
continued to refine and improve their due process
protections long after their charters and rules of
procedure were first enacted. (311) As the ICC puts its
rules of procedure into practice and begins to hold
trials, it will be able to take advantage of experience
gained and lessons learned at the ad hoc tribunals.
However, in many ways--including linguistically--the ICC
presents new and greater challenges. The ad hoc
tribunals' jurisdiction is constrained to specific
conflicts, and therefore to specific language groups.
(312) Serbian and Croatian, for example, are virtually
the same language; they are only written using different
alphabets. In addition, unlike the ICTY and ICTR, the
ICC explicitly recognizes a right of victims to
participate in its proceedings. (313) Consequently, the
translation responsibilities of the ICC are greater and
more complex than the tribunals that came before it.
Those charged by international tribunals,
although not yet tried, are labeled war criminals. (314)
If convicted, they will not only lose their liberty for
the time of their sentence and possibly much of their
property, but they will also in theory be stigmatized to
an extent beyond all but the most shocking of domestic
crimes. (315) Thus, "given the severity of these
repercussions, the international criminal justice system
requires the highest standard of proof before an accused
can be convicted and imprisoned." (316)
Judge
Wald of the ICTY, a forceful supporter of the
international criminal tribunals, (317) admits that
international criminal law has experienced a "stormy
adolescence." (318) However, if the tribunals fail, this
"will seriously deflate any pretensions for the
practical significance of international criminal and
humanitarian law." (319) The best hope for making war
criminals accountable for the atrocities they perpetrate
is the establishment of a respected system of
prosecution that is free of procedural cavils.
Alteration of testimony by interpretation is currently a
neglected issue, and one with the potential to harm the
legitimacy of the international criminal tribunals.
However, the tribunals can take some low-cost and
easy-to-institute measures to reduce the likelihood that
a judgment will turn based on an inaccurate
interpretation. Improving the quality of simultaneous
interpretation of testimony will buttress the truth of
the international criminal tribunals' findings and the
fairness of their procedures.
(1.) FRANCESCA
GAIBA, THE ORIGINS OF SIMULTANEOUS INTERPRETATION: THE
NUREMBERG TRIAL 110 (1998).
(2.) Id. at 105-06.
(3.) Id.; see also OXFORD-DUDEN GERMAN/ENGLISH
DICTIONARY (Warner Scholze-Stubenrecht et al. eds., 3d
ed. 2005) (discussing the definition and translation of
"ja"); Steven Kaufmann, A Modal Analysis of Expressive
Meaning: German "Ja" under Quantifiers, Talk at the
Workshop on Implicature and Conversational Meaning (Aug.
20, 2004) (discussing the use of "ja").
(4.)
HILARY GASKIN, EYEWITNESSES AT NUREMBERG 47 (1990). This
Article is supported in large part by examples from the
Nuremberg trials. This is primarily because the trials
have been so well documented; dozens of people involved
with them wrote memoirs or contributed to collections of
reminiscences. In addition, because the Nuremberg trials
represented the first use of true simultaneous
translation (see infra Part III.B) and involved four
working languages, they were fertile ground for
interpretation problems and ingenious solutions to them.
In order to widen the range of examples and because
interpretation techniques have evolved since Nuremberg,
I will also draw from the experiences of the modern
tribunals.
(5.) Telephone Interview with
Fernando Smith, Court Interpreter Coordinator for N.Y.C.
(Dec. 1, 2004) [hereinafter Smith Interview].
(6.) Interview with Ricardo Barriga, former Fed.
Court Interpreter, current Owner/Manager of a private
New York interpretation services company, in New York,
N.Y. (Dec. 2, 2004) [hereinafter Barriga Interview].
(7.) Letter from Richard Alderman, Assoc.
Translator/Interpreter, Int'l Criminal Tribunal for
Rwanda (ICTR) to author (Feb. 23, 2005) (on file with
author) [hereinafter Alderman Letter].
(8.) This
assertion--that translation by even the most skilled
practitioner necessarily distorts the meaning of the
translated utterances--is universally accepted by
linguists. The only disagreements have to do with how
much and in what ways meaning is changed. See, e.g.,
THOMAS NASH, DISCOVERING LANGUAGE: A CONCISE
INTRODUCTION TO LINGUISTICS FOR CHINESE STUDENTS (1986).
"Utterance" is a linguistic term describing the most
basic unit of communication. Id. An utterance is a
communicative event, comprising words spoken,
intonation, stress patterns, facial expressions, and
gestures, locatable at a particular time, date, and
place. Id. at 100. An utterance is tangible and could be
an entire sentence, a part of a sentence, or a single
word or sound. Id.
(9.) Prosecutor v. Tadic,
Case No. IT-94-1-T, Transcript, at 47 (May 7, 1996),
available at http://www.un.org/icty/transe1/960507IT.htm
[hereinafter Tadic Transcript].
(10.) See, e.g.,
David Weissbrodt et al., Piercing the Confidentiality
Veil: Physician Testimony in International Criminal
Trials Against Perpetrators of Torture, 15 MINN. J.
INT'L L. 43 (2006) (failing to discuss interpretation).
(11.) See, e.g., Jennifer Schense, Necessary
Steps for the Creation of the International Court, 25
FORDHAM INT'L L.J. 717, 728-29 (2002) (providing a
purely technical analysis of interpretation services).
(12.) See Weissbrodt et al., supra note 10
(discussing physician testimony in international
criminal trials, but failing to address the issue of
translation). "Translation" and "interpretation" are
distinct concepts, although translation is the more
general term and includes interpretation. See discussion
infra Part III.A.
(13.) A fairly comprehensive
bibliography of the last ten years' worth of literature
in American legal journals touching on this topic
includes the following: Alice J. Baker, A Model Statute
to Provide Foreign-Language Interpreters in the Ohio
Courts, 30 U. TOL. L. REV. 593 (1999); Roxana Cardenas,
"You Don't Have to Hear, Just Interpret!": How
Ethnocentrism in the California Courts Impedes Equal
Access to the Courts for Spanish Speakers, 38 CT. REV.
24 (2001); Richard W. Cole & Laura Maslow-Armand,
The Role of Counsel and the Courts in Addressing Foreign
Language and Cultural Barriers at Different Stages of a
Criminal Proceeding, 19 W. NEW ENG. L. REV. 193, 195
(1997); Lynn W. Davis et al., The Changing Face of
Justice: A Survey of Recent Cases Involving Courtroom
Interpretation, 7 HARV. LATINO L. REV. 1 (2004); Eric
Eckes, The Incompetency of Courts and Legislatures:
Addressing Linguistically Deprived Deaf Defendants, 75
U. CIN. L. REV. 1649 (2007); Llewellyn Joseph Gibbons
& Charles M. Grabau, Protecting the Rights of
Linguistic Minorities: Challenges to Court
Interpretation, 30 NEW ENG. L. REV. 227 (1996); Patricia
Walther Griffin, Beyond State v. Diaz: How to Interpret
"Access to Justice" for Non-English Speaking
Defendants?, 5 DEE. L. REV. 131 (2002); Virginia E.
Hench, What Kind of Hearing? Some Thoughts on Due
Process for the Non-English-Speaking Criminal Defendant,
24 T. MARSHALL L. REV. 251 (1999); Angela McCaffrey,
Don't Get Lost in Translation: Teaching Law Students to
Work With Language Interpreters, 6 CLINICAL L. REV. 347
(2000); Heather Pantoga, Injustice in any Language: The
Need for Improved Standards Governing Courtroom
Interpretation in Wisconsin, 82 MARQ. L. REV. 601
(1999); Cristina M. Rodriguez, Accommodating Linguistic
Difference: Toward a Comprehensive Theory of Language
Rights in the United States, 36 HARV. C.R.-C.L.L. REV.
133 (2001); Franklyn P. Salimbene, Court Interpreters:
Standards of Practice and Standards for Training, 6
CORNELL J.L. & PUB. POL'Y 645 (1997); David S. Udell
& Rebecca Diller, Access to the Courts: An Essay for
the Georgetown University Law Center Conference on the
Independence of the Courts, 95 GEO L.J. 1127, 1141-42
(2007); Deborah M. Weissman, Between Principles and
Practice: The Need for Certified Court Interpreters in
North Carolina, 78 N.C.L. REV. 1899 (2000).
(14.) See, e.g., Schense, supra note 11
(providing a purely technical analysis of interpretation
services).
(15.) Geoffrey Nice & Philippe
Vallieres-Roland, Procedural Innovations in War Crimes
Trials, 3 J. INT'L CRIM. JUST. 354 (2005). Of note is
the fact that the authors both served on the Milosevic
Prosecution Team, of which Mr. Nice was the leader. Id.
(16.) The proofing summaries represented an
attempt to "warm-up" the tribunal to the idea of the
prosecution presenting a greater portion of its
evidence-in-chief in writing. These summaries were
prepared as precis of witnesses' oral testimony and
presented to the judges and defense counsel with the
hope that, "over time, rather than having the witness
more or less repeating orally what was contained in the
'proofing summary,' the 'proofing summary' would be
signed by the witness and that this would constitute his
evidence." Id. at 369.
(17.) Id.
(18.)
Some judges have even actively discounted the issue of
interpretation accuracy. See, e.g., Cardenas, supra note
13.
(19.) JO-ANNE WEMMERS, REPARATION AND THE
INTERNATIONAL CRIMINAL COURT: MEETING THE NEEDS OF
VICTIMS 15 (2006).
(20.) Although supported in
general by the international community, the
International Military Tribunals in Nuremberg and Tokyo,
convened after World War II, were not truly
international ventures; rather, they were multinational
military tribunals established in the tradition of
victors in war prosecuting the losers. The approbation
of the then-nascent United Nations does not change this
fact. CHRISTOPH J. M. SAFFERLING, TOWARDS AN
INTERNATIONAL CRIMINAL PROCEDURE 34 (2001).
