I sometimes wonder if a belief in the capacity of a single global language to solve all our communication problems – that is, English – has infiltrated the thinking of the Court to its detriment. But one thing is for sure: the Court’s working languages will never fulfill all the communication needs of victims and other ICC constituents. The Court needs to take responsibility and find a way forward.
Leigh Swigart is a cultural and linguistic anthropologist who has worked for over 20 years in the field of international justice. As Director of Programs in International Justice and Society at Brandeis University International Center for Ethics, Justice and Public Life, she organized and oversaw the Brandeis Institute for International Judges, the Ad Hoc Tribunal Oral History Project, and many other programs touching on justice and human rights. Her most recent project, "Global Court, Local Languages: How the International Criminal Court Pursues Multilingual Justice," used an ethnographic approach to examine how the ICC accommodates the language needs of both its staff and its constituents, which include victims, populations affected by crimes and the international community more generally. Her study looked at the role and status of the court's working languages — English and French — as well as its almost three dozen situation languages, many of them from the African continent. The study sought to elucidate the whole constellation of challenges, considerations and complexities associated with multilingualism and cultural differences at the ICC. In 2020, she created the Language, Culture and Justice Hub, an online platform that seeks to promote inquiry into and share knowledge about the nexus of these three phenomena. A list of Swigart’s recent publications with links to accessible versions can be found here.
Interview conducted by Brittany Thayer (2023)
The interview has been conducted in the spring of 2023 and has been edited for clarity
Per Article 67 of the Rome Statute, the accused have the right “[t]o be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks”, as well as the right “[t]o have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks”. Given that victims can participate in cases before the International Criminal Court, what, if any, provisions exist for them to have access to translators and interpreters?
In terms of language-access guarantees for other participants in ICC justice processes, they do not exist in any formal sense. But in practice, the Court recognizes the need for persons besides accused persons – victims, members of affected communities, and so on – to understand proceedings, and it generally extends language services accordingly. If the Court is going to fulfill its mandate, it has to do this.
Let’s look at a couple of examples. In ICC trials, witnesses are generally of two kinds: crime-based witnesses and expert witnesses. Crime-based witnesses may well be victims as well, and then, of course, they need to have interpretation services for whatever language they have chosen to testify in. Crime-based witnesses may speak the language of the accused but not necessarily, so their testimony may actually entail the identification and training of an interpreter just for that single crime-based witness. There’s also the Office of Public Counsel for Victims. They need to communicate with the people who might apply to participate in a proceeding as a victim and with those who are ultimately accepted for this status. Sometimes this communication may entail interpretation in the field. There’s also the Public Information and Outreach Section. They have to do lots of communication around the work of the Court, and they have to do it in languages in which their audience can absorb the information. Then there’s the Victims Participation and Reparations Section. They have to generate application forms for potential victims, among other activities.
Many participants in ICC cases will only have familiarity with one legal system, notably civil law or common law. How does legal culture impact the work of translators and interpreters?
I would say that a bigger jump for interpreters and translators would be coming from a non-legal context into a legal interpretation and translation context. There are many professionals who have worked as conference interpreters before joining the Court. Conference interpretation is really focused on the message, so there’s a lot of synthesizing and skipping over false starts and so on. But a courtroom interpreter has to mimic the way in which the person testifying is speaking, in terms of emotion, false starts, hesitation, etc., because that’s what judges are listening to when they follow testimony through an interpretation channel.
There are also literary translators who may move into the international justice field. This happened, for example, when proceedings opened at the International Criminal Tribunal for the former Yugoslavia and there was a shortage of language service professionals working in Balkan languages. But it’s a very different endeavor to translate a legal judgment. Some of this has to do with the precision of legal language, and ensuring there is no ambiguity.
On top of a new context, translators and interpreters also need to adjust to some oddities around “ICC speak”. It is a sui generis institution and has created its own set of unique terms that interpreters and translators – and everyone else – definitely have to master. Some of this comes from the drafters of the Rome Statute and the Rules of Procedure and Evidence not wanting the ICC to reflect too much common law or too much civil law, and, in the process, they ended up creating some weird neologisms. Instead of saying “chefs d’accusation” in French, for example, at the ICC they say “les charges”. The term for “indictment” is “document containing the charges” in English and the very awkward “document contenant les charges” in French.
In your recent article, “The Impacts of English-Language Hegemony on the International Criminal Court”, you discuss the impact of English being the de facto lingua franca of the ICC. Can you elaborate on this from the perspective of victims participating in cases before the ICC?
At the beginning of the ICC’s life, there was much more of a sense that people in leadership positions should speak both working languages. Now there are very few French-speaking judges, and some Prosecutors and Registrars have been strictly anglophone. The overrepresentation of English speakers makes sense when one considers that most people hailing from the former Soviet Union or from many parts of Asia are more likely to have studied English than French.
But what happened during the first two decades of the Court’s operations, with so many crime situations in French-speaking African countries, was a real disconnect between what people were speaking during trials and the communications and documents that were coming out of these cases. Of course, many people in a “French-speaking country” do not actually speak French, or if they speak it, they do not read and write it. But, if they were to access a working language, or if they were to have someone help them, French would be the choice. So, there was some frustration that accused persons along with the trials’ “audiences” – that is, the affected communities and the victims – could not readily access a lot of information about the Court’s proceedings.
