I just had a full and very interesting day, and I felt like I needed to share some thoughts here on the blog in two different posts – relating to two different events – but that share the same theme: the problems international justice encounters when its meets “foreign” culture.
There is of course a certain amount of irony in the title, as it can be discussed whether “international” justice can encounter a “foreign” anything – that is, until we meet extraterrestrial cultures – but it is hard to deny that for all its international-ness (and it does try to accommodate different legal cultures), international justice, and international criminal justice in particular, rests on Western-standards and concepts of procedure, law, and justice.
Hence, when international justice encounters and has to work with non-Western cultural paradigms, problems prop up. Part II will be particularly more on-topic in this regard, but I feel like Part I relates as well, and so now comes the time that I actually tell you what this is all about.I attended today at the International Criminal Court (ICC) a rather impromptu status conference in the Banda & Jerbo case. Impromptu because it was announced only last Friday, and that it had been clearly understood at the last Status Conference which took place on the 26 of last August that there would be no more status conferences and that the next step would be the Confirmation of Charges Hearing, scheduled on 22 November.
A quick FYI: The Banda & Jerbo Case at the ICC concern Mr. Abdallah Banda Abakaer Nourain (Banda) and Mr. Saleh Mohammed Jerbo Jamus, two rebel leaders from Darfur – which is a situation under the jurisdiction of the Court following a Security Council referral in 2005 – who are suspected essentially of attacking African Union peacekeepers in Haskanita in South Darfur, which constitutes a war crime under article 8(2) of the Rome Statute.
The reason that a status conference was called on such short notice and unexpectedly is that the Registry of the ICC – the organ of the Court that is in charge of all the non-judicial aspects of the administration and the servicing of the Court – reported last week that they had extreme difficulty in finding and training suitable candidates to serve as interpreters in Zaghawa, the defendants’ native tongue.
The Registry Report explained the various difficulties encountered in finding candidates. I retained the 3 majors issues raised, quoting from the Report:
§3: “Zaghawa is a rare language which is only spoken by approximately 200,000 speakers of Zaghawa in total including approximately 75,000 in Sudan and 87,000 in Chad. In addition, after several missions aiming to identify potential Zaghawa interpreters, it is found that the level of English or French of the general Zaghawa speaking population is low and thus only few candidates were found to have sufficient knowledge of English, French or Arabic qualifying them to be trained by the Court to perform Courtroom Zaghawa interpretation.”
§4: “In accordance with the assessment by the Security and Safety Section, many of the few above-mentioned candidates identified by the STIC who have sufficient knowledge of English or French failed the Court security vetting on the following grounds:
- Unsuitable association;
- Severe trauma and
- Risks to family still living in the conflict.“
§8: “In terms of the training for interpretation, the fact that Zaghawa is not a “written” language has caused significant difficulties. A STIC Arabic translator who has started learning Zaghawa few weeks ago reports that it is a rather difficult language to learn due to the lack of written Zaghawa as well as that it is not as close to Arabic as originally thought.“
To summarize, the three major difficulties encountered by the Registry are:
- the rarity of the Zaghawa language, and the even greater rarity of Zaghawa speakers that also speak either English, French or Arabic – an obvious requirement to be an interpreter at the ICC (especially English & French, which are the two working languages of the Court);
- security issues for the few suitable candidates they found – the Court, to operate correctly, needs to make sure its interpreters are irreproachable and neutral, and therefore need to be sufficiently removed from the conflict and to any form of pressure, such as threats against their family;
- Zaghawa, being an oral language, needs considerable work to adapt it to the Court’s working methods – which relies among other things on transcripts.
During the Status Conference, the Registry went on to explain that other difficulties involved the fact that most judicial concepts employed by the Court were completely alien to Zaghawa culture – meaning quite simply that there are no Zaghawa words for many terms and expressions used by the Court.
Registry estimates that once it finds suitable candidates, it will need 6 months to train them – at the very least 4 months, but in such cases, Registry prefers to express some reserves as to the quality of the interpretation. The question of the quality of the interpretation is something international criminal tribunals have had to deal with for quite a while now. Bad interpretation – with all the negative consequences that has on rendering Justice – has in the past plagued other international tribunals, such as the Special Court for Sierra Leone, or the Special Panels in East Timor (see Part II).
For now, we are still awaiting the decision of Pre-Trial Chamber I’s Single Judge Cuno Tarfusser on how the Court will proceed with this considerable challenge. Judge Tarfusser’s decision will be rendered in writing in a few days.
Regarding the Confirmation of Charges hearing supposed to take place on 22 November, Defence – which has proven to be extremely cooperative in the proceedings so far – has offered that the Defendants will waive their right to attend the hearing so as to circumvent any linguistic difficulties.
A potential solution would be to recourse to the “chuchotage” technique – that is, consecutive interpretation, which requires less training than simultaneous cabin translation, which is the standard technique in multilingual trials. Defence has however expressed on this point some reserves – and not without reason: “chuchotage” makes hearings longer and far more laborious, and the quality of the interpretation is lessened.
Judge Tarfusser could, however, choose this technique as a temporary solution so as not to delay too considerably the start of the trial – should the proceedings go farther than the Confirmation of Charges hearing (another similar case, the Abu Garda case, was thrown out by the Judges for lack of evidence). We will see what his decision says, and I will post an update to this post when it is made public.
This issue is probably far less glamorous than Naomi Campbell’s visit to the Special Court for Sierra Leone, and certainly won’t make headlines. And yet, it is far more important to the delivery of a fair international justice, which is essential to its legitimacy and survival. The right to a fair trial includes the right for an accused to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court.
Behind the curtains, the personnel of the ICC is hard at work, and faces these considerable challenges, to make sure that that right is guaranteed.
I can’t help but regret that it so often goes unnoticed.