Consequently, international criminal tribunals truly
came into being with the decision by the U.N. Security
Council to establish the ICTY; the ICTY has been
followed by the ICTR and the International Criminal
Court (ICC). These bodies were joined in 2001 by a third
ad hoc tribunal with distinct characteristics. The
Special Court for Sierra Leone (SCSL), a "hybrid" or
"mixed" tribunal with both domestic and international
processes, was created by agreement of the U.N. Security
Council and the government of Sierra Leone to prosecute
those responsible for war crimes committed during that
country's recent civil war. S.C. Res. 1315, U.N. Doc.
S/RES/1315 (Aug. 4, 2000). The hybrid tribunal model
proved influential, and more recent tribunals
established in East Timor and Cambodia have been
organized in a similar way. ANTONIO CASSESE,
INTERNATIONAL CRIMINAL LAW 343 (2003). The distinctive
processes of hybrid tribunals are outside the scope of
this article. See Laura R. Hall & Nahal Kazemi,
Prospects for Justice and Reconciliation in Sierra
Leone, 44 HARV. INT'L L.J. 287 (2003) (providing a good
primer, looking specifically at the case of the Special
Court for Sierra Leone). I will refer collectively to
these bodies--the ICC, the ICTR and ICTY, and the hybrid
tribunals--as the "international criminal tribunals."
(21.) LYAL S. SUNGA, THE EMERGING SYSTEM OF
INTERNATIONAL CRIMINAL LAW: DEVELOPMENTS IN CODIFICATION
AND IMPLEMENTATION 278 (1997).
(22.) See Douglas
Donoho, Human Rights Enforcement in the Twenty-First
Century, 35 GA. J. INT'L & COMP. L. 1 (2006)
(discussing the role of national governments with
respect to the enforcement of decisions by international
institutions). An often-cited example of this purported
nationalization of international criminal law is the
Pinochet case. See Frank Sullivan, Jr., A Separation of
Powers Perspective on Pinochet, 14 IND. INT'L &
COMP. L. REV. 409, 415-37 (2004) (including a detailed
description of the legal proceedings in the United
Kingdom). An important factor to which this trend may be
traced is concern about the assertion of universal
jurisdiction by some national courts over crimes against
humanity. See, e.g., K. Lee Boyd, Universal Jurisdiction
and Structural Reasonableness, 40 TEX. INT'L L.J. 1, 1-2
(2004) (arguing that traditional judicial constraints
should alleviate concerns); Madeline H. Morris,
Universal Jurisdiction in a Divided World: Conference
Remarks. 35 NEW ENG. L. REV. 337, 340, 352-59 (2001).
(23.) Aaron Fichtelberg, Democratic Legitimacy
and the International Criminal Court, 4 J. INT'L CRIM.
JUST. 765, 768 (2006).
(24.) Dusan Tadic, the
defendant at the first ICTY trial, is acknowledged to
have been a relatively minor perpetrator of atrocities
in Yugoslavia. See Michael P. Scharf, Prosecutor v.
Dusko Tadic: An Appraisal of the First International War
Crimes Trial Since Nuremberg, 60 ALB. L. REV. 861, 875
(1996). The decision was made to prosecute him first
largely because his was an easy conviction to secure.
SAFFERLING, supra note 20, at 316-17; Scharf, supra. For
a concise profile of the types of defendants prosecuted,
see Theodor Meron, Reflections on the Prosecution of War
Crimes by International Tribunals, 100 AM. J. INT'L L.
551, 561-64 (2006).
(25.) According to an ICC
press release, a pre-trial chamber of the ICC confirmed
the three charges brought by the ICC prosecutor against
Thomas Lubanga Dyilo and referred those charges for
trial before an ICC trial chamber. Press Release, Int'l
Criminal Court, Pre-Trial Chamber I Commits Thomas
Lubanga Dyilo for Trial (Jan. 29, 2007), available at
http://www.icc-cpi.int/press/pressreleases/220.html.
Dyilo's trial is the ICC's first. Id.
(26.)
Throughout this Article, I will use "altered" or
"alteration" to describe testimony that has had its
meaning changed in some way because it has been
interpreted into another language. The use of
"alteration" to describe the effect of interpretation on
testimony is intended to be free of any value judgment.
As will be discussed further below, my emphasis on the
negative consequences of testimony altered by
interpretation is not intended to imply that the
practice of interpretation is in any inherent way
illegitimate. Indeed, international criminal trials
would be impossible without it. See Gaiba, supra note 1,
at 11 (noting that the Nuremberg trials "would have
taken four times as long" without simultaneous
interpretation).
(27.) In increasingly
multicultural Western societies, this problem of the
necessity for interpretation is also growing in domestic
proceedings. In Britain, for example, the court system's
translation budget tripled in the first half of this
decade. Tongue-Tied Newcomers, ECONOMIST, Feb. 17, 2007,
at 37.
(28.) See Christin B. Coan, Comment,
Rethinking the Spoils of War: Prosecuting Rape as a War
Crime in the International Criminal Tribunal for the
Former Yugoslavia, 26 N.C.J. INT'L L. & COM. REG.
183 (2000). Coan addresses the impact of interpretation
on the forcefulness of rape victims' testimony. She
concludes that,
[I]nterruptions and errors focus attention on the linguistic mode
of production rather than on the testimony itself. Undoubtedly,
interpretation and translation problems have at times interfered
with the overall impact of rape victim testimony and the
presentation of evidence of rape. However, no feasible alternatives
exist.
Id. at 233.
(29.)
Alderman Letter, supra note 7.
(30.) SAFFERLING,
supra note 20, at 48.
(31.) Luka Misetic,
Sacrificing the Rights of the Accused for the "Success"
of International Criminal Justice, in THE POSITION OF
THE DEFENCE AT THE INTERNATIONAL CRIMINAL COURT AND THE
ROLE OF THE NETHERLANDS AS HOST STATE 49 (Martine
Hallerset al. eds., 2000).
(32.) Christine
Chinkin, Comment, Due Process and Witness Anonymity, 91
AM. J. INT'L L. 75, 75 (1997).
(33.) The
Secretary-General, Report of the UN Secretary-General
Pursuant to Para. 2 of Security Council Resolution 808,
[paragraph] [paragraph] 101, 106, delivered to the
Security Council, UN Doc. S/25704 (May 3, 1993); see
also Stuart Beresford, Redressing the Wrongs of the
International Justice System: Compensation for Persons
Erroneously Detained, Prosecuted, or Convicted by the Ad
Hoc Tribunals, 96 AM. J. INT'L L. 628, 629-32 (2002)
(discussing the rights of the accused).
(34.)
SAFFERLING, supra note 20, at 31.
(35.)
Universal Declaration of Human Rights, G.A. Res. 217A,
at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc.
A/810 (Dec. 12, 1948), available at
https://www1.umn.edu/humanrts/instree/b1udhr.htm. In
particular, art. 11(1) of the UDHR provides that
"[e]veryone charged with a penal offence has the right
to be presumed innocent until proved guilty according to
law in a public trial at which he has had all the
guarantees necessary for his defense." Id. art. 11,
[paragraph] 1.
(36.) International Covenant on
Civil and Political Rights art. 14, Dec. 16, 1966, 999
U.N.T.S. 171, available at
http://www1.umn.edu/humanrts/instree/
b3ccpr.htm[hereinafter ICCPR].
(37.) Convention
Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment art. 7, [paragraph] 3, Dec. 10,
1984, 1465 U.N.T.S. 85, available at
http://www1.umn.edu/humanrts/instree/h2catoc.htm.
(38.) Convention on the Rights of the Child art.
40(b), Nov. 20, 1989, 1577 U.N.T.S. 3, available at
http://wwwl.umn.edu/humanrts/instree/k2crc.htm.
(39.) Even Cassese, one of the UDHR's most avid
proponents, admits that it does not necessarily
constitute universal, binding legal norms. ANTONIO
CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 48 (1990).
(40.) Rome Statute of the International Criminal
Court art. 67, [paragraph] 1, U.N. Doc A/CONF. 183/9
(July 17, 1998), available at
http://untreaty.un.org/cod/icc/statute/romefra.htm
[hereinafter ICC Statute]; Statute of the International
Criminal Tribunal for Rwanda, art. 20, [paragraph] 4,
U.N. Doc. S/RES/995 (Nov. 8, 1994), available at
http://www.ictr.org/ENGLISH/basicdocs/statute.html
[hereinafter ICTR Statute]; Statute of the International
Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia,
art. 2(f), U.N. Doc. S/RES/827 (May 25, 1993), available
at http://www.un.org/icty/legaldoc/statuteindex.htm
[hereinafter ICTY Statute].
The Nuremberg and
Tokyo International Military Tribunals (IMTs), as noted
above, were not truly international and did not respect
all of the rights guaranteed by the later tribunals. For
example, Article 12 of the London Charter, which
empowered the Nuremberg IMT, permitted trials in
absentia, a practice more recently condemned as negating
the right of the accused to prepare a defense and to be
heard completely. SUNGA, supra note 21, at 312.
Nevertheless, Article 16 of' the London Charter
guaranteed to the defendants various procedural rights,
see SAFFERLING, supra note 20, at 22, and criticisms
like the above notwithstanding, the trials (at least
those held at Nuremberg) were, and still are, generally
regarded as having been procedurally fair. See, e.g.,
BENJAMIN B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT: A
STEP TOWARD WORLD PEACE--A DOCUMENTARY HISTORY AND
ANALYSIS (1980); Max Radin, International Crimes, 32
IOWA L. REV. 33, 44 (1946) ("The Court at Nuremberg
established a procedure which.., closely follows what in
the United States is regarded as the basic pattern of a
just procedure.").