According to the regulations of the Court, all materials are supposed to be available in the two working languages. Almost everything generated at the Court is in English, however, so there’s an immense amount of translation going from English into French. There is no way that language service professionals can keep up with these demands, nor are they provided the resources to do so. The former head of the ICC Language Services Section, Alexandra Tomić, told me that a particular phrase, often found on the Court’s official English-language documents, captures this situation perfectly: “Version française à suivre”. More often than not, however, no French version ever materializes. Basically, if French is your only working language, you cannot perform your work at the Court. And you also cannot follow the work of the Court, which really affects victims who would like to stay informed. This was particularly true during the first trials of the Court because there were so many French-speaking countries in the mix. As the Court moves on to Ukraine, The Philippines, Colombia and so on, this is going to be different.
In practice, to what extent does the rarity of a participant’s native language affect their ability to have access to interpreters and translators? What additional challenges do “languages of lesser diffusion” present?
The less widespread a language is, the less likely there is going to be anybody who’s ever been trained as an interpreter or translator in that language, which means there may simply be no corps of language professionals for the ICC to call upon. They then have to be trained in-house. Some languages do not have a written tradition, so that cuts out a whole possible channel of communication with victims.
Then there’s the problem of relevant vocabulary, so the Court also has to work, especially in a language of lesser diffusion, with linguists and with older speakers in a language community to come up with terminology relevant to the Court’s work that will make sense to speakers of that language. Think of a term like “rape”. Some languages just don’t have a single lexical item that conveys what we in English would think of as the act of rape. And how might one convey the sense of “prosecution”, “burden of proof”, and many other critical terms? So, the rarity of a language does pose challenges for communication with victims that the Court needs to grapple with if it is going to fulfill its mandate vis-à-vis victims.
I also have observed that some people at the Court do not realize how certain Western views get in the way of their understanding of how language works in some countries. I was talking to people in the VPRS once and they described their efforts to create victims’ participation forms in Malian languages like Bambara, Tamasheq, and Songhay. As someone with a background in African sociolinguistics, I was thinking to myself, “Who do they think is going to read those victim participation forms?” The VPRS clearly made an assumption that if you speak a language, it is also the language you read and write in. In fact, there’s a phenomenon all over post-colonial Africa that has been termed “exographia”, which means that while most people use local languages for spoken communication, they tend to be literate in an external language, usually one left over from the European colonizer. So, the Court clearly did not understand the kind of functional differentiation typically found across the linguistic repertoires of Malians who might wish to apply for victim status. The creation of victim application forms in diverse languages was clearly well-intentioned, and maybe their existence on the Court’s website was important for symbolic purposes. But it would be much more likely that someone would look at a French language participation form, interpret it spontaneously into Bambara for an applicant who is illiterate, and then render the Bambara responses back into written French. Given the funding shortage for language services, the Court should perhaps do more “homework”.
How does the location and manner of prosecution (for example, with the ICC, at domestic courts, under universal jurisdiction, or with hybrid courts/ad hoc tribunals) affect participants’ ability to understand proceedings and access translation services?
It would seem logical to conclude that the closer to home a trial is, the less likely there will be language barriers or language disconnects. But, in fact, it hasn’t turned out that way. I gave a talk about ICC language services five or six years ago at a language and development forum in Dakar. Afterwards, language experts from judicial systems in countries around Africa approached me to ask, “Do you think the ICC would come and help us figure out how to train our court interpreters?” These countries simply do not have professionalized interpreters. Speaking a language and providing good language services or interpretation, especially in a judicial context, are not the same thing.
There was a hybrid proceeding for the Extraordinary African Chambers in Dakar, and it was great that former Chadian dictator Hissène Habré was tried in another African country. But beyond French being the official language of both Senegal and Chad, there was no linguistic advantage. They still had to have interpretation for Chadian languages.
Universal jurisdiction is the hardest communication scenario, I think. By all accounts, there was very poor communication in Arabic about the trials of Syrians in Germany and in Sweden, and people back in Syria couldn’t really follow the proceedings. But a domestic judiciary in northern Europe does not necessarily have the expertise or personnel to do this kind of communication effectively. So, universal jurisdiction is, in a way, the “weakest link”, both in terms of jurisdictional legitimacy and communication know-how.
The ICC’s Language Services Section has developed over the years a high level of experience in cross-language communication. However, the Assembly of States Parties is constantly cutting their budget, and this is at a time when the number of languages relevant to ICC situations is rapidly expanding. The people who work in Language Services feel very unsupported and unlistened to, despite the fact that nothing would be accomplished at the ICC without translation and interpretation. It’s very surprising that the Assembly of States Parties does not seem to recognize how foundational the work carried out by language professionals is to the whole justice endeavor. I sometimes wonder if a belief in the capacity of a single global language to solve all our communication problems – that is, English – has infiltrated the thinking of the Court to its detriment. But one thing is for sure: the Court’s working languages will never fulfill all the communication needs of victims and other ICC constituents. The Court needs to take responsibility and find a way forward.
About the interviewer: Brittany Thayer is a master’s student in the International Security program at Sciences Po, with concentrations in Intelligence and Human Rights. She previously worked as a due diligence investigator and obtained a bachelor’s degree in Linguistics from Boston University.