(41.) While this Article
focuses on interpretation during trials, it should be
noted that many of the rights associated with due
process come into play before the trial begins, and
therefore, translation may affect those rights other
than just during the trial. On the pre-trial rights of
international criminal defendants generally, see Sherrie
L. Russell-Brown, Poisoned Chalice?: The Rights of
Criminal Defendants Under International Law, During the
Pre-Trial Phase, 8 UCLA J. INT'L L. & FOREIGN AFF.
127 (2003). Russell-Brown identifies four key due
process rights that are of issue during the pre-trial
phase of a prosecution:
1) the right to be free from arbitrary arrest and detention,
including the right to be informed of the reasons for arrest at the
time of arrest and the right to be "promptly" charged; 2) the right
to a fair trial, including the right to be informed of the charges;
3) the right to a speedy trial, including the right to be brought
promptly before a judge; and lastly 4) the right to assistance of
counsel.
Id. at 127. All of these may
be affected to some degree by the lack of an interpreter
or by inaccurate interpretation.
(42.) The
various ad hoc tribunals have addressed the parameters
of the right to counsel on several occasions; their
holdings are largely congruent (to the point that it can
be said that a body of case law has been developed).
Nevertheless, there are inconsistencies. See Kate Kerr,
Note, Fair Trials at International Criminal Tribunals.
Examining the Parameters of the Right to Counsel, 36
GEO. J. INT'L, L. 1227 (2005).
(43.) Some
commentators argue that the due process rights contained
in Article 14 have attained binding authority as
international customary law due to their influence on
subsequent documents and near-universal acceptance. See,
e.g., SAFFERLING, supra note 20, at 25 (citing HUMAN
RIGHTS IN INTERNATIONAL LAW, LEGAL AND POLICY ISSUES
96-97 (Theodor Meron ed., 1984)). Another example is the
report of the 1994 UN Sub-Commission on the Prevention
of Discrimination and the Protection of Minorities,
which cited Article 14 as the basis for a
well-established rubric of fair trial rights. U.N. Econ.
& Soc. Council, Sub-Comm. on Prevention of
Discrimination & Prot. of Minorities, The Right to a
Fair Trial: Current Recognition and Measures Necessary
for its Strengthening, UN Doc. E/CN.4/Sub.2/1994/24
(June 3, 1994).
(44.) See, e.g., ICC Statute,
supra note 40, arts. 55, 66-67.
(45.) Using what
he described as an "inductive" approach, Bassiouni
enumerated a very similar list of basic procedural
rights that he suggests are indisputably afforded under
international criminal process because they are common
to all legal systems. M. Cherif Bassiouni, Human Rights
in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent
Protections in National Constitutions, 3 DUKE J. COMP.
& INT'L L. 235, 295, Appendix II (1993).
(46.) ICCPR, supra note 36, art. 14.
(47.) Id. art. 14, [paragraph] 3.
(48.)
Id.
(49.) See, e.g., T. Caroline Briggs-Sykes,
Lost in Translation: The Need for a Formal Court
Interpreter Program in Alaska, 22 ALASKA L. REV. 113
(2005) ("In Alaska, neither the legislature nor the
court system has identified a right to an interpreter
during a criminal trial.").
(50.) See ICCPR,
supra note 36, art. 14, [paragraph] 3(f).
(51.)
For example, various state and federal courts in the
United States have held that an inability to understand
the proceedings makes the defendant functionally absent
from the trial, including preliminary hearings,
pleadings, the full trial, and sentencing. See, e.g.,
State v. Natividad, 526 P.2d 730 (Ariz. 1974); People v.
Luu, 813 P.2d 826 (Colo. Ct. App. 1991), aff'd, 841 P.2d
271 (Colo. 1992).
(52.) U.S. courts have held
that to provide effective assistance, an attorney must
be able to communicate with her client before and during
the trial. For the constitutional underpinnings of the
right to effective counsel, see Wainwright v. Sykes, 433
U.S. 72 (1977); Gideon v. Wainwright, 372 U.S. 335
(1963). For judgments holding that the right to
effective counsel requires access to an interpreter,
see, e.g., United States v. Quesada Mosquera, 816 F.
Supp. 168, 174-75 (E.D.N.Y. 1993); Giraldo-Rincon v.
Dugger, 707 F. Supp. 504, 508 (M.D. Fla. 1989); Peeler
v. State, 750 S.W.2d 687, 691 (Mo. Ct. App. 1988); State
v. Kounelis, 609 A.2d 1310, 1313 (N.J. Super. Ct. App.
Div. 1992).
(53.) The Sixth Amendment to the
Constitution guarantees the right to confront accusers,
a right that binds states as well. Pointer v. Texas, 380
U.S. 400, 400-01 (1965). Although the Supreme Court has
not addressed this issue, various courts have held that
the right to confrontation is meaningless if the
defendant cannot understand the witnesses' testimony.
See, e.g., United States v. Mayans, 17 F.3d 1174 (9th
Cir. 1994); Giraldo-Rincon v. Dugger, 707 F. Supp. 504
(M.D. Fla. 1989); United States ex rel. Negron v. New
York, 310 F. Supp. 1304 (E.D.N.Y.), aff'd, 434 F.2d 386
(2d Cir. 1970); Terry v. State, 105 So. 2d 386, 387
(Ala. Crim. App. 1925).
(54.) See United States
v. Carrion, 488 F.2d 12, 13 (1st Cir. 1973); United
States v. Desist, 384 F.2d 889, 902 (2d Cir. 1967),
aff'd, 394 U.S. 244 (1968); People v. Mata Aguilar, 677
P.2d 1198, 1199 (Cal. 1998); Mariscal v. State, 687
N.E.2d 378, 382 (Ind. Ct. App. 1997); People v.
Rodriguez, 546 N.Y.S.2d 769, 771 (N.Y. Sup. Ct. 1989).
(55.) 205 U.S. 86 (1907).
(56.) Cole
& Maslow-Armand, supra note 13, at 196-97; Pantoga,
supra note 13, at 612.
(57.) ICCPR, supra note
36, art. 14, [paragraph] 3(f).
(58.) Charter of
the International Military Tribunal, annexed to
Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, art. 16(c),
Aug. 8, 1945, 59 Star. 1544, 82 U.N.T.S. 279.
(59.) Charter of the International Military
Tribunal for the Far East, art. 9(b), Jan. 19, 1946,
T.I.A.S. No. 1989, 4 Bevans 20.
(60.) For nearly
all of the participants in an international criminal
proceeding, the law, process, and physical context of
the trial are alien. Consequently, some have argued
that, even if all the words spoken in a trial are
correctly translated, the cultural gap between the trial
chamber officials and the counsel on one side, and the
participants on the other, makes it impossible for the
participants to participate fully in the trial. See,
e.g., Jessica Almqvist, The Impact of Cultural Diversity
on International Criminal Proceedings, 4 J. INT'L CRIM.
JUST. 745, 748-49 (2006).
(61.) SAFFERLING,
supra note 20, at 2.
(62.) U.N. Human Rights
Comm., General Comment 13, Article 14 (Twenty-first
Session, 1984), Compilation of General Comments and
General Recommendations, [paragraph] 5, U.N. Doc.
HRI/GEN/1/Rev.1 (1994).
(63.) Int'l Tribunal for
the Prosecution of Persons Responsible for Serious
Violations of Int'l Humanitarian Law Committed in the
Territory of the Former Yugo. since 1991 [ICTY], Rules
of Procedure and Evidence, U.N. Doc. IT/32/Rev. 39 (Feb.
11, 1994) (as amended, Sept. 22, 2006), available at
http://www.un.org/icty/legaldoce/basic/rpe/IT032Rev39e.pdf
[hereinafter ICTY Rules]; Int'l Tribunal for the
Prosecution of Persons Responsible for Genocide and
Other Serious Violations of Int'l Humanitarian Law
Committed in the Territory of Rwanda [ICTR], Rules of
Procedure and Evidence, U.N. Doc. ITR/3/Rev.1 (June 29,
1995) (as amended, Nov. 10, 2006) available at
http://69.94.11.53/ENGLISH/rules1101106/rop101106.pdf
[hereinafter ICTR Rules].
(64.) See ICTY Rules,
supra note 63, R. 3(B) ("An accused shall have the right
to use his or her own language."); ICTR Rules, supra
note 63, R. 3(B) ("An accused shall have the right to
use his own language.").
(65.) ICTY Rules, supra
note 63, R. 3(C); ICTR Rules, supra note 63, R. 3(C).
(66.) ICTY Rules, supra note 63, R. 3(D); ICTR
Rules, supra note 63, R. 3(D).
(67.) Although
the extent of the translation work that would have to be
done was not fully appreciated until after the ICTY
began work, the need for an extensive interpretation and
translation system was acknowledged by the time of the
first annual report of the ICTY. ICTY, First Annual
Report to the General Assembly and the Security Council,
[paragraph] 30, U.N. Doc. A/49/342, S/1994/1007 (Aug.
39, 1994). The ICTY's Conferences and Language Services
Section also sends interpreters into the field to work
with investigators, and oversees the French- and
English-language court reporters who prepare the court
transcripts. Almqvist, supra note 60, at 755 n.34.
"Until 1996, the language services provided by the ICTR
had consisted mainly of support to the Office of the
Prosecutor." Id. at 753 n.29. When the ICTR began
holding trials, however, a Language and Conference
Services Section was established along the lines of the
ICTY's (I cannot account for the slight difference in
the names of the two language sections). Id. at 752 53
& n.29; ICTR, Second Annual Report to the General
Assembly and the Security Council, [paragraph] 73, U.N.
Doc. A/52/582, S/1997/868 (Nov. 13, 1997). In addition,
"as part of the inter-Tribunal cooperation project, the
ICTR receives terminology support from the ICTY in the
form of databases and glossaries." Id. at 753 n.27;
ICTR, Tenth Annual Report to the General Assembly and
the Security Council, [paragraph] 338, U.N. Doc.
A/58/297, S/2003/829 (Aug. 20, 2003).
(68.) All
documentation produced to or by the Office of the
Prosecutor at each of the two Tribunals, regardless of
its relevance, must be translated so as to make evidence
available in languages that the accused, the
prosecutors, and defense counsel understand. ICTY Rules,
supra note 63, R. 3(E); ICTR Rules, supra note 63, R.
3(E). The volumes involved are substantial. For example,
in 2003, the ICTY Office of the Prosecutor printed an
average of 50,000 pages per week for disclosure. See
Almqvist, supra note 60, at 753 n.27. Since then, a
General Service Unit of the office roughly translates
prosecution materials at a preliminary stage in order to
determine whether they are likely to be produced. Id. If
so, the documents are re-translated for use in the
proceedings. Id. "The second translation is provided by
certified translators of the Conference and Language
Services Section (ICTY Report of the Board of Auditors
to the General Assembly of the United Nations, UN doc.
A/59/5/Add.12, 10 August 2004, [section][section]
49-51)." Id.
(69.) See Almqvist, supra note 60,
at 755 (noting that, while the collected experience of
the ICTY and ICTR will be useful for the ICC's
development of its own language services, the ICC still
faces huge translation obstacles).
(70.) See id.
at 764 ("The Tribunals themselves have sought to redress
some of the most urgent culture-specific concerns
stemming from a lack of common language and are engaged
in extensive translations and interpretations.").
(71.) Meron, supra note 24, at 569. "Victors'
justice" was not just leveled as a criticism of the
tribunals; indeed, the Soviet authorities who
participated in the Nuremberg trials were particularly
enthusiastic proponents of it. Telford Taylor, who was
the chief American prosecutor at Nuremberg after the
first trial, described one occasion in which court
officials were socializing together and the Soviet
prosecutor offered a toast to the defendants: "May their
paths lead straight from the courthouse to the grave!"
Some of the judges had already downed their Cointreau by
the time they heard the translation. TELFORD TAYLOR, THE
ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 211
(1992).
(72.) Meron, supra note 24, at 569.
Meron recounts, in particular, that the Nuremberg and
Tokyo tribunals permitted trials to be conducted in
absentia and contained no protection against double
jeopardy. However, as Meron concedes, the military
tribunals' record on due process was, on the whole,
quite good: "[F]airness norms inevitably crept into the
proceedings, in spite of the conciseness of the
Tribunal's charter." Id. at 570.
(73.) Jonathan
A. Bush, Lex Americana: Constitutional Due Process and
the Nuremberg Defendants, 45 ST. LOUIS. U. L.J. 515
(2001). Bush cites, for example, the rights of the
Nuremberg defendants to have counsel present at
interrogations of prospective prosecution witnesses who
were being detained by the Allies (as possible
defendants in later trials or as protected informants);
to address the court at the close of proceedings,
freely, not under oath, and not subject to
cross-examination; to have counsel of their choice paid
for by the tribunal; and to examine documentary evidence
held by the prosecution to an extent that would not be
permitted in the United States for decades afterward
(this was permitted starting only midway through the
trial program). Id. at 525-27.
(74.) See id. at
536 (noting that proponents of ad hoc international
criminal tribunals have argued that Nuremberg proved
"that international trials are effective and can be
conducted with basic fairness").
(75.) CASSESE,
supra note 20, at 341. Cassese writes that the political
will necessary to establish the ICC would never have
come about without the prior example of two functioning
ad hoc tribunals. Id. Indeed, although the nature of the
ICC's jurisdiction is fundamentally and necessarily
different from that of the ad hoc tribunals, it was
clearly modeled upon them. Donoho, supra note 22, at 42.
(76.) See infra Part VII.
(77.) See,
e.g., TRANSLATION: APPLICATIONS AND RESEARCH 1 (R.W.
Brislin ed., 1976).
(78.) Id.
(79.)
ELENA M. DEJONGH, AN INTRODUCTION TO COURT INTERPRETING:
THEORY AND PRACTICE 35 (1992); see also GAIBA, supra
note 1, at 16.
(80.) Pantoga, supra note 13, at
633.
(81.) See discussion infra Part III.A-D.
(82.) Two other types of interpretation exist
but are rarely seen in the courtroom. Sight
interpretation involves the spontaneous oral rendering
into the target language of written materials in the
source language. It seldom has a place in the courtroom:
for accuracy, documents are translated in advance and
introduced into evidence in translated form. Summary
interpretation occurs when an interpreter condenses and
summarizes the speaker's utterances. It is not, and
generally should not be, used in legal settings, where
it is vital that the fact finder knows as precisely as
possible what a witness said. See DEJONGH, supra note
79, at 49.
(83.) Pantoga, supra note 13, at 643.
(84.) Id. at 646.
(85.) See id. at
643-45.
(86.) Id. at 649.
(87.) GAIBA.
supra note 1, at 16.
(88.) Alderman Letter,
supra note 7.
(89.) Dana Schmidt, Pick Your
Language, N.Y. TIMES MAG., Aug. 25, 1946, at 24, quoted
in GAIBA, supra note 1, at 29.
(90.) Although
the general perception of international criminal trials
is that they are unusually long and slow, they do not
necessarily last longer than complex or politically
sensitive domestic trials, particularly those domestic
trials that are subject to similar media scrutiny. As
ICTY Prosecutor Carla Del Ponte notes, the 1992 federal
trial of the Los Angeles police officers accused of
beating Rodney King took two and a half months for
conduct that lasted less than two minutes and was
captured on videotape. The Milosevic prosecution, on the
other hand, "involved years of conduct over extensive
territory, involving a number of organs, including a
multitude of military and quasi-military organizations
and the alleged commission of hundreds of incidents of
serious crimes." Carla Del Ponte, Investigation and
Prosecution of Large-Scale Crimes at the International
Level, 4 J. INT'L CRIM. JUST. 539, 542 n.6 (2006).
(91.) For practical reasons and in order to
safeguard the right of defendants to a speedy trial,
reducing delays in trials remains a preoccupation of the
international criminal tribunals. See, e.g.. Marlise
Simons, Court Looks for Ways to Speed Milosevic Trial,
N.Y. TIMES, July 28, 2004. at A1.
(92.) GAIBA,
supra note 1, at 27.
(93.) Id.
(94.) Id.
(95.) The early consecutive interpreters would
take notes as a participant was making his speech, then
deliver the entire speech in the target language. They
were a highly-educated, elite group, and often had egos
to match. An often-repeated story about one of the
consecutive interpreters at the League of Nations,
George Kaminker, illustrates how this first generation
of interpreters saw themselves: When a delegate
whispered to him after an especially inspired
interpretation of the delegate's speech, "That is not
what I said," Kaminker retorted, "I know, but that is
what you meant to say, isn't it?" Hannah Schiller
Wartenberg, Simultaneous Interpreters: A Good Profession
for Women?, in UNUSUAL OCCUPATIONS AND UNUSUALLY
ORGANIZED OCCUPATIONS 151, n.7 (Helena Z. Lopata &
Kevin D. Henson eds., 2000).
(96.) GAIBA, supra
note 1. at 30.
(97.) GASKIN, supra note 4, at
43.
(98.) GAIBA, supra note 1, at 34-35.
(99.) GASKIN, supra note 4, at 44; see GAIBA,
supra note 1, at 35.
(100.) The Tokyo military
tribunal did not even try to employ simultaneous
translation, citing the difficulty of translating into
and out of Japanese. See Allison Marston Danner, Beyond
the Geneva Conventions: Lessons from the Tokyo Tribunal
in Prosecuting War and Terrorism, 46 VA. J. INT'L L. 83,
90-91 (2005).
(101.) GAIBA, supra note 1, at 34
(quoting the Seventeenth Organization Meeting of the
International Military Tribunal, Oct. 29, 1945, convened
for the purpose of developing criminal procedures).
(102.) GASKIN, supra note 4, at 35.
(103.) Wartenberg, supra note 95, at 155.
(104.) In fact, the Nuremberg trials are
credited with first awakening the American legal
community to the need for defendants to have legal
proceedings interpreted into their native languages.
DEJONGH, supra note 79, at 2.
(105.) See
Griffin, supra note 13, at 135.
(106.) Grabau
& Gibbons, supra note 13, at 258.
(107.)
GASKIN, supra note 4, at 39. Hannah Schiller Wartenberg,
who worked as an interpreter at Nuremberg from 1946 to
1947, recalls that no particular qualification other
than bilingual fluency was required. Translators who
wanted to work as interpreters were given an oral
examination and, if it seemed that they could handle the
task of simultaneous interpretation, they were hired.
Wartenberg, supra note 95, at 153.
(108.)
ROSEANNE DUENAS GONZALEZ ET AL., FUNDAMENTALS OF COURT
INTERPRETATION: THEORY, POLICY, AND PRACTICE 350 (1991).
Certification at the federal court level is available
only for Spanish, Haitian Creole, and Navajo. U.S.
Courts, Three Categories of Interpreters,
http://www.uscourts.gov/interpretprog/ categories.html
(last visited Nov. 26, 2007). The requirements for
serving as an interpreter in other languages vary by
court.
(109.) See, e.g., U.S. Dept. of State,
Employment Opportunities with the United Nations and
Other International Organizations,
http://www.state.gov/p/io/empl/l1076.htm (last visited
Nov. 30, 2007) ("The UN agencies recruit for [translator
and interpreter] positions by competitive
examination.").
(110.) Wartenberg, supra note
95, at 161. There are currently only two such schools in
the United States, one at Georgetown University in
Washington, D.C. and the other at the Monterey Institute
for International Studies in Monterey, California.
(111.) Pantoga, supra note 13, at 644.
(112.) Id.
(113.) GONZALEZ, supra note
108, at 19.
(114.) GASKIN, supra note 4, at 48.
(115.) Id.
(116.) Marina Hsieh,
"Language-Qualifying" Juries to Exclude Bilingual
Speakers, 66 BROOK. L. REV. 1181, 1185 (2001).
(117.) Gibbons & Grabau, supra note 13, at
293.
(118.) GASKIN, supra note 4. at 44.
(119.) Id.
(120.) Alderman Letter, supra
note 7.
(121.) Gibbons & Grabau, supra note
13, at 40.
(122.) Id.
(123.) Barriga
Interview, supra note 6.
(124.) Id.
(125.) Id.
(126.) Id.
(127.) Id.
(128.) In general, the success of the
interpretation depends greatly on sound quality. Bad
acoustics in the room, ambient noise and conversation,
technical glitches, and static can contribute to
inaccuracies in interpretation. DEJONGH, supra note 79,
at 29. One might think that such technical problems have
been largely resolved, but at the ICTY, problems still
regularly arise with the headphones. For many
participants, high-pitched feedback and the need to surf
back and forth over the different audio channels has
"proved a distraction and an irritant." Edwin Villmoare,
Ethnic Crimes and UN Justice in Kosovo: The Trial of
Igor Simic, 37 TEX. INT'L L.J. 373, 378 (2002).
(129.) Alderman Letter, supra note 7.
(130.) See GAIBA, supra note 1, at 95 ("[A]
system of recording was developed to which courtroom
people could resort in cases of misunderstanding or
disagreement about the translations.").
(131.)
Id.
(132.) Id.
(133.) Jeffrey L. Spears,
Sitting in the Dock of the Day: Applying Lessons Learned
from the Prosecution of War Criminals and Other Bad
Actors in Post-Conflict Iraq and Beyond, 176 MIL. L.
REV. 96, 126 (2003). This review of the transcript may,
however, have little influence on the judges. They may
have already made up their minds regarding the
credibility of a witness during the giving of testimony,
and reading a corrected transcript may do little to
change this. GAIBA, supra note 1, at 95.
(134.)
Coan, supra note 28, at 230; Richard May & Marieke
Wierda, Trends in International Criminal Evidence:
Nuremberg, Tokyo, The Hague, and Arusha, 37 COLUM. J.
TRANSNAT'L L. 725, 734 (1999).
(135.) Alderman
Letter, supra note 7.
(136.) Id.
(137.)
Coan, supra note 28, at 232.
(138.) GONZALEZ,
supra note 108, at 16-17; Ileana Dominguez-Urban, The
Messenger as the Medium of Communication: The Use of
Interpreters in Mediation, 1997 J. DISP. RESOL. 1, 14
(1997). For this reason, interpreters generally insist
on sitting where they can clearly see the witnesses.
Alderman Letter, supra note 7.
(139.) Alderman
Letter, supra note 7.
(140.) Salimbene, supra
note 13, at 652. The importance of tone of voice
indicates that the interpreter's voice and accent can
significantly affect the impact of testimony. For
example, one observer at the first Nuremberg trial
complained that "[y]oung women with chirpy little
voices" interpreting the rough declamations of generals
diminished the power of their words. JOSEPH E. PERSICO,
NUREMBERG: INFAMY ON TRIAL 263 (1994).
(141.)
ALBERT MEHRABIAN, SILENT MESSAGES 43 (1971). Linguists
dispute the precision of Mehrabian's numbers, but do
agree that tone and body language constitute a
significant part of oral communication--often more
significant than the actual words spoken. "In a
conversation between two people more than half of the
message is communicated by gestures." Nash, supra note
8, at 6.
(142.) Rodriguez, supra note 13, at 133
(citing Hernandez v. New York, 500 U.S. 352, 370-71
(1991)).
(143.) Virginia Benneman, Legal
Interpreting: An Emerging Profession, 76 MOD. LANG. J.
445, 446 (1992).
(144.) Alexandre Rainof, How
Best to Use an Interpreter in Court, 55 CAL. ST. B.J.
196 (1980).
(145.) Glossika, Chinese Languages
and Dialects, http://www.glossika.com/en/dict/(last
visted Nov. 26, 2007).
(146.) Dominguez-Urban,
supra note 138, at 30.
(147.) A.S. Comyns-Carr,
The Tokyo War Crimes Trial, 18 FAR E. SURV. 109, 114
(1949).
(148.) Danner, supra note 100, at 91.
(149.) Benneman, supra note 143, at 259.
(150.) GASKIN, supra note 4, at 48.
(151.) Id. at 44. The characterization of
interpretation as an art is supported by the reputed
powers of a small number of "star" interpreters. At
Nuremberg, Wolfe Frank, a German-English interpreter,
was one such star: "Frank's translations were
delicious--he had a great command of the English
language. I used to go to the court-room sometimes in
the afternoon just to listen to him." Henry T. King,
Jr., The Nuremberg Context from the Eyes of the
Participant, 149 MIL. L. REV. 37, 43 (1995).
(152.) DEJONGH, supra note 79, at 49.
(153.) Id. at 30.
(154.) GAIBA, supra
note 1, at 104. Sentences in English and the Romance
languages follow the order subject--verb--object.
(155.) See GASKIN, supra note 4, at 44.
(156.) Id.
(157.) Indeed, cross-cultural
communication difficulties often arise even within the
same language; witness the old adage about America and
Britain being "two nations divided by a common
language."
(158.) Almqvist, supra note 60, at
748-49. In particular, participants in the trial and
officials of the tribunals may hold "opposing views on
acceptable rules of conduct [and] disagreed over the
meaning and requirement of justice in the context of
grave crimes." Id. at 747.
(159.) DEJONGH, supra
note 79, at 49.
(160.) Hernandez v. New York,
500 U.S. 352, 370 (1991); see also Rodriguez, supra note
13, at 140-41.
(161.) Cole & Maslow-Armand,
supra note 13, at 195; Michael J. Maloney & Allison
Taylor Blizzard, Ethical Issues in the Context of
International Litigation: "Where Angels Fear to Tread,"
36 S. TEX. L. REV. 934, 957-60 (1995).
(162.)
Cole & Maslow-Armand, supra note 13, at 196.
(163.) Alderman Letter, supra note 7.
Interpreters at the ICTR are educated in Rwandan
history, politics, language, and culture, even if they
do not interpret into or from Kinyarwanda, the primary
language spoken in Rwanda.
(164.) A low point of
the Tokyo trials occurred when the head of the language
section, with overall responsibility for the translation
of documents and testimony, declared to the court in
session that "it is an established fact that an
Oriental, when pressed, will dodge the issue." ARNOLD C.
BRACKMAN, THE OTHER NUREMBERG: THE UNTOLD STORY OF THE
TOKYO WAR CRIMES TRIALS 161-62 (1987).
(165.)
Joseph W. Rand, The Demeanor Gap: Race, Lie Detection,
and the Jury, 33 CONN. L. REV. 1, 14 (2000).
(166.) Id. at 16.
(167.) See, e.g.,
WILLIAM E. HEWITT, COURT INTERPRETATION: MODEL GUIDES
FOR POLICY AND PRACTICE IN THE STATE COURTS 158 (1995)
(discussing cultural differences between the deaf
community and the general public vis-a-vis body
language).
(168.) Rand, supra note 165, at 35.
(169.) Steve Norman, Assessing the Credibility
of Refugee Applicants: A Judicial Perspective, 19 INT'L
J. REFUGEE L. 273 (2007) (citing WAEJ v. MIMIA (2003)
FCAFC 188, 17 (Austl.)).
(170.) Isabelle R.
Gunning, Diversity Issues in Mediation: Controlling
Negative Cultural Myths. 1995 J. DISP. RESOL. 55, 59
(1995).
(171.) See discussion infra Part V.A--C.
(172.) GASKIN, supra note 4, at 38.
(173.) Coan, supra note 28, at 231.
(174.) GONZALEZ, supra note 108, at 18; Gibbons
& Grabau, supra note 13, at 296.
(175.)
ALICIA B. EDWARDS, THE PRACTICE OF COURT INTERPRETING 14
(1995).
(176.) See GASKIN, supra note 4, at 38
("If [an interpreter] interpreted from German into
English, he did not do English into German, so he was
spared from going back and forth in two languages, but
even so we found that he could not do it day after
day.").
(177.) Id.
(178.) Id.
(179.) Id.
(180.) GAIBA, supra note 1,
at 16.
(181.) GASKIN, supra note 4, at 39.
(182.) For example, compare the Nuremberg
strategy with the concept of team interpreting, which is
gaining support amongst translators. See Giovanna L.
Carnet, Team Interpreting: Does it Really Work?, ATA
CHRONICLE, Nov.-Dec. 2006, available at
http://www.atanet.org/chronicle/feature_article-nov-dec2006.php
(183.) GASKIN, supra note 4, at 39.
(184.) Id. at 38. For an interpreter's
perspective on the two-light system, see id. at 43.
(185.) GAIBA, supra note 1. at 72.
(186.) DEJONGH, supra note 79, at 29; see also
Mollie E. Pawlosky, When Justice is Lost in the
"Translation": Gonzalez v. United States, an
"Interpretation" of the Court Interpreters Act of 1978,
45 DEPAUL L. REV. 435, 467 (1996) (noting that an
interpreter should be not only bilingual, but also
"bicultural" in order to ensure the accuracy of
interpretations).
(187.) Alderman Letter, supra
note 7.
(188.) GASKIN, supra note 4, at 46.
(189.) Alderman Letter, supra note 7.
(190.) Siegfried Ramler, Origins and Challenges
of Simultaneous Interpretation: The Nuremberg Trial
Experience, in LANGUAGES AT CROSSROADS 438 (Deanna
Lindberg Hammond ed., 1988).
(191.) Id.
(192.) A good example is Jean Meyer, who worked
as a French-German interpreter at the first Nuremberg
trial. Meyer was particularly prized because he had
studied medicine before World War II and was therefore
familiar with relevant technical terminology. Meyer
parlayed his renown within the profession into steady
work at international medical conferences and later
became Charles de Gaulle's personal interpreter.
Wartenberg, supra note 95, at n.19.
(193.) ANN
TUSA & JOHN TUSA, THE NUREMBERG TRIAL 266 (1983).
(194.) GAIBA, supra note 1, at 101.
(195.) Id. at 102. For example, at the first
Nuremberg trial, at least five of the defendants
(Schacht, Fritzsche, Speer, Goring, and Hess) spoke
excellent English, but all insisted on having their
examiners' questions translated into German. Id.
(196.) Witnesses demanding interpretation,
although they speak the language of the examiner, can
make the act of interpreting more difficult.
[S]uch situations often become problematic because a witness will
tend to start answering some questions before receiving the
interpretation. In that case, it becomes very difficult since the
witness will be speaking while the interpreter is still trying to
give a rendition.... In such cases I have actually seen the judges
ask the witness if s/he understands the language and ask if the
witness would kindly use the language in question. Often this just
saves judicial time, and that is what the judges are looking for.
Alderman
Letter, supra note 7.
(197.) Robert H. Jackson,
an Associate Justice of the United States Supreme Court
from 1941-1954, took a leave of absence from the court
to help establish the legal framework for Nuremberg
Trials and to serve as the Chief U.S. Prosecutor during
the first trial. See Whitney R. Harris, Justice Jackson
at Nuremberg, 20 INT'L L. 867 (1986).
(198.)
GAIBA, supra note 1, at 109.
(199.) Id.
(200.) Id.
(201.) Id. It should be noted
that despite Goring's ability to discredit the document
in the eyes of the court, this episode may not actually
have been an innocent (if heated) disagreement as to the
proper translation. The document in question contained
an otherwise innocent list of directions, but only
"Freimachung des Rheins" was written in quotation marks.
Id. at 117 n.50.
(202.) Howard S. Levie,
Prosecuting War Crimes Before an International Tribunal,
28 AKRON L. REV. 429, 432 (1995). A famous example of
this phenomenon occurred not at a war crimes trial, but
in the U.N. Security Council chamber during the Cuban
Missile Crisis. During a speech to the Council, U.S.
Permanent Representative Adlai Stevenson dared the
Soviet representative, Ambassador Zorin, to deny that
the U.S.S.R. had placed missiles in Cuba. As Zorin sat
silently, waiting for the interpreters' feed to play in
his headphones, Stevenson abruptly demanded, "Yes or
no--don't wait for the translation--yes or no?" Adlai
Stevenson, U.S. Ambassador to the United Nations, Cuban
Missile Crisis Speech to the U.N. Security Council (Oct.
25, 1962), available at
http://en.wikisource.org/wiki/AdlaiStevenson's_Cuban_Missile_Crisis
speech to the United_Nations_Security_Council.
(203.) GAIBA, supra note 1, at 103.
(204.) Coan, supra note 28, at 232.
(205.) Alderman Letter, supra note 7 ("The work
[at the ICTR] is so unlike any other type of
interpretation work I've been involved in that I believe
the only way to effectively learn what [the ICTR] does
is to be there in person and acquire a feel for what is
being done."). Because the work is so unusual, ICTR
interpreters, who must be highly skilled and experienced
in order to obtain the job in the first place, train in
the courtroom in a dead booth, in which an interpreter
can practice during a live session, i.e., an actual
court hearing or conference, without broadcasting his or
her interpretation. The interpreter's dead booth session
is usually recorded for review. Id.
(206.) See
Del Ponte, supra note 90 (providing an overview of the
practical difficulties inherent in prosecuting
international crimes). Del Ponte was Chief Prosecutor of
the ICTY and also previously served as Chief Prosecutor
for the ICTR. Wikipedia, Carla Del Ponte,
http://en.wikipedia.org/wiki/Carla Del Ponte (last
visited Nov. 26, 2007). For a brief overview of the
logistical challenges the ICTR faces, see Erik Mose, The
ICTR: Experiences and Challenges, 12 NEW ENG. J. INT'L
& COMP. L. 1 (2005). Judge Mose is President of the
ICTR and Presiding Judge of its first trial chamber. Id.
(207.) See Mose, supra note 206, at 8 (noting
that "translation of thousands of pages of documents
into the official languages of the Tribunal is often
required.").
(208.) See generally Mose, supra
note 206, at 8, 11. This leaves aside the hybrid
tribunals, which generally face less daunting linguistic
challenges than do the ICTR, ICTY, and ICC. Take, for
example, the situation at the SCSL: although some
defendants and witnesses may speak different tribal
languages or Krio, an English-based creole, the SCSL has
only one working language, English, which is also the
only official language of Sierra Leone. See Statute of
the Special Court for Sierra Leone, art. 24, Aug. 14,
2000, available at
http://www.sc-sl.org/Documents/scsl-statute.html.
(209.) See Part VI infra.
(210.)
Patricia M. Wald, International Criminal Courts--A
Stormy Adolescence, 46 VA. J. INT'L L. 319, 321 (2006).
(211.) Id. at 322.
(212.) Id.
(213.) Tadic Transcript, supra note 9, at T. 65
(noting that "[this Tribunal] is to a considerable
degree ... dependent on eyewitness testimony."); see
also Patricia M. Wald, Dealing With Witnesses in War
Crime Trials: Lessons from the Yugoslav Tribunal, 5 YALE
HUM. RTS. & DEV. L.J. 217, 220 (2002) (discussing
the ICTY's reliance on eyewitness testimony).
(214.) Justice Robert H. Jackson, Chief of
Counsel for the United States, Opening Statement (Nov.
21, 1945), in 2 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE
THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14
NOVEMBER 1945--1 OCTOBER 1946, at 102 (1947).
(215.) Meron, supra note 24, at 560.
(216.) Wald, supra note 213, at 217-19.
(217.) Id.
(218.) The modern tribunals'
lack of independent evidence-gathering capabilities
forces them to rely on supportive governments and
individuals. In theory, Security Council resolutions
require all member states to cooperate fully with the ad
hoc tribunals' requests and orders, including those for
the production of evidence. However, as Meron notes,
there is a "disconnection" between theory and practice:
[G]overnments do not always cooperate, and when they do are often
willing to share information only if its sources are kept
confidential.... The ICTY has devised a system ... permitting
confidential information sharing at the investigative and pretrial
stages but requiring disclosure if information is actually used in
evidence at trial. However, in recognition of the Tribunal's utter
dependence on the assistance of states, states supplying
confidential information are permitted to block its use at trial.
The ICTR has enjoyed the solid support of the government of Rwanda,
except when the ICTR prosecutor has tried to investigate crimes
allegedly committed by the Tutsi.
Id.
at 561.
(219.) See Ghosts of Rwanda, Rwanda
Today: The International Criminal Tribunal and the
Prospects for Peace and Reconciliation--An Interview
with Helena Cobban, FRONTLINE, Apr. 1, 2004, available
at
http://www.pbs.org/wgbh/pages/frontline/shows/ghosts/today/("The
ICTR prosecutors have been trying to establish the
historical record, but they have had to rely
overwhelmingly on witness testimony.").
(220.)
See Andrew J. Cappel, Bringing Cultural Practice into
Law: Ritual and Social Norms Jurisprudence, 43 SANTA
CLARA L. REV. 389 (2003) (discussing the role of social
norms on jurisprudence).
(221.) ICTY Statute,
supra note 40, arts. 2-5; ICTR Statute, supra note 40,
arts. 2-4; ICC Statute, supra note 40, arts. 5-8. I have
left aside for the purposes of this note the
controversial and as-yet-undefined crime of aggression
mentioned in article 5(1)(d) of the ICC Statute.
(222.) ICC Statute, supra note 40, art. 6.
(223.) Id. art. 7(1).
(224.) Id. art.
8(1). On the mens rea issues involved in the prosecution
of rape as a war crime, see Susana Sa Couto, Advances
and Missed Opportunities in the International
Prosecution of Gender-Based Crimes, 10 GONZ. J. INT'L L.
49 (2006).
(225.) See Mose, supra note 206, at
11 (observing that the mixture of cultures present at
hearings makes the legal system "sui generis").
(226.) Wald, supra note 213, at 235-36.
(227.) See, e.g., Del Ponte, supra note 90, at
553 (noting that at the ICTY, the trial chamber was
confronted with the use of a variety of ethnic epithets,
such as "chetniks," "ustashds," "Turks," or "balijas."
Each has a distinct etymology, denotative meaning, and
cultural significance.).
(228.) Id.
(229.) See, e.g., Coan, supra note 28, at 183
(discussing witnesses testifying in front of the ICTY
after being raped during the conflict in Yugoslavia).
(230.) Id. at 231. For a discussion of the
effect of trial delays on rape victim witnesses, see id.
at 223-24.
(231.) GASKIN, supra note 4.
(232.) Id. at 41.
(233.) Richard
Alderman, the ICTR interpreter, writes:
The biggest challenge for me personally can be the subject matter.
Some of the testimony that has to be interpreted can be difficult
to hear. One is interpreting real people, real tragedy. Here I am
referring to some of the more gruesome details of the genocide.
Dealing with subjects such as killing, rape, extermination and the
like on a daily basis can tend to wear down anyone. I am not saying
that it turns one into a basket case, but there are days where it
can be difficult to stomach .... There were a few occasions where I
had such difficulty with witness testimony I actually had to ask my
colleague to take over. Sometimes you go home saddened and drained.
But these are simply human reactions to human situations.
Alderman
Letter, supra note 7.
(234.) See Gibbons &
Grabau, supra note 13, at 281.
(235.) GASKIN,
supra note 4, at 40-41.
(236.) Id.
(237.) Id.
(238.) Id. This particular
error was caught in the daily review of the
interpretation transcript and was corrected in the
official record. However, as noted above, there is good
reason to doubt that the judges regularly checked the
corrected interpreters' transcript and no evidence that
the judges ever changed their minds on any particular
point due to a correction in the transcript. See supra
notes 130-33 and accompanying text.
(239.) See
supra note 90 and accompanying text.
(240.)
Wartenberg, supra note 95, at 156.
(241.)
Sometimes, double interpretation is deliberately used to
save resources-fewer language experts are needed overall
especially when the intermediate language is from the
same linguistic family as either the source or target
language. Id.
(242.) GASKIN, supra note 4, at
45.
(243.) Id.
(244.) Alderman Letter,
supra note 7. At first, due to a lack of qualified
interpreters, consecutive interpretation into and out of
Kinyarwanda was used. The ICTR did not introduce
simultaneous interpretation of Kinyarwanda into both
English and French into one of its trial chambers until
2001, more than four years after it began conducting
trials. ICTR, Eighth Annual Report to the General
Assembly and the Security Council, [section] 4, U.N.
Doc. S/2003/707, A/58/140 (July 11, 2003). The switch to
simultaneous interpretation made proceedings about 25%
faster than they were when only consecutive
interpretation was used. Id. The ICTR now runs its own
in-house simultaneous interpretation training courses in
Kinyarwanda. ICTR, Ninth Annual Report to the General
Assembly and the Security Council, [section] 74, U.N.
Doc. S/2004/601, A/59/183 (July 17, 2004).
(245.) Of course, this concern is not limited to
international criminal tribunals. In the various
tribunals of the European Union, most prominently the
European Court of Justice, much ink has been spilled
lamenting the delays caused by the necessity of
translating documents into multiple languages. For
example, Ian S. Forrester, a Brussels-based lawyer who
practices regularly in front of the European tribunals,
notes:
[F]or reasons of translation, our judgments cannot be delivered
until several weeks after they have been finalised and where the
judgment is especially long, the delay can be up to a few months.
This problem recurs throughout the procedure as the pleadings
lodged in each case have to be translated. The situation is such
that it risks jeopardising one of the achievements in
Community justice to which the Court attaches great importance,
namely the availability of the judgments in all of the languages on
the day of the judgment.
Ian S.
Forrester, The Judicial Function in European Law and
Pleading in the European Courts, 81 TUL. L. REV. 647,
696-97 (2007).
(246.) Mose, supra note 206, at
11.
(247.) See Nice & Vallieres-Roland,
supra note 15, at 365-72.
(248.) See, e.g., id.
(discussing the procedural innovations geared toward
speeding up trials).
(249.) ICTY Weekly Press
Briefing, (Sept. 20, 2006), available at
http://www.un.org/icty/briefing/2006/PB060920.htm.
(250.) Id.
(251.) I have chosen to focus
on these aspects of the ICTY Rules because the ICTY was
the first to address this issue explicitly and because
the ICTY Rules' treatment of it is the most extensive.
Later, in 2006, the ICTR adopted rules similar to those
adopted by the ICTY. Rule 92bis of the ICTR Rules
contains language identical to Rules 92bis and 92quater
of the ICTY Rules, but the ICTR Rules do not include a
rule equivalent to Rule 92ter of the ICTY Rules. Compare
ICTY Rules, supra note 63, at R. 92bis, with ICTR Rules
supra note 63, at R. 92bis. The Rules of Procedure and
Evidence of the ICC contain no specific provision
dealing with the admissibility of written evidence
offered in lieu of oral testimony. Int'l Criminal Court,
Rules of Procedure and Evidence, U.N. Doc.
PCNICC/2000/I/Add.1 (2000) available at
http://www.icc-cpi.int/vtf.html (Click on "English"
hyperlink under the "Rules of Procedure and Evidence of
ICC heading"). The ICC Rules do state, more generally,
that a trial chamber of the ICC may admit previously
recorded audio, video, or written testimony of a
witness, so long as (1) both parties have had an
opportunity to examine the witness, and (2) if the
witness is present before the trial chamber, he or she
does not object to the submission of the previously
recorded testimony. Id. at R. 68.
(252.) Since
it was enacted in 2004, Rule 92bis has been a frequent
subject of scholarly discussion. Commentaries have
focused primarily on these two concerns. See, e.g., Ari
S. Bassin, Dead Men Tell No Tales: Rule 92bis--How the
Ad Hoe International Criminal Tribunals Unnecessarily
Silence the Dead, 81 N.Y.U.L. REV. 1766 (2006); Nice
& Vallieres-Roland, supra note 15; Patrick L.
Robinson, Rough Edges in the Alignment of Legal Systems
in the Proceedings at the ICTY, 3 J. INT'L CRIM. JUST.
1037 (2005). See generally the Journal of International
Criminal Justice's symposium issue: The ICTY 10 Years
On: The View from Inside, 2 J. INT'L CRIM. JUST. 353
(2004).
(253.) ICTY Rules, supra note 63, at R.
92bis.
(254.) Id. at R. 92bis (A).
(255.) Id. The Rule provides:
(i)
Factors in favour of admitting written statements or
transcripts include whether the evidence in question:
(a) is of a cumulative nature, in that other
witnesses will give or have given oral testimony of
similar facts;
(b) relates to relevant
historical, political, or military background;
(c) consists of a general or statistical
analysis of the ethnic composition of the population in
the places to which the indictment relates;
(d)
concerns the impact of crimes upon victims;
(e)
relates to issues of the character of the accused; or
(f) relates to factors to be taken into account
in determining sentence.
(ii) Factors weighing
against admitting written statements or transcripts
include whether:
(a) there is an overriding
public interest in the evidence in question being
presented orally;
(b) a party objecting can
demonstrate that its nature and source renders it
unreliable, or that its prejudicial effect outweighs its
probative value; or
(c) there are any other
factors which make it appropriate for the witness to
attend for cross-examination.
Id. at R.
92bis(A)(i)-(ii).
(256.) See id. at R. 92bis(B).
(257.) Id.
(258.) Id. at R. 92bis(C).
(259.) Id. at R. 92ter(A). Rule 92ter is a
codification of a ruling by the Appeals Chamberin the
Milosevic case that, as a matter of law, Rule 89(F) of
the ICTY Rules permits the introduction of written
evidence, provided the three listed conditions are
fulfilled. Prosecutor v. Slobodan Milosevic, Case No.
IT-02-54-AR73.4, Decision on Interlocutory Appeal on the
Admissibility of Evidence-in-Chief in the Form of
Written Statements (Sept. 30, 2003); see also Prosecutor
v. Slobodan Milosevic, Case No. IT-0254-AR73.4,
Interlocutory Appeal of the Prosecution Against the
Decision on Prosecution Motion for the Admission of
Evidence-in-Chief of its Witnesses in Writing (May 13,
2003). The Appeals Chamber's interpretation of Rule
89(F) in these rulings was controversial, and the
addition of Rule 92ter makes reference to Rule 89(F)
unnecessary.
(260.) ICTY Rules, supra note 63,
at R. 92quater (A).
(261.) Id. at R. 92quater
(B).
(262.) Id.
(263.) Nice &
Vallieres-Roland, supra note 15, at 365-72.
(264.) See Hench, supra note 13, at 269-72
(discussing a case where the Ninth Circuit Court of
Appeals criticized a district court ruling because a
defendant was denied an interpreter).
(265.) Id.
(266.) ICCPR, supra note 36, art. 14(3)(f).
(267.) See, e.g., JOHN FALLAHAY, RIGHT TO A FULL
HEARING 9 (2000); Hench, supra note 13, at 269; Stewart
Kwoh, Building Bridges to Justice, 9 ASIAN L.J. 201
(2002); Pantoga, supra note 13, at 610-11.
(268.) ICCPR, supra note 36, art. 14(3).
(269.) Id.
(270.) Id.; see, e.g., Baker,
supra note 13, at 596; Cole & Maslow-Armand, supra
note 13, at 196; Sharon Meadows, Implementing the Right
to Counsel in Post-Apartheid South Africa, 29 GEO. WASH.
J. INT'L. L. & ECON. 453 (1995).
(271.) See
infra Part VII.
(272.) See Mose, supra note 206,
at 13 ("The trial judges come from a wide variety of
legal cultures; predominately African, European, and
Asian.").
(273.) SUNGA, supra note 21, at
288-90.
(274.) See Mose, supra note 206, at 14.
(275.) Hernandez v. New York, 500 U.S. 352, 371
(1991).
(276.) Id. at 352-80. The Supreme
Court's review dealt primarily with a claim that the
prosecutor had actually dismissed jurors because of
their Hispanic ethnicity, not because of what language
they spoke. The Court found that the trial judge had not
exceeded his discretion in determining that the
prosecutor had no discriminatory intent. Id. However, it
declined to hold that the practice of disqualifying
bilingual jurors is always constitutional. For an
in-depth assessment of Hernandez, see Hsieh, supra note
116.
(277.) See Mose, supra note 206, at 13
(discussing why dissents are rare in international
tribunal decisions).
(278.) See Coan, supra note
28, at 230.
(279.) 500 U.S. at 357-63 (analyzing
the prosecutor's peremptory challenges under the Batson
test and finding, inter alia, that the fact that
multilingual jurors might not defer to the court
interpreter's official translation is a legitimate
concern and that dismissal on the basis of linguistic
ability is race-neutral despite the correlation between
language and race)..
(280.) Prosecutor v. Mucic
et al., Case No. IT-96-21, Transcript, at 6797-98 (Sept.
4, 1997).
(281.) See discussion supra Parts
III-IV.
(282.) See UN: Budget, staff cuts put
strain on Int'l Court of Justice, Court President Tells
General Assembly, M2 PRESSWIRE, Oct. 28, 1997, available
at http://www.globalpolicy.org/wldcourt/icjfinan.htm.
(283.) SUNGA, supra note 21, at 313-14. The ICTY
and ICTR Statutes both require the trial chambers to
ensure that trials are "fair and expeditious and that
proceedings are conducted in accordance with the rules
of procedure and evidence." ICTY Statute, supra note 40,
art. 20; ICTR Statute, supra note 40, art. 19.
(284.) See ICTY Rules, supra note 63, at R. 98
("A Trial Chamber may order either party to produce
additional evidence. It may proprio motu summon
witnesses and order their attendance.").
(285.)
See, e.g., Prosecutor v. Kupreskic, Case No. IT-95-16,
Decision on Defence Motion to Summon Witnesses, (Oct. 6,
1998). In that case, the court stated:
Rule 98 ("Power of Chambers to Order Production of Additional
Evidence"), which provides that "a Trial Chamber may order either
party to produce additional evidence. It may itself summon
witnesses and order their attendance", is inapplicable to the case
at hand insofar as it concerns the production of additional
evidence, whereas what is requested by defence counsel in this
instance is an order of the Chamber summoning witnesses to testify
as court witnesses....
Id. See also
Press Release, The Hague, Blaskic Case: The Chamber
Orders the Appearance as Witnesses of General Philippe
Morillon (Former UNPROFOR Commander), Colonel Robert
Morillon (Former BRITBAT Commander), A Former Chief of
Staff of the Croatian Defence Council (HVO), Muslim
Commanders of the Army of Bosnia and Herzegovina, and of
the Former Chief of the ECMM (Apr. 6, 1999).
(286.) SAFFERLING, supra note 20, at 219.
(287.) See Coan, supra note 28, at 232 ("Parties
bear the responsibility to check the transcripts for
accuracy and make objections as soon as errors are
discovered.").
(288.) U.N. Diplomatic Conference
of Plenipotentiaries on the Establishment of an
International Criminal Court, Report of the Preparatory
Committee on the Establishment of an International
Criminal Court, [paragraph] 265, U.N. Doc. A/51/22/Add.1
(1996).
(289.) See, e.g., Mose, supra note 206,
at 14 (representing an ICTR judge who views
interpretation as a technical issue).
(290.) Id.
(291.) Coan, supra note 28, at 231.
(292.) Alderman Letter, supra note 7.
The parties had to learn to pause before speaking. This has an
impact when lawyers are examining witnesses (especially when they
want to react quickly to impeach a witness during
cross-examination.) You often find lawyers speaking while the
interpreters are still interpreting. The consequences of this are
obvious. Interpreters can only interpret one person speaking at a
time.
Id.
(293.) See Danner,
supra note 100, at 91.
(294.) HANS FRITZSCHE,
THE SWORD IN THE SCALES 82 (D. Pyle & H. Fraenkel
trans., 1953), quoted in GAIBA, supra note 1, at 104.
Fritzsche was a senior Nazi official who held various
posts, eventually rising to be Joseph Goebbels' deputy
in the German propaganda ministry. Wikipedia, Hans
Fritzsche, http://en.wikipedia.org/wiki/Hans_Fritzsche
(last visited Oct. 24, 2007). He was tried in place of
the deceased Goebbels but was one of only three major
Nazi figures to be acquitted at Nuremberg. Id. However,
Fritzsche was soon after charged with other crimes and
eventually served time in prison. Id.
(295.)
FRITZSCHE, supra note 294, at 82.
(296.) Id.
(297.) GAIBA, supra note 1, at 104
(298.) FRITZSCHE, supra note 294, at 83. Sauckel
was Reich Defense Commissioner and Plenipotentiary for
Manpower from 1942 to 1945, and as such was in charge of
procuring and mobilizing slave labor. Matthew Lippman,
Crimes Against Humanity, 17 B.C. THIRD WORLD L.J. 171,
199 (1997) ("Sauckel, the Plenipotentiary General for
the Utilization of Labor, claimed that he was not
responsible for the abuses associated with the detention
and transportation of workers to Germany. The Tribunal,
however, noted that 'Sauckel had over-all responsibility
for the slave labor program.'"). He held honorary senior
rank in both the SA and SS. Avi Singh, Criminal
Responsibility for Non-State Civilian Superiors Lacking
De Jure Authority: A Comparative Review of the Doctrine
of Superior Responsibility and Parallel Doctrines in
National Criminal Laws, 28 HASTINGS INT'L. & COMP.
L. REV. 267, 291 (2005) ("Sauckel, a Nazi official who
was an Obergruppenfuehrer with both the SA and the SS,
was not guilty of Count 1 and 2, though he was guilty of
Counts 3 and 4."). The International Military Tribunal
eventually found Sauckel guilty, and he was hanged on
October 16, 1946. See Ellis Washington, The Nuremberg
Trials: The Death of the Rule of Law (in International
Law), 49 LOY. L. REV. 471, 489-90 (2003) (discussing the
date that Sauckel was executed).
(299.)
FRITZSCHE, supra note 294, at 83. The proposition that
Sauckel's testimony was largely untranslatable is, of
course, only Fritzsche's personal opinion; as far as the
Author can determine, no interpreter singled out Sauckel
as being particularly difficult to interpret. However,
the larger point--that speaking style greatly affects
the ability of interpreters to translate effectively--is
not controversial.
(300.) Barriga Interview,
supra note 6.
(301.) Alderman Letter, supra note
7.
(302.) Del Ponte, supra note 90, at 552.
(303.) See Prosecutor v. Akayesu, Case No. ICTR
96-4-T, Judgment, (Sept. 2, 1998).
The words Inkotanyi, Inyenzi, Icyitso/Ibyitso, Interahamwe and the
expressions used in Kinyarwanda for "rape," because of their
significance to the findings of the Chamber, are considered
particularly, as follows: The Chamber has relied substantially on
the testimony of Dr. Mathias Ruzindana, an expert witness on
linguistics, for its understanding of these terms. The Chamber
notes that Dr. Ruzindana stated in his testimony that in
ascertaining the specific meaning of certain words and expressions
in Kinyarwanda, it is necessary to place them contextually, both in
time and in space.
Id. [paragraph] 146.
(304.) Id.
(305.) See President of the
Int'l Tribunal for Rwanda, Report of the International
Criminal Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens Responsible for
Genocide and Other Such Violations Committed in the
Territory of Neighbouring States Between 1 January and
31 December 1994, [paragraph] 92, delivered to the
Security Council and the General Assembly, U.N. Doc.
S/1999/943, A/54/315 (Sept. 7, 1999) ("Another positive
development worth noting is the introduction of English
language classes for the detainees in order to
facilitate communications between them and the Tribunal
in the two official languages. The classes take place in
the UNDF and are paid for by the Tribunal.").
(306.) Jann Kleffner, Some preliminary Thoughts
on the Position of the Defence at the New International
Criminal Court and the Role of the Netherlands as the
Host State, in THE POSITION OF THE DEFENCE AT THE
INTERNATIONAL CRIMINAL COURT AND THE ROLE OF THE
NETHERLANDS AS HOST STATE 5 (Martine Hallers et al.
eds., 2000).
(307.) Smith Interview, supra note
5.
(308.) MISETIC, supra note 32, at 50.
(309.) Meron, supra note 24, at 578.
(310.) SAFFERLING, supra note 20, at 1.
(311.) Cristian Defrancia, Due Process in
International Courts: Why Procedure Matters, 87 VA. L.
REV. 1381, 1438 (2001). For example, argues Defrancia,
the increasing disfavor of anonymous witness testimony
by the ad hoc tribunals "represents a move toward a
stronger balance in favor of the rights of the accused."
Id.; see also supra notes 57-60 and accompanying text.
(312.) See ICC Statute, supra note 40, art. 5.
(313.) Id. art. 75.
(314.) Beresford,
supra note 33, at 630.
(315.) Just "in theory"
because convicted war criminals are often supported and
acclaimed by the members of the ethnic, religious, or
political groups in whose name they committed their
criminal acts.
(316.) Beresford, supra note 33,
at 630. Furthermore, the ICCPR, supra note 36, art.
14(6), guarantees defendants the right to a remedy for
breach of the right to a fair trial. The nature of this
potential remedy remains undefined in international
criminal law, but many, including the former Presiding
Judges of the ICTY and ICTR (Claude Jorda and Navanethem
Pillay, respectively (now both judges of the ICC)), have
argued for the monetary compensation of those wrongly
prosecuted or convicted. Beresford, supra note 33, at
633-40.
(317.) See Patricia M. Wald, Why I
Support the International Criminal Court, 21 WIS. INT'L
L.J. 513 (2003).
(318.) Wald, supra note 210, at
319.
(319.) Id. at 345-46.
Joshua
Karton, PhD Candidate, University of Cambridge. B.A.
2001, Yale; J.D. 2005, Columbia. I would like to thank
Jonathan Bush, whose seminar at Columbia Law School on
the Nuremberg Trials inspired this Article and who
provided help and advice far beyond the duty of a
teacher. Also, I am indebted to several people for their
improvements to drafts of this article: James Crawford,
Joseph Brubaker, Richard Albert, and my wonderful
parents, Michael Karton and Barbara Heller. I would like
to dedicate this article to Ann, who was the first and
will always be the true academic in my family.
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